Lora v. S.J. Costa & Son Trucking, Inc.

Filing 9

ORDER granting 5 Motion to Remand to State Court. For the reasons set forth in the attached Order, the Court remands the case to the Supreme Court of the State of New York, Kings County. Ordered by Judge Margo K. Brodie on 9/7/2016. (Deknatel, Anna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------LUIS LORA,
Plaintiff,

ORDER
16-CV-3917 (MKB)

v.
S.J. COSTA & SON TRUCKING, INC.,
Defendant.
--------------------------------------------------------------S.J. COSTA & SON TRUCKING, INC.,
Third-Party Plaintiff,
v.
KREAMER FEED, INC. and BJE POULTRY,
Third-Party Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Luis Lora filed the above-captioned action against Defendant S.J. Costa & Son
Trucking, Inc. (“S.J. Costa”) on January 26, 2015 in the Supreme Court of the State of New
York, Kings County. (Notice of Removal ¶ 1, Docket Entry No. 1.) On February 17, 2016, S.J.
Costa commenced a third-party action by naming Kreamer Feed., Inc. (“Kreamer”) and BJE
Poultry (“BJE”) as Third-Party Defendants. (Notice of Removal ¶ 5.) On July 14, 2016,
Kreamer and BJE filed a notice removing the action from the Supreme Court of the State of New
York to this Court. (Notice of Removal.) Plaintiff moves to remand the case back to the
Supreme Court of New York, Kings County. (Pl. Mot. to Remand (“Pl. Mot.”), Docket Entry

No. 5.) For the reasons set forth below, the Court remands the case to the Supreme Court of the
State of New York, Kings County.
I.

Background
Plaintiff seeks monetary damages for personal injuries that he allegedly suffered as the

result of a fall from a tractor trailer while unloading chicken crates on January 7, 2012. (Notice
of Removal ¶ 1.) Plaintiff commenced this action on January 26, 2015, in the Supreme Court of
the State of New York, Kings County, alleging that the accident and resulting injuries were
caused by S.J. Costa’s negligence. (Id.) On February 17, 2016, S.J. Costa commenced a
third-party action, alleging that negligence by Kreamer and BJE caused Plaintiff’s injuries. (Id.
¶ 5.) On or about May 23, 2016, S.J. Costa served a copy of Plaintiff’s Bill of Particulars on
Kreamer and BJE. (Id. ¶ 16.) On July 14, 2016, Kreamer and BJE filed a notice removing the
action from the Supreme Court of the State of New York to this Court. (Id. at 1.)
II. Discussion
a.

Standard of review

A defendant may remove a civil action brought in state court to a federal court of original
jurisdiction. 28 U.S.C. § 1441(a). “[I]n light of the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the independence of state governments,
federal courts construe the removal statute narrowly, resolving any doubts against removability.”
Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quoting Lupo v. Human
Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)). The party asserting jurisdiction bears the
burden of proving that jurisdiction and procedural requirements are met. Cal. Pub. Employees’
Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004) (“Where, as here, jurisdiction is
asserted by a defendant in a removal petition, it follows that the defendant has the burden of

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establishing that removal is proper.”); see Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291,
296 (2d Cir. 2000). A notice of removal must allege a proper basis for removal under 28 U.S.C.
§§ 1441–1445. See In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124
(2d Cir. 2007) (“In determining whether jurisdiction is proper, we look only to the jurisdictional
facts alleged in the Notices of Removal.”); Bankhead v. New York, No. 13-CV-3377, 2013 WL
6145776, at *1 (E.D.N.Y. Nov. 21, 2013) (“An effective petition for the removal of a state action
to federal court must allege a proper basis for the removal under sections 1441 through 1445 of
Title 28.” (quoting Negron v. New York, No. 02-CV-1688, 2002 WL 1268001, at *1 (E.D.N.Y.
Apr. 1, 2002))).
b.

