Ohno Enterprises v. Allen

Filing 7

ORDER. For the reasons stated in the annexed memorandum and order, plaintiff's motion to remand this action to state court ( 3 , 5 ) is GRANTED. The Clerk of Court is respectfully directed to remand this action and close the case. Ordered by Judge Kiyo A. Matsumoto on 6/22/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
OHNO ENTERPRISES,
MEMORANDUM & ORDER
A NEVADA FAMILY LIMITED PARTNERSHIP,
15-CV-6675 (KAM) (RER)
Plaintiff,
-againstHUBERT ALLEN,
Defendant.
--------------------------------------X
MATSUMOTO, United States District Judge:
On

June

26,

2015,

plaintiff

Ohno

Enterprises

(“plaintiff”), a Nevada family limited partnership, brought this
action

against

defendant

Hubert

Allen

(“defendant”)

in

the

Supreme Court of the State of New York, Kings County, seeking,
inter alia, to dissolve a partnership entered into by the two
parties and sell their partnership’s real property. Almost four
months after he was served with the summons and complaint in
July 2015, defendant filed an unsigned notice of removal in this
court

on

November

23,

2015.

Plaintiff

subsequently

filed

a

motion to remand the action to state court, arguing that the
removal was untimely. Because defendant indisputably knew facts
that

enabled

him

to

assess

removability

at

the

time

he

was

served with the complaint, and the removal occurred well outside
the

30-day

window

prescribed

by

28

U.S.C.

§ 1446(b)(1),

defendant’s

tardy

removal

was

not

excusable

and

plaintiff’s

motion to remand is GRANTED.
BACKGROUND
The
complaint,

the

instant motion

following
notice

facts
of

derive

removal,

principally

and

the

from

briefing

seeking remand. 1 Plaintiff is a

on

the
the

Nevada Family

Limited Partnership formed by Liam D. Fleming and Mark Edward
Fleming. (See ECF. No. 6, Complaint (“Compl.”) at ¶¶ 2-3.) On
June 12, 2001, Liam Fleming, as “general partner and on behalf
of”

plaintiff,

entered

into

an

“Understanding

and

Letter

Agreement” with defendant to “memorialize” the terms of an oral
general

partnership

through

which

they

purchased

66

Rogers

Avenue (“66 Rogers Avenue” or “the property”) in Brooklyn, New
York. (Id. at ¶ 10.) As equal general partners, plaintiff and
defendant each obtained a 50 percent interest in the property.
(ECF No. 1, Notice of Removal, at ¶ 19; ECF No. 1, Affidavit in
Support of Notice of Removal by Hubert Allen (“Allen Aff.”) at
¶ 4;

see

also

Compl.

at

¶ 12.)

Although

title

to

66

Rogers

Avenue was placed in defendant’s name, the partnership agreement

1

See The Lab, LLC v. Travelers Prop. Cas. Co. of Am., No. 14-CV-7773,
2016 WL 264939, at *1 (S.D.N.Y. Jan. 21, 2016) (taking facts alleged
in complaint as true in deciding motion to remand); Ritchie Capital
Mgmt., L.L.C. v. BMO Harris Bank, N.A., No. 14-CV-1936, 2015 WL
1433320, at *1 (S.D.N.Y. Mar. 30, 2015) (same). The court is permitted
to look to documents appended to a notice of removal or a motion to
remand to determine removability. See Romano v. Kazacos, 609 F.3d 512,
520 (2d Cir. 2010); Davenport v. Procter & Gamble Mfg. Co., 241 F.2d
511, 514 (2d Cir. 1957).

2

expressly made the property an asset of the partnership. (Compl.
at ¶ 15.)
When the parties purchased 66 Rogers Avenue in 2001,
they paid a total of $170,000. (Allen Aff. at ¶ 5.) Defendant
estimates

that

the

value

of

the

property

is

now

between

$1,700,000 and $2,116,349. (Id.; ECF No. 5, Ex. 4, Defendant’s
Opposition to Plaintiff’s Motion to Remand (“Def. Mem.”) at 2.)
When Liam Fleming died in 2014, a Nevada state court appointed
Mark Fleming as the personal representative of Liam Fleming’s
estate.

