Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rafael Varela v. County of Rensselaer

September 30, 2011

RAFAEL VARELA, PLAINTIFF,
v.
COUNTY OF RENSSELAER, ET AL., DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pro se plaintiff Rafael Varela filed this suit against the defendants in New York State Supreme Court, Rensselaer County. On November 16, 2010, the defendants removed the case to this court pursuant to 28 U.S.C. §§ 1441 and 1446, invoking the court's original subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the court are Varela's motions seeking remand and sanctions; and defendants' motion to dismiss.*fn2 For the reasons that follow, Varela's motions are denied and defendants' motion to dismiss is granted in part and denied in part.

II. Background

Plaintiff's near-unintelligible pleadings makes it difficult for the court to determine the basis of the lawsuit. The complaint names twenty-eight defendants for a multitude of state and federal violations. In general, Varela alleges that due to various arrests, he was illegally prosecuted and detained in 2006, 2007, and 2008. He contends that these arrests caused anguish and fear for his life.

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) is well established and will not be repeated here. For a full discussion of the standard the court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

A. Motion for Remand

On December 1, 2010, Varela filed a motion to remand. He asserts two grounds in support of the motion. First, he contends that the removal was defective because a copy of the removal notice was not provided to him. Secondly, he claims that not all of the served defendants consented to the removal. Varela's contentions are without merit. In regards to the first ground, the very fact that Varela has filed a motion to remand belies his allegation that he was not provided a copy of the removal notice. Thus, it is clear that Varela knew about the removal and has exercised his rights accordingly.

Varela's second contention disputing consent by all the defendants is also without merit. Varela's complaint seeks redress pursuant to 42 U.S.C. § 1983. Federal and state courts have concurrent jurisdiction over suits brought pursuant to 42 U.S.C. § 1983. Haywood v. Drown, 129 S.Ct. 2108, 2111 (2009). Thus, "state courts as well as federal courts are entrusted with providing a forum for the vindication of federal rights violated by state or local officials acting under color of state law." Id. at 2114. Thus, consent by all the defendants is unnecessary.

Despite having concurrent jurisdiction, the issue still remains whether remand is warranted. Varela argues that remand to the state court is proper. In opposition, the defendants insist that federal court is the appropriate forum. There appears to be case law for both propositions. See Ojudun v. Daffy's Inc., No. 98 Civ. 6135, 2000 U.S. Dist. LEXIS 3585, at *2 (S.D.N.Y. Feb. 9, 2000) (collecting cases). In the Ojudun case, Southern District Court Judge Griesa ultimately accepted the removal. This court agrees that the better view is to accept the removal. Under the statute, a case may be removed when the federal district court has "original jurisdiction." 28 U.S.C. §1441(a). A federal district court has original jurisdiction when a case asserts a federal statutory cause of action. Here, Varela's case asserts a federal statutory cause of action, thus, the court has original jurisdiction. Accordingly, the motion for remand is denied.

B. Motion to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.