Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newkirk v. Clinomics Biosciences Inc.

August 15, 2006

RUSSELL E. NEWKIRK, M.D. AND LISLE A. EATON, JR., M.D., PLAINTIFFS,
v.
CLINOMICS BIOSCIENCES, INC. AND CYTOMYX HOLDINGS, PLC A/K/A CYTOMYX HOLDINGS GROUP, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Newkirk and Eaton allege, inter alia, that Clinomics Biosciences, Inc. (Clinomics) and Cytomxy Holdings, PLC (Cytomx) breached a two-year employment contract. Pending is plaintiffs' motion to remand the case to the Supreme Court of New York, Albany County pursuant to 28 U.S.C. § 1447(c). See Dkt. No. 8. For the reasons that follow, the motion to remand is denied.

II. Facts

Newkirk and Eaton are licensed physicians in the State of New York specializing in pathology. See Pl. Compl., ¶¶ 1-2; Dkt. No. 1. On June 1, 2004, plaintiffs entered into a written two-year agreement with Clinomics. See id. at ¶ 5. Under the agreement, plaintiffs directed the day-to-day operations of Clinomics' histology laboratory and provided a combined total of six hours of pathology consulting services. See id. at ¶¶ 6-7. In exchange for their services, Clinomics agreed to pay each plaintiff the total sum of $60,000.00 annually at a bi-weekly rate of $2,307.70. See id. at ¶ 7. Clinomics also agreed to pay both plaintiffs a combined total sum of $300.00 per hour for each hour of consulting. See id. at ¶ 9.

In April 2005, Clinomics ceased the bi-weekly payments required by the agreement. See id. at¶ 11. Simultaneously, Cytomyx purchased Clinomics by acquiring all of its stock, see id. at ¶ 13, and plaintiffs contend that Cytomyx assumed all of Clinomics' contractual obligations when it did so. See id. at ¶ 14.

III. Procedural History

On March 29, 2006, plaintiffs filed a summons and complaint in the Albany County Clerk's office. See Pl. Memo; Dkt. No. 8. On April 6, service of process was made on Clinomics by personally delivering and leaving a copy of the summons and complaint with the New York Secretary of State's office. See id. Notice of service was sent by registered mail, return receipt requested, to Clinomics' registered agent and to the last known address of Clinomics c/o Mr. Stephen Turner, president of Clinomics. See id. On April 10, Clinomics' registered agent received service and signed the green return receipt card enclosed with the mailing.

See id.

On May 5, Cytomyx filed a notice of removal with the United States District Court for the Northern District of New York. See Dkt. No. 1. Despite the passage of thirty days, Clinomics did not consent to the removal of this action pursuant to 28 U.S.C. § 1446. On May 9, plaintiffs filed their affidavit of compliance with the Albany County Clerk's Office pursuant to their service obligations under New York Business Corporation Law section 307. See Karabel Aff., ¶ 9; Dkt. No. 8. On June 1, Cytomyx filed an answer. See Def. Ans.; Dkt. No. 4.

IV. Discussion*fn1

A. Remand

Plaintiffs maintain that the court should remand the action to state court because of a flaw in the removal procedure. 28 U.S.C. § 1447(c) "authorizes a remand on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction." LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir. 1994) (internal quotation marks and citation omitted). "On a motion to remand, the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper." Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 171 (S.D.N.Y. 2003) (internal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.