United States District Court, E.D. New York
US BANK TRUST NATIONAL ASSOCIATION, not in its Individual Capacity but Solely as Trustee for SRMOF IIREO2013 1 Trust, Plaintiff,
CYNTHIA TAFE WILSON, MIKE LEONE, VICTORIA "Doe one thru two", "John" "Doe one thru two", "Jane", Defendants.
SUMMARY REMAND ORDER
F. Bianco, United States District Judge.
November 16, 2017, pro se defendant Cynthia Wilson
("Wilson") filed a Notice of Removal
("Notice") seeking to remove an hold-over tenant
eviction proceeding following a mortgage foreclosure
action from the 1st District Court of
New York - Nassau County, and assigned Index No.
LT-006503-16/NA, to this Court. (Notice at 1 .) (Id.)
Plaintiff s sparse submission seeks a ninety-day stay on
"further proceedings." (Id.) Wilson
alleges that this Court has removal jurisdiction under 28
U.S.C. § 1332, 1441, 1446, and 1453 et al.
Wilson paid the Court's filing fee at the time she filed
the Notice. For the reasons that follow, the matter is hereby
summarily remanded to state court.
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
A defendant or defendants desiring to removal 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 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
28 U.S.C. § 1446(a) (emphasis added). As to the timing
of removal, 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). In addition, subsection (b)(2)(A)
provides that "[w]hen a civil action is removed solely
under section 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(b)(2)(A).
procedures for removal are to be strictly construed, "
Syngenta Crop. Prot., Inc. v. Henson, 537 U.S. 28,
32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002), and any doubts
must be resolved against "removability" "out
of respect for the limited jurisdiction of the federal courts
and the rights of the states .. .." In re Methyl
Tertiary Butyl Ether ("MTBE") Products Liab.
Litig, 488 F.3d 112, 124 (2d Cir. 2007) (quotations and
citation omitted). "[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)
(quotations and citation omitted).
as is readily apparent, Wilson has not demonstrated that her
Notice of Removal was timely filed within the thirty (30)-day
period prescribed by 28 U.S.C. § 1446(b)(1). Wilson does
not provide the date this action was filed in state court,
nor does she indicate when she received either a copy of the
initial pleading or a summons. However, according to the
information maintained by the New York State Unified Court
System, the hold-over proceeding was filed on December 16,
2016 and was disposed on March 15, 2017. Given that Wilson
seeks to remove the action well-beyond the thirty-day period,
her Notice of Removal is untimely. Thus, regardless of
whether Wilson's Notice of Removal invokes this
Court's federal question jurisdiction, the fact of the
matter remains that there is no basis in law for Wilson's
attempt to remove this action to federal court well after the
statutory thirty-day time period has long expired.
Wilson has not attached a copy of "all process,
pleadings, and other papers" served upon her in the
state court case as is required by 28 U.S.C. § 1446(a).
Further, Wilson does not indicate whether the other named
defendants "join in or consents" to the removal
of this action and the Notice of Removal is signed only by
Wilson. Accordingly, this action is sua sponte
remanded to the state court pursuant to 42 U.S.C. §
1447(c). See Mitskovski v. Buffalo & FortEriePub.
Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006)
(recognizing that a district court may sua sponte
remand a case for a procedural defect within thirty (30) days
of the filing of the Notice of Removal); accord Hamilton
v. Aetna Life & Cas. Co., 5 F.3d 642, 644 (2d Cir.
1993); Allstate Ins. Co. v. Zhigun, No. 03 Civ.
10302(SHS), 2004 WL 187147 (S.D.N.Y. Jan. 30, 2004)
(remanding case to state court for failure to comply with the
statutory procedural requirements); 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).
Clerk of the Court is directed to: (1) mail a copy of this
order to all parties; (2) mail a certified copy of this Order
to the clerk of the First District Court of the State of New
York, Nassau County, pursuant to 42 U.S.C. § 1447(c);
and (3) close this case.
Wilson paid the Court's filing fee, should she seek leave
to appeal in forma pauperis, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order would not be taken in good faith and therefore
in forma pauperis status is denied for the purpose
of any ...