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Russell v. Lamothermic Precision Casting Corp.

United States District Court, S.D. New York

January 6, 2020

TRAVIS RUSSELL, individually and on behalf of all other persons similarly situated who were employed by LAMOTHERMIC PRECISION CASTING CORP., A/K/A LAMOTHERMIC CORP., AND ANY RELATED ENTITIES Plaintiff,



         On March 14, 2019, Defendants Lamothermic Precision Casting Corp., a/k/a Lamothermic Corp. ("Lamothermic"), Michael Steele, and Dana Ciullo, a/k/a Donna Ciullo (collectively, "Defendants"), removed this action from the New York State Supreme Court, Dutchess County, pursuant to 28 U.S.C. § 1446. (ECFNo. 1.) Plaintiff Travis Russell ("Plaintiff) now moves to remand this case back to state court. (ECF No. 13.) Plaintiff maintains that the Notice of Removal filed by Defendants was defective, and that Defendants were not entitled to remove the action because they were in default in state court. Defendants oppose the motion. For the following reasons, Plaintiffs motion is DENIED.


         Plaintiff represents that he commenced this action on December 10, 2018, by filing a Summons with Notice in the Supreme Court of the State of New York, Dutchess County, under Index No. 53999/18.[2] (Decl. of Brooke D. Youngwirth, Esq. (“Youngwirth Decl. 1”) (ECF No. 13) ¶ 4.) The Summons with Notice states, “Plaintiff brings this class action lawsuit pursuant to Article 9 of the New York Civil Practice Law and Rules, on behalf of himself and a putative class of individuals for violations of New York Labor Law, the New York Wage Theft Prevention Act, and 12 NYCRR 142-2.2 for damages in excess of $100, 000.00, plus costs and attorneys' fees, along with punitive and statutory damages.” (Id. Ex. A.) Defendants were personally served with the Summons with Notice on December 18, 2018, and December 19, 2018, respectively.[3] (Id. Ex. B.)

         On or about January 22, 2019, Defendants sent a Demand for a Complaint via first class mail to Plaintiff. (See Pl.'s Mem. of Law in Support of Remand (“Pl. Mem.”) (ECF No. 14) at 1-2; Youngwirth Decl. 1 Ex. D.) Plaintiff advised Defendants via email that their responses to the Summons with Notice were due on January 7, 2019, and January 8, 2019, respectively, and that it was Plaintiff's position that Defendants were in default. (Youngwirth Decl. 1 Ex. D.) Plaintiff's counsel further represented that she had drafted a motion for default judgment. (Id.) No such motion has ever been filed. (See Id. Ex. C.)

         Ultimately, on February 13, 2019, Plaintiff sent a Verified Complaint via email and regular mail to Defendants' counsel. (Id. Exs. D & E.) In addition to Plaintiff's state claims, the Verified Complaint alleged, for the first time, violations of the federal Fair Labor Standards Act (“FLSA”). (Id. Ex. E ¶ 2.) Defendants sought to extend their time to respond to the Verified Complaint until March 29, 2019, and Plaintiff agreed to such an extension, though no formal stipulation was executed. (Id. Ex. D.) On March 14, 2019, Defendants filed a Notice of Removal in this Court. (ECF No. 1.)

         On April 11, 2019, Plaintiff submitted a letter to the Court seeking permission to file either motion for default judgment or a motion to remand. (ECF No. 7.) On April 29, 2019, Defendants filed their Answer. (ECF No. 12.) Pursuant to a briefing schedule set by the Court at a conference on May 2, 2019, Plaintiff was directed to serve a motion to remand by May 10, 2019. The motion was fully submitted as of June 24, 2019. (ECF Nos. 13, 14, 15, & 16.)


