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Marks v. Blount-Lee

United States District Court, E.D. New York

July 20, 2017

JOHN G. MARKS, Plaintiff,
v.
ELIZABETH BLOUNT-LEE, Defendant.

          Francesco P. Tini Tini Law PC Attorney for Plaintiff

          Megan J. Freismuth United States Attorney's Office Attorney for Defendant

          MEMORANDUM & ORDER

          Joan M. Azrack United States District Judge

         Before 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.

         I. BACKGROUND

         On 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 incident.[1]

         On 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. (Id.)

         On 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.)

         On July 7, 2016, the United States removed this action to federal court pursuant to, inter alia, 28 U.S.C. § 2679.[2] 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.)

         Currently 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.

         II. DISCUSSION

         A. Motion to Remand

         Plaintiff argues that this case should be remanded to state court because the United States' notice of removal was untimely.[3] Plaintiff's motion to remand, however, is itself untimely. Accordingly, the Court denies the motion.

         A 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 ...


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