Town of Southold v. Go Green Sanitation, Inc. et al
MEMORANDUM OF DECISION AND ORDER - For the foregoing reasons outlining this Courts lack of subject matter jurisdiction, it is hereby ORDERED that this action be remanded to the New York State Supreme Court, County of Suffolk; and it is further ORDERED that the Clerk of the Court is directed to close the case. Ordered by Judge Arthur D. Spatt on 6/12/2013. C/M. (Coleman, Laurie)
6/12/2013 12:37 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TOWN OF SOUTHOLD,
DECISION AND ORDER
GO GREEN SANITATION, INC. AND
FRANK FISHER, INDIVIDUALLY,
Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP
Attorneys for the Plaintiff
456 Griffing Ave.
Riverhead, NY 11901
Frank Isler, Esq., of Counsel
Meyer, Suozzi, English & Klein, P.C.
Attorneys for the Defendants
990 Stewart Ave.
Garden City, NY 11530
Robert Angelillo, Esq., of Counsel
SPATT, District Judge.
On or about July 5, 2012, the Plaintiff Town of Southold (the “Plaintiff” or the “Town”)
commenced an action in the Supreme Court of the State of New York, County of Suffolk against
the Defendants Go Green Sanitation, Inc. (“Go Green”) and Frank Fisher (“Fisher” and
collectively the “Defendants”), seeking an injunction shutting down Go Green’s recycling and
refuse collection business in the Town. Subsequently, on August 2, 2012, the Defendants
removed the action, uncontested, to this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
Presently before the court is the Defendants’ motion to amend their counterclaims and to
join a new party. However, in reviewing that motion it has come to the Court’s attention that it
lacks subject matter jurisdiction over this action. As such and for the reasons that follow, the
Court dismisses this action for lack of subject matter jurisdiction and remands this case back to
the Supreme Court of the State of New York, County of Suffolk.
Unless otherwise noted, the following facts are derived from the Notice of Removal and
the exhibits attached thereto.
The Plaintiff is a municipal corporation organized and existing under New York State
law, situated in and with its principal place of business in the county of Suffolk, New York. The
Defendant Go Green is a New York Corporation with its principal place of business in the Town
of Southampton, New York. The individual Defendant Fisher is the President of Go Green and a
citizen of the State of New York residing in Riverhead, New York. At the time of the
Complaint, Go Green operated a commercial carting operation, collecting and transporting refuse
and recyclables in the Town of Southold.
The Town’s Code requires any vehicle engaged in the commercial disposal of any
material to obtain a permit from the Town. A permit may be revoked by the Town Board after
notice and a hearing. The Code further prohibits collection of refuse from a residence if it is
mixed with recyclables or for a carter to mix recyclables with refuse. In addition, all residential
garbage placed curbside for collection must be in a Town garbage bag (“yellow bags”).
Collection of refuse not in a Town garbage bag is made unlawful by the Town Code.
As previously stated, on or about July 5, 2012 the Plaintiff commenced this action in the
Supreme Court of the State of New York, County of Suffolk, seeking injunctive relief to shut
down the Defendants’ carting operations in the Town.
The Plaintiff alleged that Go Green operated its carting business in the Town without a
permit. The Plaintiff further alleged that Go Green violated the Town’s code provisions that
required separate handling of refuse and recyclables and also those provisions which mandated
the use of yellow garbage bags. The Town further alleged that Go Green’s “illegal business
operations” caused harm to Go Green’s competitors in the Town, who were “in compliance with
the code and h[eld] commercial carter permits.” (Notice of Removal Ex. A, ¶ 16, ECF No. 1-1).
Moreover, the Town complained of diminished recycling volume entering the Town’s Solid
Waste Facility and dramatically reduced revenue from yellow bag sales from the time Go Green
began operating in the Town.
In their Answer dated August 2, 2012, the Defendants claimed that Go Green was in fact
issued a carter permit by the Town of Southold but that the permit was never delivered to them
and was later revoked by the Town without notice or a hearing. They further substantially
denied all of the Plaintiff’s allegations.
