Nasir v. HD Supply Facilities Maintenance, Ltd.
Order of Remand to State Court -- to New York State Supreme Court Queens County, Index Number 712108/2018 - For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER OF REMAND, this case is remanded to New York State Supreme Court, Queens Cou nty, under Index No. 712108/2018, for further proceedings. Defendant HD Supply Facilities Maintenance, LTD. is directed to serve a copy of this Electronic Order and the Attached Written Summary Order to co-defendant Supply Facilities Maintenance HD, LTD. within five days of the date of this Order and immediately thereafter file proof of such service with the Court. SO ORDERED by Judge Dora Lizette Irizarry on 11/17/2021. (Irizarry, Dora)
Case 1:19-cv-00416-DLI-VMS Document 26 Filed 11/17/21 Page 1 of 4 PageID #: 185
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SUMMARY ORDER OF REMAND
19-cv-00416 (DLI) (VMS)
HD SUPPLY FACILITIES MAINTENANCE,
LTD., and SUPPLY FACILITIES
MAINTENANCE HD, LTD.,
DORA L. IRIZARRY, United States District Judge:
On January 22, 2019, HD Supply Facilities Maintenance, LTD. (“Defendant”) removed
this action from New York State Supreme Court, Queens County to this Court. See, Notice of
Removal (“Notice”), Dkt. Entry No. 1. For the reasons set forth below, this case is remanded to
state court sua sponte.
On August 6, 2018, Tarek Nasir (“Plaintiff”) filed a verified complaint in state court,
alleging a negligence claim against the Defendant and Supply Facilities Maintenance HD, LTD.
(“Supply Facilities”) for an alleged injury suffered by Plaintiff on October 29, 2015. Notice,
Exhibit A. The summons and complaint were served on both defendants on August 13, 2018 at
the office of the Secretary of State of New York. Notice, Exhibit B. Defendant filed its answer
on or about August 24, 2018. Notice, Exhibit C. Supply Facilities did not answer the complaint
or otherwise appear in this action. Notice, at ¶ 3. Supply Facilities was incorporated in the State
of New York on May 22, 2017. Notice, Exhibit D.
On January 22, 2019, Defendant removed the action to this Court, invoking this Court’s
diversity jurisdiction pursuant to 28 U.S.C. § 1332. Notice, at ¶ 8. To date, Plaintiff has not filed
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a motion for remand. For the reasons set forth below, the Court finds that it lacks subject matter
jurisdiction. Consequently, this case is remanded to state court for further proceedings.
The Court first must address whether it may remand this case to the state court sua sponte,
absent a motion from Plaintiff. The relevant statute, 28 U.S.C. § 1447(c), states in pertinent part:
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 under section 1446(a). If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.
Id. The Second Circuit has construed this statute to authorize a district court, at any time, to
remand a case sua sponte upon a finding that it lacks subject matter jurisdiction. See, Mitskovski
v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131, 133-34 (2d Cir. 2006) (citing Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). The Second Circuit has cautioned
district courts to “construe the removal statute narrowly, resolving any doubts against
removability.” Lupo v. Hum. Aff. Int’l Inc., 28 F.3d 269, 274 (2d Cir. 1994).
As an initial matter, this Court lacks subject matter jurisdiction because there is a lack of
complete diversity. Diversity jurisdiction exists when all plaintiffs are citizens of states diverse
from those of all defendants. Pennsylvania Pub. Sch. Employees’ Ret. Sys. v. Morgan Stanley &
Co., Inc., 772 F.3d 111, 117-18 (2d Cir. 2014) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 553 (2005)). The party asserting diversity jurisdiction has the burden to prove the
Pennsylvania Pub. Sch. Employees’ Ret. Sys., 772 F.3d at 118.
“Where, as here,
jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the
burden of establishing that removal is proper.” United Food & Commercial Workers Union v.
CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994); See also, 14A
Charles A. Wright & Arthur R. Miller § 3721, at 209–10 (1990) (“[d]efendant always has the
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burden of establishing that removal is proper”).
A limited company, such as Supply Facilities, is treated like a corporation for purposes of
establishing diversity and “. . . is considered a citizen of the state in which it is incorporated and
the state of its principal place of business.” Knowyourmeme.com Network v. Nizri, 2021 WL
3855490, at *8 (S.D.N.Y. Aug. 30, 2021), report and recommendation adopted, 2021 WL
4441523 (S.D.N.Y. Sept. 28, 2021) (internal quotation marks and citation omitted). Here, Supply
Facilities was incorporated in New York State, and, as such, is a citizen of New York. Plaintiff
also is a citizen of New York. Accordingly, there is no complete diversity among the parties.
Defendant’s contention that Supply Facilities was not incorporated or even in existence at
the time of the events in question and, thus, improperly joined, is unavailing. See, Notice, at ¶ 5.
“It has long been the case that [diversity] jurisdiction of the court depends upon the state of things
at the time of the action brought.” Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570
(2004) (citation omitted). Thus, in order to invoke diversity jurisdiction, there must be complete
diversity at the time the action was filed. Id. It is clear that there was no complete diversity among
the parties at the time that the complaint was filed in state court and at the time it was removed to
this Court. Accordingly, remand is required.
Even if there had been complete diversity among the parties (which there is not), remand
is required because Supplies Facilities never consented to the removal of the action to this Court.
A party seeking to remove a case based on diversity jurisdiction shall file the notice of removal
“within 30 days after the receipt by the defendant of the initial pleading or summons, whichever
period is shorter.” Taylor v. Medtronic, Inc., 15 F.4th 148, 150 (2d Cir. 2021) (citing 28 U.S.C. §
1446(b)(1)) (internal quotation marks omitted).
“And within that thirty-day window, all
defendants who have been properly joined and served must join in or consent to the removal of
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the action the so-called rule of unanimity.” Id. (citing 28 U.S.C. § 1446 (b)(2)(A)) (emphasis
added). “The unanimity requirement serves the interests of [all parties, including] the courts[.]”
Id. (citation omitted). In Taylor, the issue was “whether the removal statute allow[ed] a defendant
to consent to removal after the thirty-day deadline for removal lapses.” Id. There, the Second
Circuit held that the removal statute’s language is mandatory and, as such, courts cannot “carve
out exceptions to the removal statute’s clear directive,” thereby prohibiting a defendant from filing
a notice of removal without fulfilling the unanimous consent requirement. Id. at *4. Defendant’s
claim that Supply Facilities was joined improperly does not explain why Supplies Facilities did
not consent to the removal nor does it serve as a defense to the unanimous consent requirement.
Both defendants were served with the summons and complaint at the same time. It was incumbent
upon Defendant to obtain the consent of Supply Facilities before removing the case to this Court
from state court. The Second Circuit made it clear in Taylor that the removal statute is “a clear
statutory command from Congress that all defendants must consent to removal within thirty days
of service” and this Court is not at liberty to carve out an exception to those requirements. Id. at
152. The failure to comply with the unanimity requirement is fatal to the removal of this action
and remand is required.
For the reasons set forth above, this case is remanded to New York State Supreme Court,
Queens County, under Index No. 712108/2018, for further proceedings.
Dated: Brooklyn, New York
November 17, 2021
DORA L. IRIZARRY
United States District Judge
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