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State v. Stoddard

November 28, 2006

STATE OF NEW YORK --STATE UNIVERSITY OF NEW YORK -- UNIVERSITY AT BUFFALO, PLAINTIFF,
v.
ROLAINE K. STODDARD, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The Clerk of the Court has sent Defendant Rolaine K. Stoddard's Notice of Removal, see Dkt. No. 1, to the Court for its review.*fn1 In her Notice of Removal, Defendant asserts that this action is removable from state court to federal court because the debt that is the subject of the removed action "was created and sustained through civil rights violations and unlawful whistle-blower retaliation on the part of Plaintiff." See Dkt. No. 1 at 2.

II. DISCUSSION

Section 1441 of Title 28 of the United States Code allows for removal of an action filed in state court only if the action could have originally been filed in federal court. See Fax Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 486 (2d Cir. 1998) (citations omitted). A plaintiff may file a complaint in federal court only if that court has subject matter jurisdiction over the claims. The subject matter jurisdiction of the federal district courts is limited and is set forth generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available only when a federal question is presented, i.e., when the action "aris[es] under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331, or when the parties are of diverse citizenship and the amount in controversy, "exclusive of interest and costs," exceeds $75,000, 28 U.S.C. § 1332. In this case, Defendant claims that this Court has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331, the federal question statute.*fn2

Section 1446 of Title 28 of the United States Code governs the removal of a civil action from a state court to a federal court. This statute provides, in pertinent part, that

[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . .

28 U.S.C. § 1446(b).

Once a case is removed from a state court to a federal court, § 1447 governs the procedures that the courts and the parties must follow. Under this statute, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c) (emphasis added).*fn3

Apparently, Defendant is relying on the second paragraph of § 1446(b) to argue that the underlying state-court action first became removable to federal court on October 20, 2006, and that, therefore, her Notice of Removal is timely. See Dkt. No. 1, Notice of Removal at 1. Specifically, Defendant states that

[t]his case first became clearly removable to the Federal Court on October 20, 2006 after Plaintiff [acting as a defendant] served discovery documents upon the Defendant on Sept 30, and then conducted a Deposition of Defendant on Oct 20, 2006 for a related legal matter now being heard in the WNY Federal District Court before Judge Foschio. The line of questioning taken & the evidence presented during the Deposition by the NYS Attorney General's Office indicated that this case's subject matter had just been converted over from a stipulated issue between the parties to an issue now arguable at trial.

See Dkt. No. 1, Notice of Motion at 1.

The Court need not decide whether Defendant's Notice of Removal is timely because, even if it were, in order to avoid remand, she would still need to establish that ...


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