         A “civil action” initially filed in state court may be removed by the defendant to the federal district court embracing the place where the state court action is pending, so long as the district court has original subject matter jurisdiction over the plaintiff's claim. See28 U.S.C. § 1441; Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 271 (2d Cir. 1994). However, the removal jurisdiction of the federal courts is limited and should be “scrupulously confine[d].” Shamrock Oil & Gas Corporation v. Sheets, et al., 313 U.S. 100, 109 (1941) (quotations omitted); Noel v. J.P. Morgan Chase Bank N.A., 918 F.Supp.2d 123, 125 (E.D.N.Y. 2013). “Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns.” James v. Gardner, No. 04-cv-1380, 2004 WL 2624004, at *1 (E.D.N.Y. Nov.10, 2004) (citing In re NASDAQ Market Makers Antitrust Litig., 929 F.Supp. 174, 178 (S.D.N.Y. 1996)).

         Removal to a federal district court generally must occur “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). An exception exists to the 30-day removal deadline, however, when “the initial pleading is not removable.” Id. § 1446(b)(3). In circumstances where the initial pleading is not removable,

a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Id. (emphasis added). Federal courts stringently enforce the 30-day removal timeline absent a showing of waiver or estoppel. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (recognizing that the “statutory procedures for removal are to be strictly construed”).

         In cases of removal, the removing party bears the burden of establishing that all jurisdictional requirements have been met. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); see also United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). Where subject matter jurisdiction is lacking, “the Court is obligated to decline removal and remand [the] case.” Newman & Cahn, LLP. v. Sharp, 388 F.Supp.2d 115, 117 (E.D.N.Y. 2005); see also 28 U.S.C. § 1447(c); United Food & Commercial Workers Union, Local 919, 30 F.3d at 301.


         Plaintiff does not contest that, if a Notice of Removal were properly filed, this Court would have federal question jurisdiction over Plaintiff's FLSA claims and is authorized to exercise supplemental jurisdiction over his state law claims, which arise from the same set of facts.[4] See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”); 28 U.S.C. § 1367(a) (in general, in any civil action of which a district court has original jurisdiction, “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy . . .”); see also Shahriar v. Smith & Wollensky Restaurant Group, 659 F.3d 234, 246 (2d Cir. 2011) (concluding that New York Labor Law and FLSA claims form part of the same case or controversy). Plaintiff contends, however, that the Notice of Removal was deficient for several reasons. Plaintiff's primary challenge to the Notice of Removal is based on Defendants' alleged default in responding to the Summons with Notice, and, subsequently, the Verified Complaint. Plaintiff avers that since Defendants did not respond to the Summons with Notice and Verified Complaint within the timeframe specified by the New York Civil Practice Law and Rules, they lacked the ability to remove the action to federal court.

         In support of his proposition that a party may not remove an action if it is in default in the underlying state court action, Plaintiff cites to two district court decisions. In Licciardi v. City of Rochester, No. 10-CV-6165-CJS, 2010 WL 4116732 (W.D.N.Y. Oct. 19, 2010), the court remanded a case to state court because the defendants did not timely file their notice of removal. See 28 U.S.C. § 1446(b). The court found that the plaintiff's service of a summons with notice, which stated that plaintiff's claims were based on “‘denial of New York and federal civil and constitutional rights, including, without intending to limit Equal Protection of the Law, Due Process of Law, Free Speech and Freedom of Association . . ., '” was sufficient to give the defendants notice that some of the plaintiff's claims rested on federal law, “thus triggering the removal time clock under [28 U.S.C.] § 1446.” Licciardi, 2010 WL 4116732, at *3 (quoting pleadings). The court further noted, in determining that the plaintiff was entitled to an award of attorneys' fees, that it was undisputed that the defendants were in default at the time they filed their notice of removal. Id. at *4-*5. However, the court did not suggest that the defendants' default at the state level divested the court of subject matter jurisdiction.

         In Higgins v. Yellow Cab Corp., 68 F.Supp. 453 (N.D. Ill. 1946), the second case cited by Plaintiff, the moving defendant argued that when the plaintiff moved in state court to enter a default judgment against the resident defendant, the plaintiff thereby voluntarily removed the resident defendant from the case, leaving the action wholly between citizens of different states such that removal to federal court became appropriate. The Illinois district court rejected that argument, holding that the entry of a default judgment against the resident defendant after expiration of ...

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