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Robert M. v. New York State Technology Enterprise Corporation

March 5, 2012

ROBERT M. CIFONELLI, PLAINTIFF,
v.
NEW YORK STATE TECHNOLOGY ENTERPRISE CORPORATION, EMPLOYEE NETWORK, INC. D/B/A "ENI", AND JOHN DOE(S) AND JANE DOE(S), DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Presently before the Court is a motion by plaintiff to remand this action, removed by defendant New York State Technology Enterprise Corporation ("NYSTEC") from New York State Supreme Court to this District, on September 8, 2011. Plaintiff asserts that the removal was defective because defendant Employee Network, Inc. ("ENI") did not consent to the removal. Plaintiff also seeks attorneys fees and costs associated with the motion. (Dkt. No. 7). Defendants oppose the motion (Dkts. No. 13, 15) arguing that ENI filed a timely letter brief with the Court expressing consent to the removal.

II. BACKGROUND

On June 24, 2011, plaintiff commenced this action against the two named defendants in New York State Supreme Court, Oneida County. On September 1, 2011, defendants were served with the Summons and Complaint. On September 8, 2011, NYSTEC filed a Notice of Removal to this Court. The basis for removal was that the complaint asserted claims involving the Americans with Disabilities Act, 42 U.S.C. § 12101 thereby presenting a federal question. The Notice of Removal was signed by Luke Davignon, attorney for defendant NYSTEC.

On September 29, 2011, Julie P. Apter, counsel for ENI, forwarded a letter to United States Magistrate Judge Andrew T. Baxter. The letter was filed with the Court on October 3, 2011. In the letter, counsel advised that she would be entering an appearance on behalf of ENI. However, she also stated:

Due to the fact that this matter was removed from State Court to Federal Court in the Northern District, I have recently completed the application for admission into the Northern District. I am presently admitted in the Western, Southern and Eastern Districts. I anticipate receiving admission shortly and as soon as that is received, will be filing the Notice of Appearance.

In the interim, counsel for the plaintiff has consented to an extension of time to answer. We requested an extension to October 15, 2011 in order to allow my admission to proceed. Counsel has also advised that a letter to you at this point would be sufficient.

Should the Court require a formal stipulation filed prior thereto, please advise and I will have someone admitted in the Northern District execute it.

On October 3, 2011, a Text Order was issued granting ENI's letter request. ENI was directed to answer or respond to the complaint on or before October 17, 2011. On October 12, 2011, Julie Apter filed a Notice of Appearance on behalf of ENI. On October 14, 2011, defendant ENI filed an answer to the complaint.

III. DISCUSSION

"A district court may remand only if removal was improper, i.e., if the notice of removal was procedurally defective." Mieschberger v. Dana Corp., 2011 WL 4916926, at *1 (E.D.N.Y. 2011) (citing 28 U.S.C. § 1447(c)).

Of relevance in this matter is Section 1447(c) which provides, in relevant part:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the ...


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