With their Answer, the Defendants also filed five counterclaims. First, they asserted that
the revocation of the carter permit without notice and a hearing was in violation of the Town
Code as well as the due process clause and the civil rights guaranteed by the United States
Constitution and Federal Law. Second, they claimed that the revocation without notice and a
hearing violated the Defendants’ property rights under the Constitution and Federal Law. As a
Third and Fourth Counterclaim, they alleged that the revocation and attempts to shut down Go
Green’s business in the Town were done in order to benefit Go Green’s competitors. They
therefore allege that the Town engaged in an unreasonable restraint of trade under the Sherman
Act, 15 U.S.C. § 1 et seq., and under New York State law. Finally, they contended that the
Town’s requirement that residents purchase yellow bags from the Town for all their garbage
constituted a “user fee” for the Town Transfer Station but was imposed even on those who did
not use the Town Transfer Station. They therefore urged that this law constituted a tax beyond
the Town’s authority under the Town Law and was thus a violation of the Constitution and
On August 2, 2012, the Defendants filed a timely Notice of Removal, thereby removing
the action to this Court pursuant to the provisions of 28 U.S.C. §§ 1441 and 1446. They argued
that this Court could exercise jurisdiction pursuant to 28 U.S.C. § 1441 on the basis of the federal
questions of due process, civil rights, and restraint of trade that arose from the Town’s actions in
revoking Go Green’s permit. The Plaintiff did not seek remand or otherwise challenge the
removal and the thirty days afforded to them to do so have since expired. However, remand
based on lack of subject matter jurisdiction may be brought to the Court’s attention and pursued
at any time. 28 U.S.C. § 1447(c).
Previously, on July 23, 2012, the parties stipulated to a 120-day moratorium with regard
to enforcement of the yellow bag law. The stipulation also allowed Go Green to continue
operating in the Town through November 23, 2012. The Defendants moved for a Temporary
Restraining Order to extend that moratorium and the court held a hearing to consider that motion
on November 15, 2012. The Court denied Defendants’ motion and declined to issue the
At the same hearing on November 15, 2012, the Court expressed doubt about the
Defendants’ standing to challenge the Town’s yellow bag law as an illegal user fee or tax in its
fifth counterclaim. Therefore, the Defendants now seek leave of the Court to join Jose Perez
(“Perez”), a resident of the Town of Southold and to add as a sixth counterclaim the same
challenge to the yellow bag law but with Perez as the named counterclaim plaintiff.
The Plaintiff opposes these amendments as futile, claiming that the yellow bag program
is neither a user fee nor a tax. Rather, they insist that the law is a valid exercise of the Town’s
State-Approved Local Solid Waste Management Program in furtherance of the Town’s mandate
from the State to reduce waste going into landfills or incinerators by requiring as much recycling
and reuse as possible. In reply, the Defendants cite authority purportedly supporting their
contention that a fee, even when part of a town sanitation program, can be characterized as an
Even where the parties do not adequately raise the issue, the district court can inquire sua
sponte as to whether subject matter jurisdiction exists. See Durant, Nichols, Houston, Hodgson,
& Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (“If subject matter jurisdiction is
lacking and no party has called the matter to the court’s attention, the court has the duty to
dismiss the action sua sponte.”); Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (“[W]e have
an independent obligation to consider the presence or absence of subject matter jurisdiction sua
sponte.”); Poindexter v. Nash, 333 F.3d 372, 383 (2d Cir. 2003) ([I]f the parties do not call a
[subject matter] jurisdictional defect to the attention of the court, the court has the duty to raise it
sua sponte.”); Stewart v. Altwood, 834 F. Supp. 2d 171, 177 (W.D.N.Y. 2012) (“Regardless of
whether the issue is raised by the parties, a district court is required to inquire into and determine
whether federal subject matter jurisdiction in a removed action exists.”); Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”). “[L]ack of subject matter jurisdiction cannot be waived.” In re Stock
Exchanges Options Trading Antitrust Litig., 317 F.3d 134, 151 (2d Cir. 2003). See also New
York v. Shinecock Indian Nation, 686 F.3d 133, 138 (2d Cir. 2012) (“[Subject matter]
[j]urisdiction cannot be created by the consent of the parties.”). This Court will now proceed to
review whether the requisite subject matter exists for it to exercise jurisdiction over this removed
A. Legal Standard for Removal
A cause of action that was initially filed in state court may be removed by a defendant
where “the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a).
Accordingly, a prerequisite for removal jurisdiction is that the court has the power to exercise
original jurisdiction. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425,
96 L. Ed. 2d 318 (1987) (“Only state-court actions that could have been filed in federal court
may be removed to federal court by the defendant.”)
Pursuant to 28 U.S.C. § 1331, the district courts have original jurisdiction over all civil
actions arising under the United States Constitution and the laws and treaties of the United
States. The Section 1331 federal question determination requires a limited inquiry, looking only
at the Plaintiff’s original cause of action to ascertain whether it includes a federal question while
ignoring any and all answers, defenses and counterclaims. Holmes Group, Inc. v. Vornado Air
Circulation Systems, Inc., 535 U.S. 826, 831-32, 122 S. Ct. 1889, 153 L. Ed. 2d 13 (2002)
(refusing to consider a patent law counterclaim in determining whether federal question
jurisdiction existed); Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1, 10, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983) (“[A] defendant may not remove a case
to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal
law.”) (emphasis in original); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.
