United States District Court, E.D. New York
JOHN G. MARKS, Plaintiff,
ELIZABETH BLOUNT-LEE, Defendant.
Francesco P. Tini Tini Law PC Attorney for Plaintiff
J. Freismuth United States Attorney's Office Attorney for
MEMORANDUM & ORDER
M. Azrack United States District Judge
the Court is a motion by plaintiff John Marks to remand this
case to state court. Also before the Court are the United
States' motions to vacate the state court default
judgment against defendant Elizabeth Blount-Lee and to
dismiss plaintiff's complaint for lack of subject matter
jurisdiction. For the following reasons, the Court denies
plaintiff's motion to remand and grants the
government's motions to vacate the judgment and to
dismiss the complaint.
November 20, 2015, defendant Elizabeth Blount-Lee allegedly
struck plaintiff's parked car while she was operating a
United States Postal Service (“USPS”) vehicle.
(Compl., Freismuth Decl. Ex. B, ECF No. 24.) Plaintiff does
not dispute that Blount-Lee was acting within the scope of
her employment as a USPS employee at the time of the
February 15, 2016, plaintiff submitted a claim to the USPS
for $2, 164.81. (Claim for Damage, Injury, or Death,
Freismuth Decl. Ex. A, ECF No. 24.) This claim reflected the
cost of the rental car plaintiff had allegedly obtained while
his car was being repaired as a result of the accident.
April 7, 2016, before plaintiff and the USPS were able to
resolve his claim, plaintiff commenced this action in Nassau
County District Court against Blount-Lee. Marks v.
Blount-Lee, Index No. 999/16. Plaintiff sought
reimbursement for his rental car along with interest and
costs. Id. In June 2016, the Nassau County District
Court entered a default judgment against Blount-Lee, awarding
plaintiff $2, 232.91 in damages, interest, and costs.
(Judgment, Freismuth Decl. Ex. C, ECF No. 24.)
7, 2016, the United States removed this action to federal
court pursuant to, inter alia, 28 U.S.C. §
2679. In August, the government requested a
pre-motion conference concerning a proposed motion to vacate
the state default judgment against Blount-Lee and to dismiss
the complaint for lack of subject matter jurisdiction. (ECF
No. 4.) On August 17, 2016, plaintiff opposed the request for
a pre-motion conference, filing a letter styled as a
“Reply to Letter Motion and Cross-Letter Motion.”
(ECF No. 6.) Plaintiff argued, inter alia, that
removal of the action to federal court was improper, and
should be “vacated, ” because the United
States' notice of removal was untimely. (Id.)
The parties submitted additional letters on these issues a
month later. (ECF Nos. 7, 8.) On December 1, 2016, after an
adjournment requested by the parties, this Court held a
pre-motion conference and granted the parties leave to file
their proposed motions. (ECF No. 17.)
pending before the Court are: (1) plaintiff's motion to
remand this case to state court; (2) the government's
motion to vacate the default judgment against Blount-Lee; and
(3) the government's motion to dismiss the complaint for
lack of subject matter jurisdiction. After these motions were
briefed, plaintiff, an attorney who initially appeared
pro se, retained counsel.
Motion to Remand
argues that this case should be remanded to state court
because the United States' notice of removal was
untimely. Plaintiff's motion to remand, however,
is itself untimely. Accordingly, the Court denies the motion.
motion to remand on any ground other than lack of subject
matter jurisdiction must be made within thirty days of the
filing of the notice of removal. 28 U.S.C. § 1447(c). If
a party fails to move to remand within thirty days, the party
waives all non-jurisdictional arguments to removal, including
those based on timeliness grounds. See 14C ...