(Compl.

at

¶¶ 4-7.)

Liam

Fleming’s

death

led

to

a

dispute after his widow expressed her desire to sell 66 Rogers
Avenue. (Id. at ¶¶ 17-27, 35-38; see also Allen Aff. at ¶ 7.)
On June 26, 2015, plaintiff brought this action in New
York state court seeking, inter alia, to wind up the partnership
and force the sale of 66 Rogers Avenue. (Compl. at ¶¶ 45, 49.)
Among other relief requested, plaintiff sought “judgment for one
half of the proceeds of the sale of 66 Rogers Avenue.” (Id. at
¶ 49(j).) On July 24, 2015, plaintiff served defendant with the
summons

and

complaint.

(Allen

Aff.

at

¶ 9;

ECF

No.

5,

Declaration of Ali Weinberg in Support of Plaintiff’s Motion to
Remand (“Pl. Mem.”) at 1; ECF No. 5, Ex. 1.) Defendant alleges
that he “promptly turned over the summons and complaint to Ms.
Ellen Edwards, Esq.,” his prior counsel. (Notice of Removal at
¶ 10.) Defendant, however, failed to timely answer the complaint
3

in state court. On September 11, 2015, plaintiff filed a motion
seeking

a

default

judgment

in

state

court,

which

remains

pending. (Pl. Mem. at 1-2.)
On November 20, 2015, defendant removed the action to
this

court,

removal

(or

although
attach

he
a

failed

copy

of

to
all

file

a

signed

“process,

notice

pleadings,

of
and

orders”) as required by 28 U.S.C. § 1446(a). 2 (See Notice of
Removal.) On November 23, 2015 plaintiff timely moved to remand
the matter to the Supreme Court of the State of New York, Kings
County. (ECF No. 3, Plaintiff’s Motion to Remand.) The parties
subsequently briefed the remand issue. (See Pl. Mem.; Def. Mem.;
ECF No. 5, Ex. 5, Plaintiff’s Reply Memorandum of Law (“Pl.
Reply”).)
DISCUSSION
In

opposing

plaintiff’s

remand

motion,

defendant

argues that the removal was timely because plaintiff’s initial

2

The court also notes that this action was removed in violation of the
“forum defendant rule” — codified at 28 U.S.C. § 1441(b)(2) — which
precludes removal in a diversity action “if any of the parties in
interest properly joined and served as defendants is a citizen of the
State in which such action is brought.” Because defendant is a New
York citizen (Allen Aff. at ¶ 1), § 1441(b)(2) would generally
preclude removal. The court recognizes, however, that plaintiff has
not raised the forum defendant rule in objecting to removal and that
§ 1441(b) is a “rule of procedure and does not state a jurisdictional
requirement.” Shapiro v. Logistec USA Inc., 412 F.3d 307, 313 (2d Cir.
2005); see also Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213
F.3d 48, 50 n. 2 (2d Cir. 2000) (holding that although the defendant
was a forum state citizen and could therefore not remove under
§ 1441(b)(2), “[plaintiff] waived his right to object to this
procedural defect . . . by failing to raise the objection within 30
days of removal”).

4

pleading does not explicitly state the amount in controversy
and,

therefore,

the

30-day

deadline

for

removal

generally

prescribed by 28 U.S.C. § 1446(b)(1) was tolled. (See Def. Mem.
at 2.) Defendant also claims that equity demands he not suffer
the

consequences

of

his

former

attorney’s

“abandonment

and

negligence” via a state court default judgment. (See id. at 3.)
The

court

will

first

provide

the

legal

standards

governing

removal of state actions to federal court, and turn next to
defendant’s arguments.
I.

Legal Standard Governing Removal
Under

28

U.S.C.

