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In re Proceeding for Support under the Family Court Act Commissioner of Social Services

United States District Court, E.D. New York

November 9, 2017

In the Matter of a Proceeding for Support under the Family Court Act COMMISSIONER OF SOCIAL SERVICES, Petitioner/Assignee on behalf of TAMMY BOERTLEIN, ASSIGNOR, Petitioner,
v.
ROGER W. CLARKE, JR., Respondent.

          For Petitioner: No appearance.

          For Respondent: Roger W. Clarke, pro se

          MEMORANDUM & ORDER

          JOANNA SEYBERT. U.S.D.J.

         In or about October 31, 2016, the Commissioner of Social Services, on behalf of Tammy Boertlein, Mother (“Petitioner”), commenced this action against respondent Roger W. Clarke Jr., Father (“Respondent”) in the Family Court of the State of New York, County of Suffolk (“State Court”).[1] (See Pet. for Support, Ex. B, Docket Entry 1-2.) On October 16, 2017, Respondent, acting pro se, filed a Notice of Removal removing the action to this Court pursuant to, inter alia, 28 U.S.C. §§ 1443 and 1446 on the basis that this Court has original jurisdiction under 28 U.S.C. § 1331 because there are “questions arising under the Constitution, Laws, and Treaties of the United States, including but not limited to the Bill of Rights and the Eleventh Amendment, the original Thirteenth Amendment, and Fourteenth Amendment to the U.S. Constitution, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights, with Reservations” involved. (See Pet. for Removal, Docket Entry 1, at 1.) Respondent paid the Court's filing fee. For the reasons set forth below, the action is REMANDED to the State Court pursuant to 28 U.S.C. § 1447(c).

         DISCUSSION

         I. The Removal Statute

         Pursuant to 28 U.S.C. § 1441(a), “ . . . any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added).) In addition, 28 U.S.C. § 1446(a) sets forth the procedure for removal to be followed:

A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States . . . a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and other papers served upon such defendant or defendants in such action.

28 U.S.C. § 1446(a) (emphasis added). Subsection (b) makes clear that

[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or process or otherwise, of a copy of the initial pleading setting forth the claim for relief . . . or within 30 days after the service of the summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever is shorter.

28 U.S.C. § 1446(b). “[S]tatutory procedures for removal are to be strictly construed, . . . because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns.” Frontier Park Co., LLC v. Contreras, 35 F.Supp.3d 264, 267 (E.D.N.Y. 2014) (internal quotation marks and citations omitted); accord In re Facebook, Inc., IPO Sec. & Derivative Litig., 922 F.Supp.2d 475, 480 (S.D.N.Y. 2013). “[T]he burden is on the removing party to prove that it has met the requirements for removal.” Ulysse v. AAR Aircraft Component Servs., 841 F.Supp.2d 659, 666 (E.D.N.Y. 2012) (internal quotation marks and citation omitted).

         Here, Respondent seeks to remove this child support enforcement action to this Court almost one (1) year after it was filed in the State Court.[2] Thus, regardless of whether Respondent's Notice of Removal invokes this Court's federal question subject matter jurisdiction, [3] there is no basis in law for Respondent's attempt to remove this action to federal court after the statutory thirty-day time period has expired. Edelman v. Page, 535 F.Supp.2d 290, 292 (D. Conn. 2008) (finding that the “statutory time limit is mandatory. . . [and] absent a finding of waiver or estoppel, federal courts rigorously enforce the statute's thirty-day filing requirement.”) (internal quotation marks and citation omitted; alterations in original).

         Moreover, although Respondent's Notice of Removal, including exhibits, is comprised of eighty-three pages, he has failed to attach a copy of the “pleadings[] and orders” served upon him in the State Court case as is required by the removal statute. Accordingly, this action is REMANDED to the State Court pursuant to 42 U.S.C. § 1447(c). See, e.g. Allfour v. Bono, No. 11-CV-1619, 2011 WL 2470742, at * 1 (E.D.N.Y May 5, 2011), report and recommendation adopted by 2011 WL 2470734 (E.D.N.Y. June 22, 2011) (holding that in this circuit, a procedural defect, by itself, would authorize a sua sponte remand within thirty [30] days after the filing of the notice of removal); Cassara v. Ralston, 832 F.Supp. 752, 753-54 (S.D.N.Y. 1993) (holding that 28 U.S.C. § 1447(c) authorizes a district court to sua sponte remand actions to state court for defects in removal procedure within thirty [30] days after the filing of the notice of removal); see also Burr v. Toyota Motor Credit Co., 478 F.Supp.2d 432, 436 (S.D.N.Y. 2006) (“[I]n 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.”) (internal quotation marks and citation omitted).

         Accordingly, the Clerk of the Court shall: (1) MAIL a certified copy of this Order to the clerk of the Family Court of the State of New York, County of Suffolk, pursuant to 42 U.S.C. § 1447(c); (2) CLOSE this case; ...


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