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Deveer v. Government Employees Insurance Co.

September 26, 2008

WILLIAM B. DEVEER, PLAINTIFF,
v.
GOVERNMENT EMPLOYEES INSURANCE CO. (GEICO), DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Pro se Plaintiff William B. Deveer ("Plaintiff") commenced this action against Defendant Government Employees Insurance Co. (GEICO) ("Defendant" or "GEICO") in the Supreme Court of the State of New York, County of Nassau, on or about October 3, 2007, alleging that Defendant discriminated against Plaintiff in violation of New York State Executive Law § 296. On October 24, 2007, Defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. Presently pending before the Court is (1) Plaintiff's motion to remand this action to the Supreme Court of the State of New York, County of Nassau, (2) Defendant's motion to strike Plaintiff's purported Amended Complaint, (3) Plaintiff's motion to quash Defendant's motion to strike, (4) Plaintiff's motion for joinder pursuant to Federal Rule of Civil Procedure 20, and (5) an appeal of Magistrate Judge A. Kathleen Tomlinson's May 30, 2008 Order ("May 30 Order") denying Plaintiff's request for a court-ordered subpoena for a deposition. For the reasons set forth herein, the pending motions and Appeal are DENIED.

BACKGROUND

I. Procedural Background

As noted, Plaintiff filed this action in the Supreme Court of the State of New York, County of Nassau, on or about October 3, 2007. On October 24, 2007, Defendant filed a Notice of Removal in this Court removing the action based on diversity of citizenship.*fn1 Plaintiff is a resident and citizen of the State of Washington, and Defendant is incorporated in Delaware and has its principal place of business in Maryland. (Notice of Removal ¶¶ 3-5, 8.) Additionally, Plaintiff demands $500,000.00 in damages, clearly in excess of the $75,000.00 amount in controversy threshold. (Id. ¶ 6; 28 U.S.C. § 1332.)

On November 2, 2007, Defendant served and filed its Answer to the Complaint. (Docket Entry 3.) On November 14, 2007, Plaintiff served Defendant and an individual, Ralph Carrozza ("Carrozza"), with a purported amended complaint, which is identical to the original Complaint except it lists Carrozza as an individual defendant and corrects a typographical error on the second page of the Complaint. (Pl.'s Mot. to Remand, Ex. B.) Carrozza is a New York citizen. (Carrozza Aff. ¶ 2.) Notably, the caption of the purported amended complaint refers to the Supreme Court of the State of New York, County of Nassau, not this Court. (Pl.'s Mot. to Remand, Ex. B.) The purported amended complaint was not filed with this Court. Five days after serving Defendant and Carrozza with the purported amended complaint, Plaintiff filed the pending motion to remand, which included, as an exhibit thereto, the purported amended complaint. (Id.)

On November 29, 2007, Defendant opposed Plaintiff's motion to remand and filed a cross-motion to strike the purported amended complaint. On December 4, 2007, Plaintiff opposed Defendant's motion to strike and also filed a motion to quash Defendant's motion to strike the purported amended complaint. Defendant's motion to strike was fully briefed on December 7, 2007.

On December 12, 2007, Plaintiff filed an unauthorized sur-reply to the motion to strike, which Defendant requests that the Court disregard.

On January 4, 2008, the parties appeared before Magistrate Judge Tomlinson for an initial conference. Thereafter, the parties proceeded with discovery, including depositions. On February 29, 2008, Plaintiff filed a motion for joinder pursuant to Federal Rule of Civil Procedure 20 seeking to add a second individual defendant, William J. Todd ("Todd"), to the action. Defendant opposed the motion for joinder on March 11, 2008, and the motion was fully briefed on March 18, 2008.

Later that same month, Plaintiff made a letter motion to Magistrate Judge Tomlinson for a court-ordered subpoena for a deposition of the Federal Bureau of Investigation ("FBI"), which Judge Tomlinson denied by order dated May 30, 2008.*fn2 Plaintiff filed a timely appeal of such order on June 6, 2008.

II. Factual Background

Plaintiff is an Asian-American and Indian American male.

(Compl. ¶ 5(a).) Plaintiff was employed by GEICO from July 1996 to April 2006 at its Woodbury, New York office. (Id. ¶ 1.) Plaintiff was assigned to the "Re-issue Section" in 1996, which has "become a very specialized, high job content section." (Id. ¶ 3.) At some point, Plaintiff was promoted to "Grade 61 & Service Rep. II" based on excellent job performance. Plaintiff was earning approximately $40,000 per year, while entry-level representatives earned approximately $23,000 per year. (Id.) Plaintiff alleges that the Re-issue section is a career stop for promotion into the Underwriting Department because it involves analysis of underwriting criteria and training and testing in this area. (Id.)

Plaintiff contends that, despite having good work performance for nine years, on or about July 2005, he was demoted to an entry-level customer service representative position by a night shift supervisor named Andrew. (Id. ¶ 6(b).) Plaintiff believes the demotion was a result of his race, national origin and middle-eastern appearance. (Id. ¶ 9.) Plaintiff alleges that, by early 2005, GEICO management began viewing Plaintiff as a "suspicious character" based on allegations made by unknown individuals that Plaintiff "said suspicious things on the job of a terrorist nature." (Id.) Plaintiff contends that the demotion not only adversely affected his career path at GEICO, it also adversely affected his career opportunities at other insurance companies. (Id. ¶ 4.)

DISCUSSION

I. Removal

Section 1441 of Title 28 is the "general" removal statute. Section 1441 provides, in pertinent part, that "any civil action of which the district courts of the United States have original jurisdiction" may be removed to federal court. 28 U.S.C. § 1441(b). The original jurisdiction of federal district courts may be broken into two general categories: (1) diversity; and (2) federal question. See 28 U.S.C. § 1330 et seq. When removing pursuant to a federal court's diversity jurisdiction, Section 1441(b) does not allow removal if any of the parties "properly joined and served as defendants" are citizens of the forum state.

28 U.S.C. § 1441(b). It is well-settled that the party seeking to invoke a federal court's jurisdiction -- in this case, Defendant -- bears the burden of proving the case is properly in federal court. See United Food Local 919 v. Centermark Prop., 30 F.3d 298, 301 (2d Cir. 1994); Stan Winston Creatures, Inc. v. Toys "R" Us, Inc., 314 F. Supp. 2d 177, 179 (S.D.N.Y. 2003) ("When the removal of an action to federal court is contested, the burden falls squarely upon the removing party to establish its rights to a federal forum by competent proof.") (internal quotation marks and citations omitted). Additionally, whether an action was properly removed to ...


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