Ct. 42, 53 L. Ed. 126 (1908) (holding that subject-matter jurisdiction must exist in the plaintiff’s
original cause of action, regardless of the likelihood that a federal question will arise in the
course of litigation).
This “well-pleaded complaint rule” has been adopted and applied by the Second Circuit.
Fleet Bank, Nat’l Ass’n v. Burke, 160 F.3d 883, 886 (2d Cir. 1998) (“[The well-pleaded
complaint] rule requires a complaint invoking federal question jurisdiction to assert the federal
question as part of the plaintiff’s claim and precludes invoking federal question jurisdiction
merely to anticipate a federal defense.”) (internal citations omitted); Hernandez v. Conriv Realty
Assocs., 116 F.3d 35, 38 (2d Cir. 1997) (“[A] case may be filed in federal court only if a federal
question appears on the face of the plaintiff’s ‘well-pleaded-complaint.’”).
The rule governs in cases of removal as well. Caterpillar, 482 U.S. at 392 (“The presence
or absence of federal-question jurisdiction [in a removed case] is governed by the ‘well-pleaded
complaint rule,’ which provides that federal jurisdiction exists only when a federal question is
present on the face of the plaintiff’s properly pleaded complaint.”) (citing Gully v. First Nat’l
Bank, 299 U.S. 109, 112 –13, 57 S. Ct. 96, 81 L. Ed. 70 (1936) (Cardozo, J.)).
Accordingly, in a case of removal based on federal question jurisdiction, the relevant
inquiry is whether the plaintiff would have been entitled to file its complaint originally in federal
court rather than state court. Specifically, the court must evaluate whether a plaintiff’s original
cause of action arises under the United States Constitution or Federal Law.
Moreover, when considering the propriety of removal, the court must bear in mind its
limited jurisdiction and the significant federalism concerns implicated upon removal. Town of
Moreau v. N.Y. State Dept. of Envtl. Conservation, No. 96-CV-983, 1997 WL 243258, at *1
(N.D.N.Y. May 5, 1997) (citing and quoting Prod. Stamping v. Md. Cas., 829 F. Supp. 1074,
1075 (E.D.Wis.1993)) (“There are several well-established principles governing the propriety of
removal petitions under Section 1446, which the court must keep in mind . . . .” ) (internal
quotation marks, citation and alterations omitted); In re NASDAQ Market Makers Antitrust
Litig., 929 F. Supp. 174, 178 (S.D.N.Y. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 109, 61 S. Ct. 868, 85 L. Ed. 1214 (1941)) (“Due regard for the rightful independence
of state governments, which should actuate federal courts, requires that they scrupulously
confine their own jurisdiction to the precise limits which the statute has defined.”). See also
State of New York v. Lutheran Center for the Aging, Inc., 957 F. Supp. 393, 397 (E.D.N.Y.
1997) (“Removal statutes are to be strictly construed.”). Thus, “all doubts should be resolved in
favor of remand.” Leslie v. BancTec Serv. Corp., 928 F. Supp. 341, 347 (S.D.N.Y. 1996)
(internal quotation marks and citations omitted).
B. As to Whether Plaintiff’s Original Cause of Action Arises Under the United States
Constitution or Federal Law.
1. The Well-Pleaded Complaint Rule
The Defendants claim that subject matter jurisdiction exists because a complete and wellpleaded statement of the Plaintiff’s claim would include the fact that Go Green’s license to
operate in the Town was revoked without notice and a hearing. This failure, they posit, gives
rise to the federal due process and civil rights questions enumerated in their Answer with
Counterclaims. (Notice of Removal ¶¶ 16–20.) The Court disagrees.
Regardless of whether a well-pleaded complaint should appear as the Defendant contends
it should, the Plaintiff’s original cause of action does not and would not arise under the
Constitution, laws or treaties of the United States. The Plaintiff’s claim is a simple state law
cause of action – seeking an injunction against local actors for violating the Town Code. Any
federal question is only properly raised by the Defendants in their Answer including
Counterclaims. The alleged unconstitutionality and federal illegality of the Plaintiff’s behavior
has no place in a well-pleaded complaint seeking injunctive relief against the Defendant. See,
e.g., Mottley, 211 U.S. at 153 (explaining that a well-pleaded complaint does not “go into any
matter of defenses which the defendants might possibly set up” even to “show that a federal
question might or probably would arise in the course of the trial of the case.”) (quoting Boston &
Mo. Consol. Copper & Silver Mining Co. v. Mont. Ore Purchasing Co., 188 U. S. 632, 638, 23