§ 1332(a),

district

courts

have

original jurisdiction over all civil actions where the amount in
controversy

exceeds

citizenship.

If

$75,000

the

and

district

there

court

is

diversity

would

have

of

original

jurisdiction, the defendant may remove an action from the state
court

to

which

the

action

the

federal

state

otherwise

district

action

is

court

pending.

removable

based

on

for
28

the

district

U.S.C.

diversity

§

within

1441(a).
“may

not

An
be

removed if any of the parties . . . properly joined and served
as defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b).
Removal
occur

“within

30

to

a

days

federal
after

district
the

court

receipt

by

generally
the

must

defendant,

through service or otherwise, of a copy of the initial pleading
5

setting forth the claim for relief upon which such action or
proceeding

is

based.”

exists

the

30-day

to

initial

pleading

is

28

U.S.C.

removal
not

§ 1446(b)(1).

deadline,

removable.”

An

however,

Id.

exception
when

“the

§ 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).

Essentially,

§ 1446(b)(3)

provides

that

the 30-day removal clock is not triggered until a defendant can
determine that a case is removable. 3
The
addressed

the

Second

Circuit

applicability

has,
of

on

three

§ 1446(b)

recent

in

the

occasions,
context

of

diversity actions. First, in Whitaker v. American Telecasting,
Inc., the Second Circuit addressed a suit initially brought by
an attorney in New York state court — principally against his
former client and an out-of-state corporation that had opposed
the

client

—

alleging

that

the

defendants

had

conspired

to

deprive him of legal fees. 261 F.3d 196, 199, 207, 209 (2d Cir.
2001). A summons with notice served on defendants lacked the

3

Section 1446(c)(1) contains a backstop provision preventing an
extremely delayed removal. See § 1446(c)(1) (“A case may not be
removed under subsection (b)(3) on the basis of jurisdiction conferred
by section 1332 more than 1 year after commencement of the action,
unless the district court finds that the plaintiff has acted in bad
faith in order to prevent a defendant from removing the action.”).

6

addresses

of

the

defendants,

but

a

later-served

complaint

rendered the removability of the action indisputable. Id. at
206. Defendants’ removal could only be considered timely if the
30-day

removal

clock

had

been

triggered

by

the

later-served

complaint. Id. at 199-200, 206. The Second Circuit held that a
case
is removable when the initial pleading enables the
defendant to intelligently ascertain removability from
the face of such pleading, so that in its petition for
removal, the defendant can make a short and plain
statement of the grounds for removal as required by 28
U.S.C. § 1446(a). A pleading enables a defendant to
intelligently ascertain removability when it provides
the necessary facts to support the removal petition.
In cases where removal is based upon diversity, the
facts required to support the removal petition include
the amount in controversy and the address of each
party. While this standard requires a defendant to
apply
a
reasonable
amount
of
intelligence
in
ascertaining removability, it does not require a
defendant to look beyond the initial pleading for
facts giving rise to removability.
Id.

at

205-06

alterations

(internal

omitted).

quotation

Because

only

marks,
the

citations,

complaint

and

permitted

defendants to intelligently ascertain removability, the removal
was timely. Id. at 206.
Subsequently, the Second Circuit narrowed the holding
in Whitaker. In Moltner v. Starbucks Coffee Co., the plaintiff
brought a personal injury suit in New York state court against
Starbucks alleging that she suffered burns from a hot beverage,
but did not specify the damages she sought. 624 F.3d 34, 35-36

7

(2d Cir. 2010). Three months after the plaintiff filed suit, the
plaintiff revealed in response to a letter from the defendant
that

she

Starbucks

sought

more

than

$75,000

removed

the

suit

within

in
30

damages.
days

at

36.

receiving

of

Id.

the

plaintiff’s letter. Id. The plaintiff sought a remand to state
court,

arguing

that

Starbucks

could

have

applied

Whitaker’s

“reasonable amount of intelligence” standard to the complaint to
ascertain that the amount in controversy exceeded $75,000. Id.
at 37. The Second Circuit rejected the plaintiff’s argument, and
held that “the removal clock does not start to run until the
plaintiff

serves

specifies

the

the

defendant

amount

of

with

monetary

a

paper

damages

that

sought.”

explicitly
Id. at

38

(emphasis added).
Finally,

in

Cutrone

v.

