Cox v. City of New York et al

Filing 12

ORDER granting Plaintiff's 6 Motion to Remand to State Court. The Clerk of Court is respectfully DIRECTED to send a certified copy of this Order to the Clerk of Court of the Supreme Court of New York, County of Kings, 360 Adams Street, Brooklyn, New York 11201. So Ordered by Judge Nicholas G. Garaufis on 11/14/2016. (c/m to Interior Alterations Inc., certified copy mailed to NYS-Kings County, Index No. 1353/16) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

CAROLE COX,

ORDER

Plaintiff,

16-CV-2501(NGG)
(SMG)

-againstTHE CITY OF NEW YORK,INTERIOR
ALTERATIONS,INC., SKYWORX CONTRACTING,
INC., SPRING SCAFFOLDING,LLC,TOP SHELF
ELECTRIC CORP.,PAUL COMPTON,ANDREA
COMPTION,and lA CONSTRUCTION
MANAGEMENT,INC.,
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.
On May 17, 2016, Defendant LA Construction Management,Inc.("LA"), removed the
instant personal injury action to this court from the Supreme Court ofNew York, County of
Kings, pursuant to 28 U.S.C. § 1332(a)(2). (Notice of Removal(Dkt. 1)

6-7.) On

June 15,2016,Plaintiff Carole Cox moved to remand the case back to state court. (Mot. to

Remand (Dkt. 6).) lA opposed Plaintiffs motion. (See Mem.in Opp'n to Mot. to Remand
("LA's Opp'n")(Dkt. 8).) For the reasons discussed below. Plaintiffs motion is GRANTED.

A federal court has diversity jurisdiction over any civil action where the amount in .
controversy exceeds $75,000, and the adverse parties are citizens of different states. 28 U.S.C.
§ 1332(al(l): see also Wolde-Meskel v. Vocational Instructional Project Cmtv. Servs.. Inc., 166

F.3d 59,61-62(2d Cir. 1999). However,"[a] civil action otherwise removable solely on the
basis of[diversity]jurisdiction ... may not be removed if any ofthe parties in interest properly
joined and served as defendants is a citizen ofthe State in which such action is brought." 28
U.S.C. § 1441(b)(2). In other words, an action is not removable on diversity grounds ifthe state

action was brought in the home forum of any defendant. Shapiro v. Logistec USA.Inc.,412
F.3d 307, 310(2d Cir. 2005). Here,lA admits that it is a citizen ofNew York and that the
lawsuit was filed in the Supreme Court of New York,County of BCings. (See Notice ofRemoval

11^ 2-3.) Accordingly, LA may not remove this action on grounds of diversity, and Plaintiffs

motion must be granted.^
For the foregoing reasons. Plaintiffs motion to remand is GRANTED,and the entire

action is REMANDED to the Supreme Court of New York, County of Kings. The Clerk of
Court is respectfully DIRECTED to send a certified copy ofthis Order to the Clerk of Court of
the Supreme Court ofNew York, County of Kings, 360 Adams Street, Brooklyn, New
York 11201, and to close the case in this court pursuant to 28 U.S.C. § 1447(c).
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

NICHOLAS G. GARAUFIJ

November /V ,2016

United States District Judge

' advances no argument as to why § 1441(b)(2)does not apply here. Instead, lA. attacks Plaintiffs motion as
lA
procedurally defective because Plaintiffsupposedly failed to adhere to this court's Individual Rules relating to pro
motion conferences, and because she failed to attach an attorney affirmation in accordance with this district's Local
Rule 7.1. (lA's Opp'n at 2-4.) Both arguments are without merit. As to the first, lA confuses a motion to remand to
state court pursuant to 28 U.S.C. § 1447, with a motion for a change of venue pursuant to 28 U.S.C. § 1404. (Id.
at 2(characterizing Plaiatiffs motion to remand as one "being made for change of venue").) No motion for a
change of venue was made here, only a motion to remand to state court. See E. Sav. Bank. FSB v. Estate of
Kirk. 821 F. Supp. 2d 543,546 n.l (E.D.N.Y. 2011)(motion for change of venue "applies only to courts within the
federal court system and makes no provision for transfer between federal and state court system."(citation and

internal quotation marks omitted)). While LA correctly notes that a party must seek a pre-motion conference before
moving for a change of venue, this court does not require such a conference for a motion to remand. (See Individual
Rules(Ex. A to lA's Opp'n(Dkt. 8-2)) at in.A.2.) Thus,the court's Individual Rule on pre-motion conferences was
not implicated. As to lA's Local Rule 7.1 argument. Plaintiffs failure to include an attorney affirmation when
attaching documents filed in state court is no reason to deny her motion to remand. As an initial matter,"[a] district
court has broad discretion to determine whether to overlook a party's failure to comply with local court rules."
Holtz V. Rockefeller & Co.. Inc.. 258 F.3d 62,73(2d Cir. 2001). Regardless,the court has not relied upon any of
the exhibited documents in deciding Plaintiffs motion to remand, and even if it had,the court may take judicial
notice ofthe documents filed in state court. See Blue Tree Hotels Inv.(CanadaV Ltd. v. Starwood Hotels & Resorts

Worldwide. Inc.. 369 F.3d 212,217(2d Cir. 2004). lA has not suffered any prejudice, and the court rejects its
technical objections to Plaintiffs motion.