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People v. Burfeindt

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


July 15, 2009

THE PEOPLE OF THE STATE OFNEW YORK, TOWN OF LLOYD COURT PLAINTIFFS,
v.
JEFFREY BURFEINDT, JEFFREY-CHARLES, DEFENDANTS.

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

SUMMARY ORDER

The Clerk has sent to the court for review a notice of removal filed pursuant to 28 U.S.C. §§ 1441 and 1446 by defendants Jeffrey Burfeindt and Jeffrey-Charles. (Dkt. No. 1.) Also before the court is defendants' motion to proceed in forma pauperis. (Dkt. No. 2.)

Defendants' motion to proceed in forma pauperis is granted. However, a review of the notice of removal convinces the court that remand is required here. Under 28 U.S.C. § 1441, removal of a state court action to federal court is proper only if the action falls within the original subject matter jurisdiction of the federal court. See Fax Telecommunicaciones Inc. v. AT & T, 138 F.3d 479, 485-86 (2d Cir. 1998). Here, the court's original subject matter jurisdiction is invoked pursuant to 28 U.S.C. § 1331,*fn1 which provides federal jurisdiction over cases involving federal law. However, the notice of removal is otherwise completely incoherent, and is not accompanied by a complaint. Thus, the court cannot discern what the nature of the state action is, whether it actually implicates issues of federal law, or even whether it is a criminal or civil case. Accordingly, as bald assertions of federal jurisdiction will not support removal, see, e.g., Cashman v. Rosenberger, No. 105CV0640GLSDRH, 2005 WL 1331127, at *1-2 (N.D.N.Y. June 1, 2005), the court remands this action sua sponte to the state court pursuant to 28 U.S.C. § 1447(c).

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that defendants' motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further

ORDERED that the petition for removal (Dkt. No. 1) is DISMISSED; and it is further

ORDERED that this matter be REMANDED to the state court in which the proceeding was commenced; and it is further

ORDERED that the Clerk of the Court serve a certified copy of this Order to the state court; and it is further

ORDERED that the Clerk of the Court provide a copy of this Order to the parties.

IT IS SO ORDERED.


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