Mortgage

Electronic

Registration Systems, Inc., the Second Circuit explained that in
Class Action Fairness Act (“CAFA”) cases, the “Moltner standard”
—

despite

Moltner’s

language

regarding

“explicit[]”

specification of damages sought — still required defendants to
“‘apply

a

reasonable

removability,’”
investigation.

but
749

amount
did

F.3d

of

intelligence

not

137,

143

require
(2d

Cir.

in
an

ascertaining
independent

2014)

(quoting

Whitaker, 261 F.3d at 206). The Cutrone court explained:
While a defendant must still apply a “reasonable
amount
of
intelligence”
to
its
reading
of
a
plaintiff’s complaint, we do not require a defendant
8

to
perform
an
independent
investigation
into
a
plaintiff’s indeterminate allegations to determine
removability and comply with the 30–day periods of 28
U.S.C. §§ 1446(b)(1) and (b)(3). Thus, a defendant is
not required to consider material outside of the
complaint or other applicable documents for facts
giving rise to removability, and the removal periods
of 28 U.S.C. §§ 1446(b)(1) and (b)(3) are not
triggered
until
the
plaintiff
provides
facts
explicitly
establishing
removability
or
alleges
sufficient information for the defendant to ascertain
removability.
Id. at 145 (emphasis added). Whitaker’s “reasonable amount of
intelligence” standard, in other words, survived Moltner. 4
“[F]ederal
narrowly,
Pharma

resolving

L.P.

(internal

v.

courts
any

doubts

Kentucky,

quotation

construe

704

marks

the

against
F.3d

and

removal

statute

removability.”

208,

citation

213

(2d

omitted).

Cir.

Purdue
2013)

Moreover,

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”). Although the pending motion is plaintiff’s motion
for

remand,

the

burden

is

on

defendant

to

establish

removability. See Cal. Pub. Employees’ Ret. Sys. v. WorldCom,
Inc., 368 F.3d 86, 100 (2d Cir. 2004) (noting that on a motion

4

Although Cutrone dealt with removal in the context of CAFA, which
sets forth a $5,000,000 jurisdictional threshold, see 28 U.S.C.
§ 1332(d)(2), “the Second Circuit’s opinion does not rest on or even
discuss anything about CAFA that would limit the force of its holding
in non-CAFA cases.” Veleron Holding, B.V. v. Stanley, No. 14-CV-7874,
2014 WL 6386733, at *3 (S.D.N.Y. Nov. 13, 2014).

9

to remand, “the defendant bears the burden of demonstrating the
propriety

of

removal”

(internal

quotation

marks

and

citation

omitted)); Burr ex rel. Burr v. Toyota Motor Credit Co., 478 F.
Supp.

2d

asserting

432,

436

(S.D.N.Y.

jurisdiction

bears

2006)
the

(“At

burden

all

times

the

party

of

proof

that . . .

procedural requirements have been met.”).
II.

The 30-Day Removal Deadline Was Not Tolled
Here, the court would have original jurisdiction over

the matter in controversy. First, the parties are diverse. The
plaintiff partnership is a partnership created under Nevada law.
(Compl. at ¶ 2.) Plaintiff’s only living member, Mark Fleming,
is a citizen and resident of Nevada. 5 (Def. Mem. at 2.) Defendant
is a citizen and resident of New York. (Compl. at ¶ 1; Allen
Aff. at ¶ 1.) Second, the amount in controversy exceeds $75,000.
Plaintiff seeks, inter alia, half of the proceeds from the sale
of

real

property

located

at

66

Rogers

Avenue.

