Allfour v. Bono et al
Filing
12
ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached Order Adopting Report and Recommendation, having conducted a review of the full record and the applicable law, and having reviewed the R & R de novo, the Court adopts the findings and recommendations contained in the R & R. The action is hereby remanded to the Supreme Court of the State of New York, Suffolk County, pursuant to 28 U.S.C. § 1447(c). The Clerk of the Court is directed to close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/22/2011. (Nagiel, Svetlana)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-1619 (JFB) (ARL)
_____________________
ALLFOUR,
Plaintiff,
VERSUS
SALVATORE BONO, ET. AL.,
Defendants.
___________________
ORDER ADOPTING REPORT AND RECOMMENDATION
June 22, 2011
__________________
JOSEPH F. BIANCO, District Judge:
Before the Court is a Report and
Recommendation (“R & R”) from the
Honorable Arlene R. Lindsay, United States
Magistrate Judge, as well as defendant’s
objections to the R & R. The R & R
recommends sua sponte that the Court remand
this case because defendant has not proffered
a valid reason for removal and also because he
failed to follow proper removal procedures.
For the reasons set forth below, the Court
adopts the thorough and well-reasoned R & R
of Judge Lindsay because defendant has failed
to demonstrate that federal question
jurisdiction exists in this case.
I. PROCEDURAL HISTORY
Plaintiff Allfour dba Albarano Holding
Corporation (“plaintiff” or “Allfour”)
commenced this action on November 17,
2010, in New York State Supreme Court,
Suffolk County against defendant Salvatore
Bono (“defendant” or “Bono”) and two Doe
defendants. On March 28, 2011, defendant
filed a notice of removal in the United States
District Court for the Eastern District of New
York.
On April 18, 2011, counsel for plaintiff
filed a letter with the Court, requesting leave
to file a motion to dismiss pursuant to Federal
Rule of Civil Procedure 8 based on the “prolix
and incomprehensible” nature of defendant’s
Third Party Complaint. (Docket 4.) In an
state court, the burden falls on the removing
party to establish its right to a federal forum
by competent proof.” In re Methyl Tertiary
Butyl Ether (“MTBE”) Products Liab. Litig.,
No. 1:00-CV-1898, MDL 1358 (SAS), M 2188, 2006 WL 1004725, at *2 (S.D.N.Y. Apr.
17, 2006) (internal quotation marks omitted).
Further, “[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.”
Lupo v. Human Affairs Int’l, Inc., 28 F.3d
269, 274 (2d Cir. 1994); accord Somlyo v. J.
Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46
(2d Cir. 1991); Fed. Ins. Co. v. Tyco Int’l Ltd.,
422 F. Supp. 2d 357, 367 (S.D.N.Y. 2006).
Order dated May 2, 2011, this Court referred
plaintiff’s motion to Magistrate Judge Lindsay
for a report and recommendation, which was
issued on May 5, 2011. Defendant filed his
objections on May 23, 2011.
II. STANDARD OF REVIEW
A district judge may accept, reject, or
modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F. Supp. 1330, 1345
(S.D.N.Y. 1994); Walker v. Hood, 679 F.
Supp. 372, 374 (S.D.N.Y. 1988). As to those
portions of a report to which no “specific
written objection” is made, the Court may
accept the findings contained therein, as long
as the factual and legal bases supporting the
findings are not clearly erroneous. See
Santana v. United States, 476 F. Supp. 2d
300, 302 (S.D.N.Y. 2007); Greene v. WCI
Holdings Corp., 956 F. Supp. 509, 513
(S.D.N.Y. 1997) (citing Thomas v. Arn, 474
U.S. 140, 149 (1985)). Where the report is
dispositive of the case, the Court reviews de
novo the portions to which objections have
been filed. See Fed. R. Civ. P. 72(b);
Williams v. Beemiller, Inc., 527 F.3d 259, 264
(2d Cir. 2008) (noting that a report
recommending remand was dispositive).
Section 1447(c) provides, in relevant part,
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
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.” 28 U.S.C. § 1447(c). As such,
“any party or the court sua sponte, at any
stage of the proceedings, may raise the
question of whether the court has subject
matter jurisdiction.”
United Food &
Commercial Workers Union, Local 919,
AFL-CIO v. CenterMark Prop. Meriden
Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994)
(quoting Manway Constr. Co. v. Hous. Auth.
of Hartford, 711 F.2d 501, 503 (2d Cir. 1983))
(internal quotation marks omitted).
III. DISCUSSION
A. Legal Standard
“Generally, a defendant in an action
pending in state court may remove that case to
federal court only if it could have originally
been commenced in federal court on either the
basis of federal question jurisdiction or
diversity jurisdiction.” Citibank, N.A. v.
Swiatkoski, 395 F. Supp. 2d 5, 8 (E.D.N.Y.
2005) (citing 28 U.S.C. § 1441(a)). “When a
party challenges the removal of an action from
B. Federal Question Jurisdiction
Defendant objects to both reasons for
remand provided in the R & R. Namely,
defendant contends that his Notice of
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“well-pleaded complaint rule” exist, such
exceptions are narrowly limited, on the basis
that “state and federal laws have many
overlapping or even identical remedies” and
because courts generally “respect a plaintiff’s
choice between state and federal forums.” In
re “Agent Orange” Product Liab. Litig., 996
F.2d at 1430-31. The complete preemption
doctrine, an “independent corollary” to the
well-pleaded complaint rule, Caterpillar Inc.,
482 U.S. at 393, can “convert[ ] an ordinary
state common law complaint into one stating
a federal claim[,]” Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 65 (1987), but no such
preemption is argued to apply to this case.
