29 Flatbush Avenue Associates, LLC v. Cain

Filing 6

MEMORANDUM & ORDER: Ileen Cain's 2 request to proceed in forma pauperis is granted for the purpose of this decision. For the reasons discussed in the attached Memorandum and Order, the Court remands this action to the State co urt. The Clerk of Court is directed to immediately send a certified copy of this Memorandum and Order to the Clerk of the State Court, note service on the docket, and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) tha t any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED by Judge Margo K. Brodie, on 11/27/2017. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Ileen Cain.) Case No.: 82114/2017. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------29 FLATBUSH AVENUE ASSOCIATES, LLC,
Plaintiff,
v.

NOT FOR PUBLICATION
MEMORANDUM & ORDER
17-CV-6173 (MKB)

ILEEN CAIN,
Defendant.
-------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On October 20, 2017, Defendant Ileen Cain filed a notice of removal for an eviction
proceeding pending in the Supreme Court of the State of New York, Kings County (“State
Court”). (Notice of Removal, Docket Entry No. 1.) On October 20, 2017, Cain also filed a
motion for leave to proceed in forma pauperis. (Mot. for Leave, Docket Entry No. 2.) Cain’s
request to proceed in forma pauperis is granted for the purpose of this decision. Based on the
petition and the exhibits annexed thereto, the Court concludes that removal is improper and
remands this action to the State Court. 28 U.S.C. §§ 1446, 1447.
I.

Background
On August 28, 2017, 29 Flatbush Avenue Associates, LLC (the “Landlord”), commenced

a holdover proceeding in State Court under Index Number LT-82114-17 (“Holdover
Proceeding”). (Notice of Removal at 19.) 1 By notice of removal, Cain removed the Holdover
Proceeding to this Court. According to the court documents in the Holdover Proceeding, the

1

Because the notice of removal and the exhibits attached thereto are not consecutively
paginated, the Court refers to the page numbers assigned by the Electronic Case Filing (“ECF”)
system.

Landlord terminated Cain’s lease effective August 17, 2017. (Id. at 22.) The lease appears to
have been terminated because Cain was allegedly engaging in objectionable conduct and
committing or permitting a nuisance in the building. (Id. at 27–33.) Although unclear, Cain
appears to allege violations of the Fair Housing Act 2 and her procedural due process rights under
the Fourteenth Amendment.
On October 21, 2017, after filing the notice of removal with this Court, Cain filed a
motion in State Court requesting that it “dismiss” the Landlord’s complaint in light of her notice
to remove the case to federal court. (Notice of Pet’r Filing Mot. to Dismiss L&T Holdover,
Docket Entry No. 4.) On November 14, 2017, the Landlord served on Cain a motion to remand
the matter back to the State Court. (Cover Letter Accompanying Motion, Docket Entry No. 5.) 3
II. Discussion
a. Standard of review
Under 28 U.S.C. § 1441, removal is permitted for any civil action, commenced in a state
court, over which a federal court has original jurisdiction. 28 U.S.C. § 1441(a); Bounds v. Pine
Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010). Where, as here, jurisdiction is
asserted by a defendant in a removal petition, the defendant bears the burden of establishing that
removal is proper. See Cal. Pub. Emp. Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir.
2004) (citations omitted).
It is appropriate for the Court to determine, sua sponte, whether it has subject matter
jurisdiction and to remand the case to state court, if necessary. Mehlenbacher v. Akzo Nobel Salt,
Inc., 216 F.3d 291, 295 (2d Cir. 2000). Lack of subject matter jurisdiction cannot be waived and
2

The Court notes that Cain fails to plead any factual allegations in support of a Fair
Housing Act claim.
3

The Landlord did not file the motion to remand with the Court.
2

may be raised at any time by a party or by the court sua sponte. See Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they
must raise and decide jurisdictional questions that the parties either overlook or elect not to
press.” (citation omitted)).
b. The removal of this action was untimely
Pursuant to 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days
after the defendant has received a copy of the complaint or another document “from which it
may first be ascertained” that the action is removable. 28 U.S.C. § 1446(b). The Holdover
Proceeding was commenced in State Court on August 28, 2017, and the initial court hearing was
held on September 8, 2017. (Notice of Pet. Holdover at 17, annexed to Notice of Removal as
Ex. C.) Cain filed the notice of removal with the Court on October 20, 2017. Even assuming
that Cain could not have ascertained any basis for removal until the initial court hearing, the
notice of removal would still be untimely because Cain filed it more than thirty days after the
hearing occurred. See Matter of Proceeding for Support under Family Court Act, No. 17-CV6030, 2017 WL 5195228, at *1–2 (E.D.N.Y. Nov. 9, 2017) (finding “no basis in law” to remove
a child support enforcement action one year after it was commenced (citation omitted)); see also
Frontier Park Co., LLC v. Contreras, 35 F. Supp. 3d 264, 267–68 (E.D.N.Y. 2014) (remanding
holdover proceeding to state court for failure to remove within the required thirty-day period).
c.

The Court lacks subject matter jurisdiction

Even if the notice of removal was timely filed, the Court nevertheless lacks subject
matter jurisdiction over Cain’s claims. The law is well settled that the landlord-tenant
relationship is fundamentally a matter of state law, and federal courts lack subject matter
jurisdiction over state residential landlord-tenant matters. See Force v. Crowell, No. 16-CV3

6062, 2017 WL 4402451, at *5 (E.D.N.Y. Sept. 30, 2017) (district courts lack subject matter
jurisdiction over eviction claims (citing Haynie v. N.Y.C. Hous. Auth., No. 14-CV-5633, 2015
WL 502229, at *2 (E.D.N.Y. Feb. 5, 2015))); Ellis v. Sabeini Mitivach Assocs., No. 14-CV-4441,
2014 WL 5305994, at *2 (E.D.N.Y. Oct. 15, 2014) (same).
III. Conclusion
For the foregoing reasons, the Court remands the action to State Court. The Clerk of
Court is directed to immediately send a certified copy of this Memorandum and Order to the
Clerk of the State Court, note service on the docket, and close this case. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and
therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: November 27, 2017
Brooklyn, New York

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