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.

Portaleos v. Shannon

United States District Court, Second Circuit

August 19, 2013

SHAUN PORTALEOS, Petitioner,
v.
GINA M. SHANNON; and R.M., a minor, Respondents. SHAUN PORTALEOS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

MEMORANDUM-DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

These consolidated actions concern the Department of Veteran Affairs's ("VA") obligation to obey an order of the Onondaga County, New York, Family Court ("Family Court") to produce an employee to testify in a child-custody proceeding. Now before the Court are the VA's Motions to vacate the family court's order and to dismiss, Petitioner-Plaintiff Shaun Portaleos's ("Plaintiff") Motions to consolidate and to compel, and cross-Motions for summary judgment. 12-CV-1359 Dkt. Nos. 8 ("Motion to Vacate"); 13 ("Motion to Consolidate" and "Motion to Compel"); 12-CV-1652 Dkt. Nos. 6 ("VA's MSJ" and "Motion to Dismiss"); 14 ("Plaintiff's MSJ"). For the following reasons, the Court grants the VA's Motion to Vacate and Plaintiff's MSJ, denies the remaining Motions, remands Plaintiff's child-custody proceeding to the Family Court, and remands Plaintiff's request for Dr. Alao's testimony to the VA for reconsideration.

II. BACKGROUND

The Court bases its decision on the following facts taken from the record in both cases and from the VA's uncontested Statement of material facts. See 12-CV-1652 Dkt. Nos. 6-4 ("VA's SMF"); 14-2 ("Plaintiff's SJ Brief") at 1 ("Both Plaintiff and Defendant agree there are no material issues of fact...."); see also L.R. 7.1(a)(3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."). Plaintiff is a military veteran in his late twenties who receives VA benefits and medical care at the VA's Medical Center in Syracuse, New York ("SVAMC"), for service-connected Post-traumatic Stress Disorder, anxiety, depression, and an injured back. VA's SMF ¶¶ 1-2. Plaintiff and Gina Shannon ("Shannon") are the parents of R.M., a child born in August 2011. Id . ¶ 3. In February 2012, Plaintiff petitioned the Family Court for custody of R.M. Id . ¶ 4. Shannon cross-petitioned for custody, asserting that Plaintiff's psychiatric diagnoses, medications, and other factors made Plaintiff incapable of caring for R.M. properly. Id . ¶ 5.

On or about June 29, 2012, Plaintiff's attorney issued a subpoena for Dr. Adekola Alao, Plaintiff's treating psychiatrist at the SVAMC, to appear and testify in the custody action. Id . ¶¶ 6, 9. Asserting that testimony of a VA employee can be authorized only in certain limited circumstances and is at the discretion of the VA's Regional Counsel and not subject to subpoena or court order, the VA's Regional Counsel declined to comply with Plaintiff's subpoena and invited Plaintiff to request Dr. Alao's testimony under pertinent regulations. Id . ¶ 11. Plaintiff's attorney promptly made such a request, which the VA's Regional Counsel denied because it did not find that the VA had the requisite direct and substantial interest in Plaintiff's custody proceeding to permit a VA employee to testify therein. Id . ¶¶ 12, 16.

On July 20, 2012, Family Court Judge Michael L. Hanuszczack ordered the VA to show cause why an order compelling Dr. Alao to appear and testify should not issue. Id . ¶ 17. The VA's Regional Counsel reconsidered Plaintiff's request for Dr. Alao's testimony and again declined to produce him. Id . ¶¶ 18-19. On August 31, 2012, Judge Hanuszczack granted Plaintiff's motion to compel Dr. Alao to testify and ordered Plaintiff's attorney to submit a subpoena to that effect. 12-CV-1359 Dkt. No. 1-1 at 6. The VA thereupon removed this case pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446 on September 5, 2012, seeking vacatur of the order to compel. 12-CV-1359 Dkt. No. 1; Mot. to Vacate. Plaintiff replied with a renewed Motion to compel. Mot. to Compel.

