United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge.
se Plaintiff Richard Caires brought this action against
Defendant JPMorgan Chase Bank, N.A. ("Chase") for
breach of contract, fraud, and other causes of action related
to a note and mortgage executed on a property in Greenwich,
Connecticut. On April 11, 2016, Plaintiff removed this action
from the Connecticut Superior Court. (Notice of Removal, ECF
Defendant moved to remand the case to Connecticut Superior
Court and award reasonable attorneys' fees and costs
incurred by Chase in connection with the motion. (ECF No.
12.) Before this Court is Magistrate Judge Ronald L.
Ellis's November 4, 2016 Report and Recommendation
("Report, " (ECF No. 26)), recommending that the
case be remanded to Connecticut Superior Court but denying
Defendant's request for attorneys' fees and
costs.(Report, at 9.) This Court adopts those
Court "may accept, reject, or modify, in whole or in
part, the findings or recommendations" set forth within
a magistrate judge's report. 28 U.S.C. § 636(b)(1).
The Court must review de novo the portions of a
magistrate judge's report to which a party properly
objects. Id. Portions of a magistrate judge's
report to which no or merely perfunctory objections have been
made are reviewed for clear error. See Edwards v.
Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. 2006).
Clear error is present only when "upon review of the
entire record, [the court is] left with the definite and firm
conviction that a mistake has been committed." Brown
v. Cunningham, No. 14-CV-3515, 2015 WL 3536615, at *4
(S.D.N.Y. June 4, 2015) (internal citations omitted).
se submissions are read liberally and interpreted to
"raise the strongest arguments that they suggest."
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
"Nonetheless, even a pro se party's
objections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior
argument." Pinkney v. Progressive Home Health
Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y.
July 21, 2008) (quotation omitted), aff'd, 367
F.App'x 210 (2d Cir. 2010). Thus, to the extent that a
pro se party "makes only conclusory or general
objections, or simply reiterates the original arguments, the
Court will review the Report strictly for clear error."
Judge Ellis advised the parties that failure to file timely
objections to the Report would constitute a waiver of those
objections on appeal. (Report, at 9-10.) On November 10,
2016, Plaintiff requested that the deadline for filing
objections to the Report be extended 30 days to December 24,
2016. (ECF No. 28.) This Court granted Plaintiffs request.
(ECF No. 29.) On December 27, 2016, Plaintiff filed
objections to the Report. (PL's Obj. to the R. & R.,
(ECF No. 31).) However, Plaintiffs submission does not
cite or object to any particular findings in the Report.
Rather, Plaintiffs submission merely argues in general terms
why remand is inappropriate in this case. Accordingly, this
Court will review the Report for clear error.
MOTION TO REMAND
Report properly rejected Chase's argument that Plaintiffs
Notice of Removal is procedurally deficient under the liberal
pleading standards appropriate for pro se
submissions. (Report, at 4.) Nonetheless, the Report properly
determined that Plaintiffs request for removal fails on other
grounds. First, the Report correctly concluded that venue is
not proper in this District. (Id., at 4-5.) Because
Chase's foreclosure counterclaim was remanded to
Connecticut state court, and because the property at issue is
also located in that state, Connecticut federal court would
be the proper venue for removal. However, the Connecticut
state law foreclosure counterclaim, the only viable claim
remaining in this case, cannot serve as the basis for
removal, nor could that action have been originally filed in
this Court. (Id., at 5.) Additionally, Plaintiffs
Notice of Removal also disregards the July 24, 2012 dismissal
and the September 27, 2012 remand of the foreclosure
proceeding by the U.S. District Court for the District of
Connecticut. (Id., at 6.)
the Report correctly found that Plaintiffs notice of removal
is untimely, and that no exceptions to the deadline for
removal justify the more than one year delay. (Id.,
at 6-8.) As the Report notes, Plaintiff conceded that his
notice of removal was filed late, but he argued for a
"bad faith" exception to the one-year deadline in
28 U.S.C. § 1446(c). (Id., at 6-7.) However,
the Report correctly concluded that the exception does not
apply in this case because there has been no evidence that
Chase acted to prevent removal. (Id., at 7.)
these reasons, the motion to remand here should also be
Judge Ellis's Report and Recommendation is adopted. The
Defendant's motion to remand this case to Connecticut
state court is GRANTED. This case is REMANDED to Connecticut
Superior Court. The ...