Singh v. Gottesman et al

Filing 11

ORDER denying 9 Motion for Reconsideration ; denying 10 Motion for Reconsideration -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, defendants' motion for reconsideration of this Court's Order of June 3, 2016 that remanded this case to state court is denied. This case remains remanded to state court and previously was closed by Court order. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/22/2017. (Irizarry, Dora)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------x SUKHWINDER SINGH, : : Plaintiff : : -against: : ROBERT GOTTESMAN and : NEAL FROHLICH : : Defendants. : -----------------------------------------------------------------x DORA L. IRIZARRY, Chief Judge: SUMMARY ORDER 16-cv-2277 (DLI) On May 5, 2016, defendant Robert Gottesman (“Gottesman”) filed a notice to remove this action from the Supreme Court of the State of New York, Kings County to this Court. Notice of Removal (the “Notice”), Dkt. Entry No. 1. On June 3, 2016, this Court remanded the case to the state court, sua sponte. Order Remanding Case to State Court, dated June 3, 2016 (the “Remand Order”). On June 16, 2016, Gottesman filed a motion for reconsideration of the Remand Order. Motion for Reconsideration (the “Motion”), Dkt. Entry No. 9. For the reasons set forth below, the Court lacks jurisdiction to consider the Motion under 28 U.S.C. § 1447(d), and the case remains remanded to the state court. BACKGROUND The Notice provides the following information concerning the procedural history and removability of this case. On February 24, 2016, the plaintiff Sukhwinder Singh (“Plaintiff”) served Gottesman with a summons and complaint. On March 2, 2016, Gottesman served his answer, and on April 22, 2016, co-defendant Neil Frolich (“Frolich”) served his answer. According to Gottesman, “upon information and belief,” Plaintiff seeks to recover more than $75,000, exclusive of interests and costs. Notice at ¶6. Plaintiff is a “resident” of New York, 1 while Gottesman and Frolich are “residents” of New Jersey. Notice at ¶¶ 7-9. The Court remanded the case, sua sponte, on the ground that it was removed untimely pursuant to 28 U.S.C. § 1446(b) and relevant Second Circuit precedent. In the Motion, Gottesman states that in issuing the Remand Order, the Court “overlooked” 28 U.S.C. § 1446(b)(3), which provides that if a case is not removable as indicated in the initial pleadings, a defendant may file a notice of removal within 30 days of receiving any paper from which removability may be ascertained. Gottesman notes that, because the complaint alleges that both Plaintiff and Frolich are residents of New York, there was not complete diversity. It was only on April 22, 2016, when Gottesman received Frolich’s answer, that Gottesman discovered that Frolich was a resident of New Jersey. Thus, according to Gottesman, because he did not ascertain that the case was removable until April 22, 2016, the Notice was timely under § 1446(b)(3). DISCUSSION 28 U.S.C. § 1447(c) states that “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal.” Id. § 1447(c). It further provides that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id. § 1447(d) states that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Id. § 1447(d). The Supreme Court has found that “§ 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711–12 (1996) (quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995) (quotation marks omitted)); accord Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345 (1976) (“[O]nly remand orders issued under § 1447(c) and invoking the grounds specified 2 therein . . . are immune from review under § 1447(d).”). Federal appellate courts, including the Second Circuit, have universally recognized “that the ‘or otherwise’ language of section 1447(d) bars district courts from reconsidering orders remanding cases on section 1447(c) grounds.” Shapiro v. Logistec USA, Inc., 412 F.3d 307, 311 (2d Cir. 2005) (collecting cases). The Remand Order cited Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006) for the proposition that “district courts [may] remand cases sua sponte based on procedural grounds where remand occurs within 30 days of the filing of the notice of removal.” Remand Order (citing Mitskovski, 435 F.3d at 131). The relevant section of Mitskovski states: We have interpreted section 1447(c) to authorize a remand for either a procedural defect asserted within 30 days of the filing of notice of removal or a lack of subject matter jurisdiction. Such remands, because they are authorized by section 1447(c), are barred from review by section 1447(d). However, “an order remanding on procedural grounds either upon an untimely motion or sua sponte more than 30 days after removal, since such order is not authorized by § 1447(c), is reviewable.” Id. at 131 (quoting Hamilton v. Aetna Life and Casualty Co., 5 F.3d 642, 644 (2d Cir.1993) (additional citations omitted)). Thus, if a sua sponte remand “more than 30 days after removal . . . is not authorized by § 1447(c),” the negative implication of Mitskovski is that a sua sponte remand less than 30 days after removal is authorized by that statue. Id.; see also Hamilton, 5 F.3d at 644 (emphasis added) (finding that a district court lacked authority under § 1447(c) to remand a case on procedural grounds, because the procedural “defect was waived by the failure of [the defendant], or the court sua sponte, to raise the matter within 30 days of removal.”). Indeed, at least one case from this District interprets Mitskovski as “impliedly recognizing a district court’s right to, sua sponte, remand for procedural defects where the district court acts within 30 days of removal.” Allfour v. Bono, 2011 WL 2470742, at *1 (E.D.N.Y. May 5, 2011), report and recommendation adopted, 2011 WL 3 2470734 (E.D.N.Y. June 22, 2011); see also Cassara v. Ralston, 832 F. Supp. 752, 753 (S.D.N.Y. 1993) (“Although none of these cases addresses whether or not Section 1447(c) authorizes a district court to remand a case sua sponte for procedural defects [within 30 days of the filing of the notice of removal], . . . I believe that such remands are permitted.”). Here, the Court remanded the case sua sponte based on a “procedural defect” (untimeliness) within 30 days of the filing of the Notice. Although § 1447(c) authorizes remand based on a procedural defect raised within 30 days of removal, the statute itself is silent as to whether a district court may remand on this ground sua sponte. Thus, rather than cite the statute, the Court relied on Mitskovski’s construction of § 1447(c) as authorizing remand sua sponte under these circumstances. As such, because the Remand Order was ultimately based on § 1447(c), § 1447(d) prohibits consideration of the Motion. This case remains remanded to the state court. SO ORDERED Dated: Brooklyn, New York March 22, 2017 /s/ Dora L. Irizarry Chief Judge 4

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