Removal raised sufficient issues of federal
law and that he did comply with procedures
for removal. (Bono Objections at 5, 7.) The
Court thus reviews the R & R under the de
novo standard of review and adopts the R &
R’s conclusion that there is no federal
question jurisdiction in this case.
A case may be filed in federal court
“‘when a federal question is presented on the
face of the plaintiff’s properly pleaded
complaint.’” Vera v. Saks & Co., 335 F.3d
109, 113 (2d Cir. 2003) (quoting Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987));
see 28 U.S.C. § 1331. A well-pleaded
complaint may raise a federal question either
by (1) asserting a federal cause of action, or
(2) presenting state claims that “‘necessarily
raise a stated federal issue, actually disputed
and substantial, which a federal forum may
entertain without disturbing any
congressionally approved balance of federal
and state judicial responsibilities.’” Broder v.
Cablevision Sys. Corp., 418 F.3d 187, 194 (2d
Cir. 2005) (quoting Grable & Sons Metal
Products, Inc. v. Darue Eng’g & Mfg., 545
U.S. 308, 314 (2005)). “Ordinarily, a plaintiff
is master of his complaint and may elect to
proceed solely under state law even if federal
remedies are available.” In re “Agent
Orange” Product Liab. Litig., 996 F.2d 1425,
1430 (2d Cir. 1993) (citing Caterpillar, 482
U.S. at 392), overruled in part on other
grounds by Syngenta Crop Protection, Inc. v.
Henson, 537 U.S. 28, 31 (2002).
Accordingly, “[a] defendant cannot, merely by
injecting a federal question into an action that
asserts what is plainly a state-law claim,
transform the action into one arising under
federal law, thereby selecting the forum in
which the claim shall be litigated.”
Caterpillar Inc., 482 U.S. at 399 (emphasis in
original). Moreover, the Second Circuit has
acknowledged that, while exceptions to the
None of defendant’s grounds for federal
question jurisdiction stem from the complaint
filed by plaintiff in state court. It is apparent
that the complaint (which was annexed to
defendant’s objections and was received from
state court) seeks to recover on a mortgage
note signed by defendant.1 (Bono Objections
Ex. 5.) The Notice of Removal asserts that
the action arises under various federal
statutes. (Notice of Removal ¶ 4.) These
causes of action, however, are clearly based
on defendant’s counterclaims and Third Party
Complaint.
(See Verified Answer,
Affirmative Defenses and Counterclaim ¶¶ 87,
117, 122, 165; Third Party Complaint ¶ 18.)
It is well-established that counterclaims
1
Defendant asserts that plaintiff’s state court
complaint is “fraudulent and artfully pleaded.”
(Bono Objections at 13, 21.) Defendant’s
argument is unavailing. It is clear that plaintiff’s
sole cause of action is to recover for a debt that
defendant allegedly owes. To the extent defendant
is arguing that he was a victim of fraud when he
signed the mortgage note, or that the mortgage
note itself is a false document, defendant can make
those arguments in state court as they do not
provide grounds for federal question jurisdiction.
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IV. CONCLUSION
cannot be the basis for the exercise of federal
jurisdiction. See, e.g., Holmes Grp., Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S.
826, 830-31 (2002); MTI Residential Servs. v.
Alston, No. 07-CV-2002 (SJF)(ARL), 2007
WL 1695161, at *3 (E.D.N.Y. May 31, 2007)
(“The federal nature of respondents’ defense
and counterclaim is not sufficient to confer
jurisdiction on this Court for purposes of
removal.”). Similarly, claims made in a Third
Party Complaint cannot provide a basis for
federal jurisdiction. See Harris v. G.C.
Services Corp., 651 F. Supp. 1417, 1418-19
(S.D.N.Y. 1987) (“The absence of federal
jurisdiction over the main claim is not
remedied by the commencement of an
ancillary third-party claim as to which federal
jurisdiction would exist if asserted in an
independent action. Any other holding would
simply encourage parties to make improvident
removals and then cure them by impleading
the United States Government.” (citation
omitted).) Thus, this Court adopts the
conclusion of the R & R that defendant has
failed to provide a valid reason for removal
based on federal question jurisdiction.
Thus, having conducted a review of the
full record and the applicable law, and having
reviewed the R & R de novo, the Court adopts
the findings and recommendations contained
in the R & R. The action is hereby remanded
to the Supreme Court of the State of New
York, Suffolk County, pursuant to 28 U.S.C.
§ 1447(c). The Clerk of the Court is directed
to close the case.
SO ORDERED.
____________________
JOSEPH F. BIANCO
United States District Judge
Dated: June 22, 2011
Central Islip, New York
***
The attorney for plaintiff is William D.
Wexler, Esq., 816 Deer Park Avenue, North
Babylon, New York 11703. Defendant is
proceeding pro se.
The Court need not reach the alternate
ground provided in the R & R for
remand–namely, that defendant’s Notice of
Removal is procedurally defective. In sum,
the Court concludes that federal law is not
implicated by plaintiff’s claim, which is
grounded purely in state law. In short, there is
simply no basis for federal question
jurisdiction in this case.2
2
Defendant does not allege that diversity
jurisdiction exists in this case. Nor does it appear
that there would be diversity jurisdiction in this
case. Furthermore, to the extent defendant is
requesting leave to file an amended Third Party
Complaint (Bono Objection at 5), this Court does
not have jurisdiction to address this request.
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