(Compl.

at

¶ 49(j).) Defendant admits that the value of 66 Rogers Avenue
was $170,000 in 2001 (Allen Aff. at ¶ 5), and represents that
the property is now worth between $1,700,000 and $2,116,349.
(See Allen Aff. at ¶ 5; Def Mem. at 2; Def. Mem., Ex. A.)

5 See Astra Oil Trading v. PRSI Trading Co. LP, 794 F. Supp. 2d 462,
469 (S.D.N.Y. 2011) (“Because defendant is a limited partnership,
diversity jurisdiction in a suit against it depends on the citizenship
of all of its members.”).

10

In seeking remand, plaintiff does not argue that the
case

was

never

removable,

but

only

that

the

removal

was

untimely. See Cutrone, 749 F.3d at 146 (“[W]hether a basis for
removal exists and whether removal is timely are two separate
questions.”). Because defendant did not remove the case until
approximately four months after service of the complaint, well
beyond the 30-day window prescribed by § 1446(b)(1), plaintiff
maintains

that

response,

argues

that

triggered

because

plaintiff

amount

in

this

action

controversy.”

must

be

remanded.

§ 1446(b)(1)’s
never

(Def.

30-day

clock

at

2.)

in

was

not

specif[ied]

“explicitly

Mem.

Defendant,

the

Defendant

relies

exclusively on Moltner, which, as noted above, held that the
“removal clock does not start to run until the plaintiff serves
the defendant with a paper that explicitly specifies the amount
of monetary damages sought.” 624 F.3d at 38 (emphasis added).
In isolating the Moltner language regarding explicit
specification

of

damages,

however,

defendant

overlooks

the

Second Circuit’s decisions both before and after Moltner. In
Whitaker, as discussed earlier, the Second Circuit held that a
defendant must “apply a reasonable amount of intelligence in
ascertaining removability.” 261 F.3d at 206. In Cutrone, which
post-dated Moltner, the Second Circuit reaffirmed Whitaker and
clarified that the removal deadline under § 1446(b) in a CAFA
case

is

triggered

when

an
11

initial

pleading

or

other

document either:

(1)

“explicitly

specifies

the

amount

of

monetary damages sought” or (2) “sets forth facts from which an
amount

in

threshold]

controversy
can

be

in

excess

ascertained.”

of

749

[the

F.3d

jurisdictional

at

145.

Because

plaintiff has not explicitly specified the amount of recovery
sought from the 50 percent share of proceeds from the sale of
the

property,

and

because

there

has

never

been

a

dispute

regarding complete diversity, the only question is whether the
complaint

(no

other

post-complaint

document

is

at

issue)

provided sufficient information for defendant to ascertain that
over $75,000 was in controversy in this action. 6 See id.
Plaintiff’s initial complaint was served on defendant
on July 24, 2015. (Pl. Mem., Ex. A.) The complaint put in issue

6

Significantly, defendant only argues that plaintiff failed to
explicitly state the damages amount. He has never argued that he did
not know the amount in controversy, nor does defendant assert that the
complaint did not permit him to ascertain the value of this action.
(See Def. Mem. at 2-3.) Nowhere in defendant’s affidavit in support of
removal does he allege that he was unaware of the value of this
action. Instead, defendant’s affidavit lays the blame for the untimely
removal exclusively on his prior counsel. (See Allen Aff. at ¶ 12
(“The only reason the summons and complaint was not answered in a
timely manner was because I relied on [prior counsel’s] promise that
she would draw up an answer and serve it to Plaintiff in an
appropriate and timely answer.” (emphasis added)).) Defendant’s
failure to argue that he could not ascertain the value of this action
provides an independent basis for the court to reject defendant’s
argument regarding § 1446(b), because an explicit statement of damages
sought is only one of two ways to trigger the § 1446(b) removal
clocks. See Cutrone, 749 F.3d at 145 (“[T]he removal clocks of 28
U.S.C. § 1446(b) are not triggered until the plaintiff serves the
defendant with an initial pleading or other document that explicitly
specifies the amount of monetary damages sought or sets forth facts
from which an amount in controversy in excess of [the jurisdictional
threshold] can be ascertained.” (emphasis added)).

