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Dunlop v. City of New York

October 3, 2006

ALEXANDER DUNLOP, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiff filed this action in the Supreme Court of the State of New York, New York County on December 16, 2005, alleging various state and federal causes of action arising out of his arrest during the Republican National Convention ("RNC") on August 27, 2004. On January 20, 2006, Defendants filed a notice of removal. Plaintiff moves the Court to remand the entire action to New York County Supreme Court. First, Plaintiff asserts that remand is appropriate based on a procedural defect, namely the alleged failure to provide written consent from each Defendant for removal, pursuant to 28 U.S.C. § 1441. Second, Plaintiff argues that 28 U.S.C. § 1441(c) requires remand of the entire case, or at the least the state claims, because state law predominates. In reply, Defendants claim there was no procedural defect. They also argue that Plaintiff waived his right to assert procedural defect by failing to allege it in his first Motion. Finally, Defendants argue that state law does not predominate and that Plaintiff's state and federal claims are not separate and independent, making remand under section 1441(c) inappropriate. For the reasons stated herein, Plaintiff's motion is denied.

I. Background

A. Statement of Facts

The following facts, as alleged in the Complaint, are assumed to be true for purposes of this Motion. On or about August 27, 2004, Plaintiff was riding his bicycle in New York City in the vicinity of the RNC when he saw barricades and people being arrested. (Pl.'s Mem. of Law in Supp. of Mot. for Remand of Improperly Removed Case and for Just Costs and Expenses, Including Attorney's Fees, Incurred Due to the Improper Removal, Ex. B ¶¶ 23-24 ("Pl.'s Mem.")) Plaintiff walked his bike to a barricade of police officers to determine what was happening and how to leave the scene. (Id. ¶ 25) Based on instructions from Defendant Officer John Doe 1, Plaintiff attempted to leave the area, but was placed under arrest. (Id. ¶¶ 26-27) Plaintiff alleges that while he was trying to determine the reason for his arrest, officers made malicious and rude comments. (Id. ¶ 29) Plaintiff was then placed in a car without windows where he waited for one and a half hours. (Id. ¶ 33)

Based on procedures established by Defendants for arrests made near the RNC, Plaintiff was then transported and detained in a holding facility at Pier 57. (Id. ¶ 35) Plaintiff asserts that this protocol intentionally and maliciously delayed his processing. (Id. ¶ 36) Plaintiff alleges that Pier 57 presented many health and safety hazards and had a chemical smell that made Plaintiff feel ill. (Id. ¶¶ 38-39) Plaintiff was taken to 100 Centre Street on the morning of August 28, 2004, where he was searched, finger printed, and placed in a cell. (Id. ¶¶ 44-45) That evening Plaintiff was arraigned and met with a lawyer for the first time. (Id. ¶ 46)

Plaintiff was charged with obstruction of governmental administration in the second degree, disorderly conduct, parading without a permit, and resisting arrest. (Id. ¶ 47) At his arraignment, the Assistant District Attorney ("ADA") assigned to Plaintiff's case sought to introduce a videotape as evidence. (Id. ¶ 48) The ADA represented that this was a complete, unedited recording of the events leading up to and including Plaintiff's arrest. (Id. ¶ 49) Later, however, Plaintiff's attorneys determined that the videotape had been edited, removing all footage of Plaintiff acting peacefully and of his interactions with Officer John Doe 1. (Id. ¶ 50)

B. Procedural History

Plaintiff, Alexander Dunlop, filed this action against Defendants, the City of New York, Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, Police Chief Joseph Esposito, Commanding Officer Thomas Graham, Deputy Chief John J. Colgan, the New York District Attorney's Office, District Attorney Robert Morgenthau, Police Officer Maya Gomez, Police Officer John Does 1-3, and the Hudson River Park Trust, alleging various state and federal law violations.

The Complaint was filed on December 16, 2005. Defendants filed a timely Notice of Removal on January 20, 2006, pursuant to U.S.C. §§ 1331, 1441, and 1446. In the Notice of Removal, Defendants asserted original jurisdiction for Plaintiff's claims arising under the U.S. Constitution and 42 U.S.C. § 1983. (Pl.'s Mem. Ex A ¶ 2) The Notice also asserts that "all defendants have consented to the removal of this action." (Pl.'s Mem. Ex. A ¶ 4)

On February 17, 2006, Plaintiff made his first Motion to Remand within the statutorily required thirty days after the filing of the Notice of Removal. See 28 U.S.C. § 1447(c). However, the first Motion was denied without prejudice for failure to follow the Court's Individual Practices, namely to first submit a pre-motion letter requesting permission to file a motion. At a pre-motion conference on March 16, 2006, the Court allowed Plaintiff to file his second Motion to Remand even though the thirty days had passed. Plaintiff served the instant Motion to Remand on March 31, 2006.

II. Discussion

A. Rule of Unanimity

Under 28 U.S.C. § 1447 Plaintiff has a right to bring a motion for remand on the basis of any defect in the notice of removal. There is general agreement among the courts that "[a]ll the defendants must join in seeking removal" from state court. Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960). This requirement is known as the rule of ...


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