The opinion of the court was delivered by: Siragusa, J.
This removed case is before the Court on Defendants' motions (Docket Nos. 4 & 6) for summary judgment and to dismiss, and Plaintiff's cross-motion (Docket No. 11) to remand and award attorney's fees and costs. For the reasons stated below, the Court vacates the Notice of Removal and remands this matter to New York State Supreme Court and awards reasonable attorney's fees and costs to Plaintiff.
The Federal removal statute reads in pertinent part as follows: § 1446. Procedure for removal
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title [28 USCS § 1332] more than 1 year after commencement of the action..
§ 1447. Procedure after removal generally
(a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.
(b) It may require the removing party to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court.(a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.. 28 U.S.C. § 1446(a) & (b) and 1447 (a) & (b). The Federal Rules of Civil Procedure apply to civil lawsuits after they are removed from a state court. Fed. R. Civ. P. 81(c)(1).
Remand Statute Attorney's Fee Authorization
The remand statute provides for the discretionary award of attorney fees as follows:
(c) .An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.. 28 U.S.C. § 1447(c)(1996). ...