Plaintiff also commenced an action asserting various claims against the VA and Joseph Moreno ("Moreno") and Georgette Gonzales-Snyder ("Gonzales-Snyder") of the VA's Regional Counsel in their official and individual capacities for refusing to produce Dr. Alao for testimony. 12-CV-1652 Dkt. No. 1. On a stipulation of the parties, the Court dismissed Moreno and Gonzales-Snyder as defendants and dismissed all but one of Plaintiff's claims against the VA. Id . Dkt. No. 11.[1] Plaintiff's remaining claim invokes 5 U.S.C. § 702, part of the Administrative Procedure Act ("APA"), to seek review by the Court of the VA's decision not to grant Plaintiff's request that Dr. Alao be produced to testify. Id . Dkt. No. 1 at 4-5. Both parties moved for summary judgment. VA's MSJ; Pl.'s MSJ. To resolve the question of whether Dr. Alao must testify in Plaintiff's custody proceeding, the Court consolidated Plaintiff's action against the VA with his removed custody proceeding on November 26, 2012, and now addresses each issue in turn. 12-CV-1359 Dkt. No. 21.[2]

III. FAMILY COURT SUBPOENA

A. Effect of Removal

"Removed proceedings arrive in federal court in the procedural posture they had in state court." D.H. Blair & Co., Inc. v. Gottdiener , 462 F.3d 95, 108 (2d Cir. 2006). "Upon removal, the orders entered by the state court are treated as though they have been entered by the federal court." Nasso v. Seagal , 263 F.Supp.2d 596, 608 (E.D.N.Y. 2002); accord 4 B's Realty 1530 CR39, LLC v. Toscano, No. 08-CV-2694 , 2009 WL 702011, at *2 (E.D.N.Y. Mar. 12, 2009); see Breedlove v. Cabou , 296 F.Supp.2d 253, 263-65 (N.D.N.Y. 2003) (evaluating approaches in the Third, Fourth, Fifth, Ninth, and Eleventh Circuits and deeming state-court order adopted immediately upon removal). Accordingly, the Court will treat the VA's Motion to Vacate as a motion under Federal Rule of Procedure 60(b) and Local Rule 7.1(g) for relief from "its" Order to compel. See Breedlove , 296 F.Supp.2d at 268 ("[O]nce a case is removed to federal court, federal not state rules of procedure govern." (citing Nasso , 263 F.Supp.2d at 608 (collecting cases))).

B. Jurisdiction

The parties agree that the Family Court lacked jurisdiction to issue the Order to compel because the federal government had not waived its sovereign immunity. Compare 12-CV-1359 Dkt. No. 13-6 ("Plaintiff's Brief") at 8 ("There are numerous U.S. Supreme Court cases and Federal precedent to preclude Onondaga County Family Court Judge Hanuszczak from compelling the Federal employee, Dr. Alao, to testify in State court." (citing United States ex rel. Touhy v. Ragen , 340 U.S. 462 (1951))), with id. Dkt. No. 8-2 ("VA's Brief") at 6-7 (discussing authorities to show that the Family Court lacked jurisdiction to issue the Order to compel). Plaintiff contends, however, that "[j]ust as there is no question that [a] State judge has insufficient authority to compel the attendance of a Federal witness in State court, there is no question that a Federal judge has the authority to compel that same Federal witness to testify in a State court proceeding." Pl.'s Br. at 8.

A federal court's jurisdiction upon removal is no greater than that of the state court whence came the action. Arizona v. Manypenny , 451 U.S. 232, 243 n.17 (1981) ("In the area of general civil removals, it is well settled that if the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal, even though the federal court would have had jurisdiction if the suit had originated there."); accord PT United Can Co. v. Crown Cork & Seal Co. , 138 F.3d 65, 72-73 (2d Cir. 1998); see also Smith v. Croner , 159 F.3d 875, 879 (4th Cir. 1998) ("[A] federal court's jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction...."). Thus, the Court does not have jurisdiction to sustain the Order to compel or issue a new one, because the Family Court lacked jurisdiction to do so. Moreover, the Court does not have jurisdiction over child-custody proceedings even as an original matter. See, e.g., Hamilton v. Hamilton-Grinols , 363 F.Appx. 767, 769 (2d Cir. 2010) ("Under [the domesticrelations] exception, federal courts are divested of jurisdiction in cases involving the issuance of a divorce, ...


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.