United States District Court, N.D. New York
PATRICIA A. ARCHER-VAIL, as the administratrix of the estate of John F. Vail, deceased, and individually, Plaintiff,
LHV PRECAST INC. et al., Defendants.
THE PLAINTIFF MARC J. BERN & PARTNERS LLP
THE DEFENDANTS LHV PRECAST INC., WIESER CONCRETE PRODUCTS,
INC. AND WIESER CONCRETE ROXANA, LLC SALMON RICCHEZZA SINGER
& TURCHI, LLP, SPILLMAN COMPANY CATANIA, MAHON, MILLIGRAM
& RIDER, PLLC
COUNSEL ELLIOT M. SCHAKTMAN, ESQ., WILLIAM J. GREAGAN, ESQ.,
JAMES F. FAUCHER, II, ESQ., JEFFREY A. SEGAL, ESQ., MICHAEL
E. CATANIA, ESQ.
L. Sharpe Senior District Judge
around August 2017, plaintiff Patricia A. Archer-Vail, as the
administratrix of the estate of John F. Vail, deceased, and
individually, commenced an action in New York Supreme Court
in Ulster County against LHV Precast Inc. (LHV), Wieser
Concrete Products, Inc. (Wieser Products), Wieser Concrete
Roxana, LLC (Wieser Roxana), and Spillman
Company. (Dkt. No. 2 at 3.) On October 5, 2017,
Wieser Products and Wieser Roxana filed a notice of removal
in this court. (Dkt. No. 1.) Subsequently, LHV filed a
motion to dismiss, (Dkt. No. 8), and Wieser Products and
Wieser Roxana filed one as well, (Dkt. No. 9).
here is improper. 28 U.S.C. § 1441(b)(2) states that
“[a] civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of [Title 28]
may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in
which such action is brought.” Here, defendant LHV is a
citizen of New York, (Dkt. No. 1 ¶ 13(e); 28 U.S.C.
§ 1332(c)(1)), and was served, (Dkt. No. 1 ¶ 9).
Because LHV is a citizen of the State in which this action is
brought-i.e., New York-and the instant action is
removable solely on the basis of diversity jurisdiction,
(Dkt. No. 1 ¶¶ 12-14), removal is improper. See
Confer v. Bristol-Myers Squibb Co., 61 F.Supp.3d 305,
305-06 (S.D.N.Y. 2014) (applying 28 U.S.C. § 1441(b)(2)
and positing rationale of statute); Kucher v. Exceeding
Expectations, Inc., No. 1:12-CV-00169, 2012 WL 3308892,
at *2 (N.D.N.Y. Aug. 13, 2012).
U.S.C. § 1441(b)(2) is a rule of procedure, not a
jurisdictional requirement. See Shapiro v. Logistec USA,
Inc., 412 F.3d 307, 313 (2d Cir. 2005). Nonetheless, a
district court may sua sponte order remand for a
procedural defect within thirty days of the filing of a
notice of removal. See Mitskovski v. Buffalo & Fort
Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir.
2006); New York v. Stoddard, No. 1:06-CV-1320, 2006
WL 3423863, at *1 n.3 (N.D.N.Y. Nov. 28, 2006).
light of the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the
independence of state governments, federal courts construe
the removal statute narrowly, resolving any doubts against
removability.” Confer, 61 F.Supp.3d at 306
(internal quotation marks and citation omitted). This case
runs afoul of 28 U.S.C. § 1441(b)(2) and is thus
remanded. See BCAT REO LLC v. Gordon, No.
15-CV-5093, 2015 WL 5664421, at *1 (E.D.N.Y. Sept. 24, 2015).
it is hereby
that this matter be REMANDED to New York
Supreme Court in Ulster County; and it is further
that LHV's motion to dismiss (Dkt. No. 8) is
DENIED AS MOOT; and it is further
that Wieser Products' and Wieser Roxana's motion to
dismiss (Dkt. No. 9) is DENIED AS MOOT; and
it is further
that the Clerk provide a certified copy of this Summary Order
to New York Supreme Court in Ulster County; and it is further
that the Clerk provide copies of this Summary ...