United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge
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. The granting of this status triggers the
screening provisions in 28 U.S.C. § 1915 (e)(2)(B).
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.
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.
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.
November 17, 2016, Defendants filed the three motions
identified above, seeking sanctions, dismissal, and remand.
(Docket Nos. 3, 4, 5.)
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.
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.
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).
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).
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 ...