Thornton-Burns Owners Corporation v. Navas et al

Filing 69

ORDER granting 62 Motion to Remand to State Court. For the reasons set forth in the attached, the Navases' motion to remand 62 is granted. The case is remanded to New York Supreme Court, Queens County. The Clerk of the Court is respectfully directed to terminate all pending motions. Ordered by Judge Pamela K. Chen on 8/26/2014. (Galeotti, Matthew)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THORNTON-BURNS OWNERS
CORPORATION,
Not for Publication
Plaintiffs,
MEMORANDUM & ORDER
13-CV-4241 (PKC) (VMS)

-againstERWIN NAVAS and MAYRA NAVAS
(a/k/a MAYRA RIVAS),
Defendants.
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ERWIN NAVAS and MAYRA NAVAS
(a/k/a MAYRA RIVAS),
Counter-Claim Plaintiffs,
-againstDouglas Elliman Property Management, et al.,
Counter-Claim Defendants,
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PAMELA K. CHEN, United States District Judge:

The Court previously denied defendants/counter-claim plaintiffs’ Erwin and Mayra
Navas’s (the “Navases”) motion to remand this case to state court because the Navases had
counterclaimed against the United States, which, in turn, had properly removed to this Court
under 28 U.S.C. § 2679 and § 28 U.S.C. 1442. (See Memorandum & Order dated 4/19/14, [40]).
The Navases subsequently stipulated to dismiss with prejudice any claim against any federal
defendant, ostensibly so the Court would remand this case to state court. (See [56], [59].) The
only remaining federal question in this case is the Navases federal RICO counter-claim. The
Supreme Court has made clear that “a counterclaim—which appears as part of the defendant’s
answer, not as part of the plaintiff’s complaint—cannot serve as the basis for ‘arising under’

jurisdiction.” Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
Although the Court is sympathetic to counter-claim defendants’ concern about undue delay given
the seemingly frivolous nature of the pending RICO counter-claim, the Court does not have
discretion to keep a case, as here, over which it has no jurisdiction. 28 U.S.C.A. § 1447 (“If at
any time before final judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.”) For that reason, the Navases’ motion to remand [62] is granted.
The case is remanded to New York Supreme Court, Queens County. All pending motions will
be terminated.

SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: August 26, 2014
Brooklyn, New York