Plaintiff’s motion

Plaintiff argues that the action should be remanded back to state court because (1) the
third-party defendants lack standing to remove an action to federal court and (2) the removal of
this action was not timely. (Pl. Mot. 1–8.)
“Neither the Supreme Court nor the Second Circuit has determined whether the right to
remove a case to federal court set forth in 28 U.S.C. § 1441 extends to third-party defendants.”
Arrow Fin. Servs., LLC v. Massil, No. 08-CV-437, 2009 WL 348553, at *3 (E.D.N.Y. Feb. 11,
2009); see Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F. Supp. 2d 357, 373 (S.D.N.Y. 2006) (explaining
that the “debate over the question of third-party removal has raged for years”). The
“overwhelming weight of authority in this Circuit is that third party defendants do not qualify as
‘defendants’ for purposes of removal.” Sessing v. Gateway Ctr. Properties, LLC,
No. 09-CV-2485, 2009 WL 1918162, at *1 (E.D.N.Y. June 30, 2009) (citing Arrow, 2009 WL
348553, at *3); see Certain Underwriters at Lloyd’s London v. Art Crating, Inc.,
No. 12-CV-5078, 2014 WL 123488, at *16 (E.D.N.Y. Jan. 10, 2014) (stating that the “clear

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majority of federal courts has held that third-party defendants are not ‘defendants’ within the
meaning of 28 U.S.C. § 1441(a)” (collecting cases)); Arrow, 2009 WL 348553, at *3 (stating that
“[t]he Southern and Eastern Districts of New York have unanimously found that 28 U.S.C.
§ 1441 does not permit removal by third party defendants” (collecting cases)). Some courts have
explained that this view is consistent with the instruction to narrowly construe the removal
statute, by interpreting the statutory phrase “the defendant or the defendants,” as used in
§ 1441(a), “to refer to defendants in the traditional sense of parties against whom the plaintiff
asserts claim.” Tyco Int’l, 422 F. Supp. 2d at 373 (finding that the “majority view is the
superior one” in part because it is “more faithful to the Supreme Court’s instruction . . . to
strictly construe the removal statute” (quoting First Nat’l Bank of Pulaski v. Curry, 301 F.3d
456, 462–63 (6th Cir. 2002)); see Casul v. Modell’s NY II, Inc., No. 04-CV-7204, 2004 WL
2202581, at *2 (S.D.N.Y. Sept. 30, 2004) (“The plain text of the statute does not permit removal
by a person other than a defendant and courts have routinely held that a third-party defendant
may not remove under section 1441(a).”).
The Court agrees that third-party defendants are outside a narrow reading of “defendant”
as used in section 1441(a). In opposition to Plaintiff’s motion to remand, Kreamer and BJE
argue that subject matter jurisdiction in this case is not “predicated upon the third-party
complaint” because subject matter jurisdiction exists over the main action. (Third-Party Defs.
Decl. in Opp’n 2, Docket Entry No. 7.) Kreamer and BJE offer no legal support for this
argument. The Court’s jurisdiction over the underlying action between Plaintiff and S.J. Costa is
not at issue; rather, the issue is whether Kreamer and BJE had a proper basis for removal of this
action under the language of section 1441(a).

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Kreamer and BJE further contest that it would be “entirely inequitable” for the Court to
“disallow” Kreamer and BJE to remove the action because S.J. Costa’s maintains that they are
entirely liable for Plaintiff’s claim, valued at $10,000,000. (See id.) Kreamer and BJE have
presented no arguments in support of their contention that it would be inequitable to not allow
them to remove this action when S.J. Costa asserts that they are responsible. (See id.)
Because the Court finds that Kreamer and BJE did not have a right under section 1441(a)
to remove the action, the Court remands this case to state court.1
III. Conclusion
For the foregoing reasons, the case is remanded to the Supreme Court of the State of New
York, Kings County.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 7, 2016
Brooklyn, New York

1

Because the Court concludes that the action was improperly removed, it declines to
reach Plaintiff’s second argument regarding the timeliness of the removal.
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