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Buczek v. Giglio

United States District Court, W.D. New York

May 14, 2017

DAVID M. GIGLIO, ET AL., Defendants.


          WILLIAM M. SKRETNY United States District Judge


         Presently before this Court is a Notice of Removal and Motion for Leave to Proceed In Forma Pauperis filed by pro se Plaintiffs Daniel Richard Buczek and Deborah Ann Buczek. (Docket Nos. 1 and 2.) Because the Buczeks meet the statutory requirements of 28 U.S.C. § 1915(a), their request to proceed in forma pauperis will be granted.[1] The granting of this status triggers the screening provisions in 28 U.S.C. § 1915 (e)(2)(B).

         Also before this Court are three motions filed by Defendants: a Motion for Sanctions; a Motion to Dismiss; and a Motion to Remand. (Docket Nos. 3, 4, 5.) Because this Court finds no basis for the Buczeks' removal of this action, Defendants' Motion to Remand will be granted, and this case will be returned to the New York State Supreme Court, County of Erie, the forum from which it was improperly removed. Defendants remaining two motions will be denied.


         On September 29, 2016, Defendant David M. Giglio, an attorney, filed a civil action in state court against the Buczeks on behalf of Defendants Rashawn Bell, Alexis McCullen, and Bernice Bell. (Affirmation of David M. Giglio (“Giglio Affirm.”), Docket No. 5, ¶ 3.) The state suit asserts claims and seeks damages under New York law against the Buczeks for injuries suffered as a result of exposure to lead paint while Defendants Rashawn Bell and Alexis McCullen, while children, lived at or visited property owned by the Buczeks. (Giglio Affirm., ¶ 5.) No federal claims are asserted in the state action.

         On October 24, 2016, the Buczeks removed the state action to this Court by filing a Notice of Removal. (Docket No. 1.) The Notice of Removal is premised on the existence of federal-question jurisdiction under 28 U.S.C. § 1331. Specifically, the Buczeks allege that this case implicates a claim under the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq.

         On November 17, 2016, Defendants filed the three motions identified above, seeking sanctions, dismissal, and remand. (Docket Nos. 3, 4, 5.)


         Cognizant of the distinct disadvantage that pro se litigants face, federal courts routinely read their submissions liberally and interpret them to raise the strongest arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since the Buczeks are proceeding pro se, this Court has considered their submissions and arguments accordingly.

         Under 28 U.S.C. § 1915 (e)(2)(B), a court must dismiss a case in which in forma pauperis status has been granted if, at any time, the court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. If the court plainly lacks jurisdiction to consider the complaint, dismissal of the complaint as “frivolous” under 28 U.S.C. § 1915 (e)(2) is proper. See McGann v. Comm'r, Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir. 1996). Here, this Court lacks jurisdiction to consider the complaint because removal jurisdiction is lacking.

         A civil action brought in state court may be removed by a defendant to a federal district court of original jurisdiction. 28 U.S.C. § 1441 (a). District courts have original jurisdiction over all civil actions arising under the Constitution, treaties, or laws of the United States, and over all civil actions between citizens of different states, if the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332(a)(1).

         To effectuate removal, a notice of removal must be filed “within 30 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 . . . .” 28 U.S.C. § 1446 (b). This 30-day filing period, “while not jurisdictional, is mandatory and failure to comply with it will defeat a defendant's removal petition.” Nicola Prods. Corp. v. Showart Kitchens, Inc., 682 F.Supp. 171, 172 (E.D.N.Y. 1988). And “absent waiver or estoppel, the thirty day period cannot be extended by court order, stipulation of the parties, or otherwise.” Id. at 173. In addition, when, as here, a civil action is removed under 28 U.S.C. § 1441 (a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446 (2)(a). Remand of a removed action is required “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447 (c).

         Out of respect for states' rights and in keeping with the limited jurisdiction of federal courts, removal jurisdiction is “strictly construed, ” with all doubts resolved against removal. Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007). The removing party bears the burden of establishing proper ...

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