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In re Application of Backer

July 16, 2010

IN THE MATTER OF THE APPLICATION OF PAUL BACKER, PETITIONER, FOR AN ORDER PURSUANT TO 3102(C) OF THE CIVIL PRACTICE LAWS AND RULES TO COMPEL DISCLOSURE FROM,
THE UNITED STATES DEPARTMENT OF STATE, BY ITS CHIEF OFFICER THE HONORABLE HILLARY RODHAM CLINTON, RESPONDENT, THE IDENTITY OF DEFENDANTS JOHN DOE AND/OR JANE DOE BEING UNKNOWN TO THE PETITIONER, IN AN ACTION TO BE COMMENCED, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION & ORDER

Petitioner Paul Backer commenced this proceeding in Supreme Court for the State of New York, New York County, seeking an order pursuant to New York Civil Practice Law and Rules § 3102(c)*fn1 to, inter alia, compel the United States Department of State ("DOS") to produce certain documents relating to the termination of his employment at the International Science and Technology Center ("ISTC"). The New York Supreme Court issued an Order to Show Cause on January 14, 2010, instructing DOS to appear at a hearing and show cause why the court should not grant Backer's § 3102(c) application. (Notice of Removal, Ex. A ("Order to Show Cause")).

On February 3, 2010, DOS filed a notice of removal pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446(b) (Notice of Removal ¶ 3) (Docket No.1). On February 24, 2010, DOS filed a motion to dismiss the instant proceeding pursuant to Fed. R. Civ. P. 12(b)(1) and (6), and moved to vacate the New York Supreme Court's Order to Show Cause. (Docket No. 4) Thereafter, Backer filed a motion to remand this case to the New York Supreme Court. (Docket No. 14)

For the reasons stated below, Backer's motion to remand will be DENIED, and DOS's motion to dismiss and to vacate the Order to Show Cause will be GRANTED.

BACKGROUND

Petitioner Paul Backer was hired in 2007 for a four-year term as the Chief Legal Officer of the ISTC, which is based in Moscow. (Backer Aff. ¶ 12) ISTC was formed by the United States, Canada, the Russian Federation, Japan, and the European Union to support civilian scientific endeavors employing former weapons scientists of the Soviet Union. The goal of the ISTC is to reduce the proliferation of nuclear weapons. The organization has received hundreds of millions of dollars from DOS, from other federal agencies, from European Union agencies, and from EU member states. (Id. ¶ 13) ISTC hired Backer after DOS had nominated him for consideration. (Id.)

On March 11, 2008, Backer received an email from Andrew Goodman, a DOS official, informing him that a very serious matter had been brought to DOS's attention that needed to be addressed immediately. Backer was instructed to return to Washington, D.C. at once, and was told that his "activities at the ISTC are suspended."

(Id. ¶ 38; Notice of Removal, Ex. B (Mar. 11, 2008 email from Andrew Goodman to Paul Backer))

Goodman sent a later email on March 11, 2008, in which he indicated that Backer's supervisor had advised Goodman that he had concerns about Backer's job performance. Goodman's email further stated that, "[g]iven that opinion and because some of the reports that I received were rather inflammatory, there is a clear need for us to examine the situation." (Notice of Removal, Ex. C (Mar. 11, 2008 email from Andrew Goodman to Paul Backer))

In a March 23, 2008 email, Acting ISTC Executive Director Sergey Vorobiev formally suspended Backer. In that email, Vorobiev stated that he had received a letter from DOS reporting allegations against Backer that implicated the security of the Center and its staff. Vorbiev's email further stated that the allegations against Backer, if true, "may constitute violations of your Personal Services Contract, ISTC Ethics policies and other related Administrative Regulations." (Notice of Removal, Ex. E (Mar. 23, 2008 email from Sergey Vorobiev to Paul Backer)) Vorobiev wrote that DOS had requested Backer's immediate suspension until the matter was resolved. (Id.)

Backer claims that he does not know the substance of the allegations made against him, does not know who made the allegations against him, and that his efforts to discover the reasons for his suspension have been unsuccessful. (Backer Aff. ¶¶ 49, 51, 64)

In March 2009, ISTC sent a letter to Backer stating that his contract with ISTC would expire in August 2009 and would not be renewed. (Notice of Removal, Ex. F (Mar. 27, 2009 Letter from Adrian van der Meer to Paul Backer)) The letter explained that "[y]our current suspension is justified because of the fact that the safety and security of ISTC staff was endangered in February-March 2008 due to your personal behavior. There can be no lifting of the restrictions. That behavior is the sole reason for the suspension." (Id.) Backer contends that the statements in this letter are false and that he never endangered anyone. (Backer Aff. ¶ 59) Backer complains that his termination from ISTC was "based on a lie" and that he was "given no opportunity to rebut and to confront the so-called evidence against [him]." (Id. ¶ 61)

On January 14, 2010, Backer obtained an Order to Show Cause in New York Supreme Court requiring DOS to show cause why it should not be required

(1) to produce copies of documents, including emails, relating to petitioner's causes of action against certain unknown defendants (the "Unknown Defendants") for, among other things, a) tortious interference with petitioner's services contract as Chief Legal Officer for the [ISTC] in Moscow . . . b) defamation, per se, and c) possibly other tortious conduct, and 2) to produce information related to the identities and last known addresses for those individuals who may be Unknown Defendants. . . . (Notice of Removal, Ex. A)*fn2 In the papers accompanying his CPLR § 3102(c) motion, Backer states that he intends to bring suit "against those liable or potentially liable" and describes that this group "may include DOS and the individual officials of DOS who acted erroneously and injuriously against me, as well as others." (Backer Aff. ¶ 68)

DISCUSSION

Pending before the Court are Backer's motion to remand and DOS's motions to dismiss and to vacate the New York Supreme Court's Order to Show Cause.

Because this Court must first determine whether this action was properly removed, Backer's motion will be addressed first.

I.PETITIONER'S MOTION TO REMAND

Backer has moved to remand this action to New York Supreme Court, arguing that removal was "premature and improper" because "the removal statute requires that an initial pleading exist before a case is ripe for removal." (Pet. 4/7/10 Br. 2) Backer contends that his CPLR § 3102(c) motion for pre-complaint discovery does not constitute an "initial pleading" under the removal statute and that therefore remand is required. (Id.) He further contends that -- even if a CPLR § 3102(c) proceeding is removable -- this action was removed prematurely because ...


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