330 Empire LLC v. Toure

Filing 4

MEMORANDUM AND ORDER: Defendant's 2 request to proceed in forma pauperis is granted solely for the purpose of this Order. Accordingly, because this Court lacks subject-matter jurisdiction over this action, and in any event, de fendant did not timely file a notice of removal, the Court hereby remands the action to the Civil Court of the City of New York, County of Kings, Index No. 79358/11, and denies defendant's 12/27/2011 motion 3 for a preliminary injunction an d temporary restraining order. The Clerk of Court is respectfully requested to (1) serve a copy of this Memorandum and Order on the parties; (2) immediately send a certified copy of this Memorandum and Order to the Clerk of the Civil Court of the City of New York, County of Kings, Index No. 79358/11; and (3) close the case in this court. Any appeal must be filed within 30 days after judgment is entered in this case. 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 purpose of an appeal. SO ORDERED by Judge Kiyo A. Matsumoto, on 12/28/2011. C/mailed. (Civil Case Terminated.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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330 EMPIRE LLC,

NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM

- against -

AND ORDER

11-CV-6141 (KAM)
NABAY TOURE,
Defendant.
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..

.'~. ,-

--------------------------------x
MATSUMOTO, United States District Judge:

On December 13, 2011, Nabay Toure ("petitioner" or
"defendant"), appearing pro se, filed a notice seeking to remove
a civil proceeding filed by 330 Empire LLC ("plaintiff") on July
22, 2011, in the Civil Court of the City of New York, County of
Kings, Index No. 79358/11 ("the State Court Action") .
No.1, Notice of Removal, at

~~

1-12.)

(See ECF

The underlying State

Court Action involves the eviction of defendant's store from
plaintiff's commercial property at 1026 Nostrand Avenue in
Brooklyn.

(See ECF No.1, Notice of Removal, Unmarked Exhibit -

Notice of Eviction, at 21.1)
On December 27, 2011, defendant filed a Motion for
Emergency Preliminary Injunctive Relief and Temporary
Restraining Order seeking this court's intervention to stop the
pending eviction ordered by the Civil Court of the City of New
This number refers to the page number assigned by the Electronic Case Filing
(ECF) system.

1

1

York.

(See Defendant's Motion for Emergency Preliminary

Injunctive Relief and Temporary Restraining Order Pursuant to
FRCP Rule 65 ("OTSC") .2)

Defendant's request to proceed in forma

pauperis is granted solely for the purpose of this order.
the reasons set forth below, the court (1)

finds that removal of

the State Court Action should not be permitted;
petition for removal;

For

(2) denies the

(3) denies the motion for a preliminary

injunction and temporary restraining order; and (4) remands the
State Court Action to the Civil Court of the City of New York,
County of Kings, pursuant to 28 U.S.C.

§

1447(c).

"[F]ederal courts are courts of limited jurisdiction
and may not decide cases over which they lack subject matter
jurisdiction."

Lyndonville Sav. Bank

211 F.3d 697, 700 (2d Cir. 2000).

&

Trust Co. v. Lussier,

Accordingly, "[i]f at any

time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded."
28 U.S.C.

§

1447 (c).

"The burden is on the removing party to

prove that it has met the requirements for removal."
Corp. v. Wilson,

Codapro

997 F. Supp. 322, 325 (E.D.N.Y. 1998)

(citations omitted).
The criteria for removing a civil action from state
court to federal court are set forth in 28 U.S.C.

§

1441.

The

statute provides, in relevant part, for removal of claims over
2 This document does not yet have an Electronic Case Filing
(ECF) number
because it has not yet been filed on ECF.

2

which the federal courts have "original jurisdiction," 28 U.S.C.
§

1441(b), meaning that a claim may be removed to federal court

only if it could have been filed in federal court in the first
instance.

Fax Telecommunicaciones Inc. v. AT&T, 138 F.3d 479,

485 (2d Cir. 1998); see Caterpillar, Inc. v. Williams,
386, 392 (1987)

482 U.S.

("Only state-court actions that originally could

have been filed in federal court may be removed to federal court
by the defendant.").
This court lacks subject-matter jurisdiction over the
State Court Action because defendant has failed to show that
removal of the State Court Action is proper in the instant case.
Under the Rooker-Feldman doctrine, cases "brought by [a] statecourt loser[ ] complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments," are barred in federal courts, which lack
subject-matter jurisdiction over such actions.
Corp. v. Saudi Basic Indus., 544 U.S. 280, 284

Exxon Mobil
(2005).

In Hoblock v. Albany Cnty. Bd. of Elections, the
Second Circuit set forth four factors to determine whether the
Rooker-Feldman doctrine applies:
court;

(1) the party lost in state

(2) the party complains of an injury caused by the state

court order;

(3) the party seeks a federal court's review of the

state court's process and rejection of the state court's

3

determinations; and (4) the state court determinations in
question were rendered before the federal action was commenced.
422 F.3d 77,

85 (2d Cir. 2005).

This court lacks subject-matter

jurisdiction over the claims defendant seeks to litigate here
because each of the Hoblock requirements are met.

A judgment

was entered against defendant in the State Court Action before
he commenced this action in federal court.

(See ECF No.1,

History of Proceedings in State Court Action, at 23.)

Moreover,

defendant seeks the federal court's review and rejection of the
process employed in state court, which allegedly violated his
constitutional rights.

(See Notice of Removal, at

~~

4-5.)

Because the district court lacks subject-matter jurisdiction
over these claims which, in essence, appeal from a state court
judgment, the claims must be remanded to state court.
Hoblock,

See

422 F.3d at 86.
Furthermore, even if the court had original

jurisdiction over this matter, which it does not, defendant did
not timely file a notice of removal "within thirty days after
[defendant's] receipt.

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," as required by
28 U.S.C.

§

1446(b).

See Somlyo v. J. Lu-Rob Enters., Inc.,

F.2d 1043, 1046 (2d Cir. 1991)

(holding that the thirty-day

deadline for a notice of removal under 28 U.S.C.

4

§

1446(b) is

932

mandatory and rigorously enforced).

Rather, defendant filed a

notice of removal in this court on December 13, 2011, more than
three months after plaintiff commenced the underlying state(Notice of Removal at

court action against defendant.

~

1.)

Therefore, in any event, removal is improper as untimely filed.
Accordingly, because this court lacks subject-matter
jurisdiction over this action, and in any event, defendant did
not timely file a notice of removal, the court hereby remands
the action to the Civil Court of the City of New York, County of
Kings, Index No. 79358/11, and denies defendant's December 27,
2011 motion for a preliminary injunction and temporary
restraining order.
The Clerk of Court is respectfully requested to
(1) serve a copy of this Memorandum and Order on the parties and
note service on the docket;

(2) immediately send a certified

copy of this Memorandum and Order to the Clerk of the Civil
Court of the City of New York, County of Kings,
79358/11; and (3) close the case in this court.

Index No.
28 U.S.C.

§

1447(c).
Any appeal must be filed within thirty days after
judgment is entered in this case.

Fed. R. App. P. 4(a) (1) (A).

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 purpose of an

5

appeal.

See Coppedge v. United States, 369

u.s.

438, 444-45

(1962) .

so

ORDERED.

Dated:

Brooklyn, New York
December 2~, 2011

r
,./-----

. V

KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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