12

plaintiff’s 50 percent stake in 66 Rogers Avenue when it sought,
inter alia, judgment for “one half of the proceeds of the sale
of 66 Rogers Avenue.” (See Compl. at ¶ 49(j).) The value of the
property

at

the

time

the

parties

purchased

it

in

2001

was

$170,000, according to defendant’s own affidavit. (Allen Aff. at
¶ 5.) Defendant represents that the property is now valued at
between $1,700,000 and approximately $2,116,349, and that he has
managed and improved the property. (Id.; see also Def. Mem. at
2.) This is not a case where the court has to guess at whether
the defendant subjectively knew about the amount in controversy
in the litigation. Here, defendant has effectively admitted that
he did know the amount in controversy.
Even

if

defendant

had

no

knowledge

regarding

the

extensive appreciation of the property’s value since the initial
purchase

in

2001,

defendant

would

have

been

on

notice

that

plaintiff’s 50 percent share of the property (valued at $170,000
at the time of purchase) was worth $85,000 (Allen Aff. at ¶ 5),
an

amount

Defendant

exceeding
has

the

jurisdictional

represented,

however,

threshold
that

he

by
had

$10,000.
intimate

knowledge regarding the property. In his affidavit in support of
removal, defendant stated that “[d]uring the fourteen (14) years
of

ownership

renovation
performed

of
all

of

the

same

premises
to

maintenance

make
and

I
it

have
fit

repairs;
13

affected
for

human

managed

a

complete

habitation;

the

premises;

paid all mortgage payments, insurance and real estate taxes.
During this same period plaintiff contributed approximately Five
Thousand Dollars ($5,000.00) towards all of the above.” (Id. at
¶ 6.) Defendant’s payment of real estate taxes and insurance for
the property each year since 2001 in particular establishes his
first-hand familiarity with the current fair market value of the
property,

which

defendant

states

is

between

$1,700,000

and

approximately $2,116,000. (Allen Aff. at ¶ 5; Def. Mem. at 2.). 7
If defendant had knowledge regarding the current fair market
value of the property, he also had knowledge that the amount in
controversy

in

this

action

far

exceeded

the

jurisdictional

diversity threshold. See, e.g., Caribbean Fertilizers Grp., Ltd.
v. Fersan Fertilizantes Santo Domingo, C. por A., No. 02-CV9919, 2003 WL 21961124, at *3 (S.D.N.Y. Aug. 18, 2003) (finding
defendant’s removal untimely in an action seeking lost profits
where defendant was on notice that the amount in controversy
exceeded

the

familiarity

jurisdictional

with

plaintiffs’

threshold
profits

based

and

the

on

defendant’s

parties’

prior

administrative litigation involving the same subject matter).
Defendant cannot have it both ways: he cannot claim
that

he

has

a

greater

stake

in

the

property

than

plaintiff

(based on his labor, investment, and close management of the
7

See In re Ancona, No. 14-10532, 2016 WL 1399265, at *5 (Bankr.
S.D.N.Y. Apr. 6, 2016) (“[R]eal estate taxes and property insurance
are
all
clearly
related
to
the
value
of
the
Lease
or
Building . . . .”).

14

property) while simultaneously arguing that he could not have at
least known the property’s approximate current value (half of
which still far exceeds the jurisdictional threshold). Further,
defendant does not explain when or how he determined that the
value

of

this

action

exceeded

$75,000,

which

substantially

weakens any suggestion that he did not know upon service of the
complaint that the amount in controversy permitted removal.
Accordingly, § 1446(b)(3) did not toll the time for
removal based on a lack of specificity regarding the damages
sought by plaintiff. The complaint, with its specification that
half the value of 66 Rogers Avenue was in issue, “set[] forth
facts from which an amount in controversy in excess of [the
jurisdictional

threshold]

could

be

ascertained,”

in

light

of

defendant’s admission that he knew the value of the property.
Cutrone, 749 F.3d at 148; see also Whitaker, 261 F.3d at 206
(requiring

defendants

intelligence

in

to

“apply

ascertaining

a

reasonable

removability”).

The

amount

of

complaint

therefore triggered the § 1446(b)(1) removal clock when service
was effected on July 24, 2015. Defendant had 30 days — until
August 24, 2015 — to remove this action. See § 1446(b)(1); see
also Fed. R. Civ. P. 6(a)(1). Defendant did not remove until
November 20, 2015, 88 days after the deadline for removal under
§ 1446(b)(1).

15

III. Defendant’s Former Attorney’s Purported Negligence Did Not
Toll the Removal Deadline
Defendant

next

argues

that

“[p]rinciples

of

equity”

demand that the court permit his belated removal of this action
because he “should not be penalized, via a default judgment, for
the

egregious

abandonment

and

negligence

of

his

former

attorney.” (Def. Mem. at 3.) Plaintiff argues that avoiding a
default in state court is not a valid basis for removal and, in
any

event,

that

there

is

no

evidence

defendant

ever

even

contacted his prior attorney. (Pl. Mem. at 2; Pl. Reply at 5.)
Defendant relies on Addison v. Reitman Blacktop, Inc.,
which

recognized

that

“default

judgments

are

disfavored”

and

that a “clear preference exists for cases to be adjudicated on
the merits.” 272 F.R.D. 72, 77 (E.D.N.Y. 2010) (citing Pecarsky
v.

Galaxiworld.com

(internal

Ltd.,

quotation

249

marks

F.3d

167,

omitted).

174

(2nd

Addison

is

Cir.

2005))

inapposite.

Addison was a garden variety default case in which a complaint
filed in federal court was not timely answered. Id. at 74-75.
The clerk of court entered a notation of default, the defendants
moved

to

defendants’

set

aside

motion

in

the
part

default,
based

and
on

the

the

court

granted

“well-established

preference for litigating disputes on the merits.” Id. at 75,
82. Addison did not involve the federalism and statutory removal
deadline concerns presented by this action. In addition, there

16

was no pending state court motion for default judgment, nor did
Addison involve an action that originated in state court. That
default judgments are generally disfavored in federal court and
will not be granted readily does not speak to whether the court
in this action should excuse a late removal.
Further, it is not at all clear that defendant will in
fact be penalized for his former attorney’s alleged “egregious
abandonment and negligence” with a default judgment in state
court. (Def. Mem. at 3.) The state court docket reflects only a
pending motion seeking a default judgment, but no action on the
motion by the court. New York law expressly permits courts to
exercise their discretion “in the interests of justice to excuse
delay

or

default

resulting

from

law

office

failure.”

N.Y.

C.P.L.R. § 2005; see also Cruz v. TD Bank, N.A., No. 10-CV-8026,
2015 WL 437393, at *3 (S.D.N.Y. Feb. 3, 2015) (recognizing that
New York courts can excuse a default caused by an attorney’s
negligence); 73 N.Y. Jur. 2d Judgments § 297 (“The adoption of
C.P.L.R. 2005, which permits the courts to vacate a default that
had occurred solely as a result of law-office failure, is in
general accord with earlier law to the effect that, by virtue of
its inherent power, a court may open a default judgment due to
inadvertence

and

neglect

of

attorneys.”

(footnotes

omitted)).

Accordingly, defendant will be free after remand to state court
to seek relief from default and litigate whether default should
17

be excused based on his attorney’s purported negligence that
resulted

in

his

failure

to

timely

answer

the

state

court

complaint.
CONCLUSION
Defendant has not met his “burden of demonstrating the
propriety of removal.” WorldCom, Inc., 368 F.3d at 100 (internal
quotation marks and citation omitted). For the reasons stated
above, plaintiff’s motion to remand this action to state court
is

GRANTED.

The

Clerk

of

Court

is

respectfully

directed

to

remand this action and close the case.
SO ORDERED.
Dated:

June 22, 2016
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

18