S. Ct. 434, 47 L. ed. 626 (1903) (Peckham, J.)). See also Rivet v. Regions Bank of La., 522 U.S.
470, 475, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998) (“A defense is not part of a plaintiff's
properly pleaded statement of his or her claim.”); Briarpatch Ltd. v. Phoenix Pictures, Inc., 373
F.3d 296, 303 (2d Cir. 2004) (“The claims established by the well-pleaded complaint must
necessarily be determined from the plaintiff's statement of his or her own claim, not including
statements raised in anticipation or avoidance of possible defenses that may be interposed.”);
Fed. R. Civ. P. 8(a) (requiring a “short and plain” statement of the claim, presumably without
background information relating to the plaintiff’s actions which might form a basis for the
Thus, while the well-pleaded complaint that the Defendants envision would give rise to
and set the stage for the federal claims in the Counterclaims in the Defendants’ Answer, those
federal questions are not part of the original cause of action. Accordingly, they are not
considered when evaluating subject matter jurisdiction. See, e.g., Mottley, 211 U.S. at 152
(dismissing the action for lack of subject matter jurisdiction while ignoring the inevitable federal
question presented by the case, namely, a challenge to the constitutionality of the statute that
formed the basis of the complaint, because such a challenge would only properly be raised in the
Answer). See also Sullivan v. American Airlines, 424 F.3d 267, 271 (2d Cir. 2005) (citing
Rivet, 522 U.S. at 475) (“The well-pleaded complaint rule mandates that in assessing subjectmatter jurisdiction, a federal court must disregard allegations that a well-pleaded complaint
would not include – e.g., allegations about anticipated defenses.”).
The Second Circuit has consistently dismissed cases removed to its federal district courts
where subject matter jurisdiction could not be justified based on the plaintiff’s original wellpleaded complaint. See, e.g., New York v. Shinecock Indian Nation, 686 F.3d 133, 135-36 (2d
Cir. 2012); Sullivan, 424 F.3d at 271 (explaining that the court only considers the well-pleaded
allegations in the complaint when determining if subject matter jurisdiction exists on the basis of
a federal question). For instance, in Shinecock Indian Nation, the State of New York (“the
State”) sued the Shinecock Indian Nation (“the Nation”) in New York State Supreme Court. 686
F.3d at 135–36. The State sought to prevent the Nation from continuing to build a casino
without first complying with State law. Id. at 136. The State’s complaint alleged and relied on
its conclusion that federal law did not authorize the Nation to construct the casino in violation of
state and local law. Id. The Nation removed the case to federal court based on the federal
questions presented in the State’s complaint and the District Court denied the State’s motion to
However, the Second Circuit applied the well-pleaded complaint rule and instructed that
the case be remanded back to State court. Id. at 138-39, 142. The Second Circuit explained that
“[b]ecause the complaint’s references to federal law only anticipate and refute the [Nation]’s
defenses, they do not give rise to federal question jurisdiction.” Id. at 139. District courts in this
circuit have followed suit. See, e.g., Vill. of Baxter Estates v. Rosen, No. 12 CV 2851, 2012 WL
3779412(MKB), at *2 (E.D.N.Y. Aug. 30, 2012) (explaining that the well-pleaded complaint
rule required remanding the case since no federal question appeared on the face of the
complaint); In re Lehman Bros. Sec. & Erisa Litig., No. 09 MD 02017(LAK), 2012 WL 983561,
at *1, *5 (S.D.N.Y. Mar. 22, 2012) (applying the well-pleaded complaint rule and remanding the
case, sua sponte, to state court); Spidella v. Donnelly, No. CV 06-3463(SJ)(JO), 2006 WL
2064981, at *1 (E.D.N.Y. July 24, 2006) (“The well-pleaded complaint doctrine requires a
remand in this case.”); Studebaker-Worthington Leasing Corp. v. Michael Rachlin & Co., 357 F.
Supp. 2d 529, 533, 536 (E.D.N.Y. 2004) (applying the well-pleaded complaint rule and
remanding the case to state court because no federal question was presented in pleadings until
the defendant’s counterclaim). See also County of Nassau v. New York, 724 F. Supp. 2d 295,
301 – 02 (E.D.N.Y. 2010) (applying the well-pleaded complaint rule and explaining that “federal
jurisdiction does not exist simply because a state law claim may implicate a federal issue”).
2. The Artful-Pleading Exception
A corollary to the well-pleaded complaint rule is the artful-pleading doctrine. Rivet, 522
U.S. at 471 (“As a corollary to the well-pleaded defense rule, a plaintiff may not defeat removal
by omitting to plead necessary federal questions. If the plaintiff thus ‘artfully pleads’ a claim, a
court may uphold removal even though no federal question appears on the face of the
complaint.”) (internal quotation marks and citations omitted); Sullivan, 424 F.3d at 271 (“The
artful-pleading doctrine, a corollary to the well-pleaded-complaint rule, rests on the principle that
a plaintiff may not defeat federal subject-matter jurisdiction by ‘artfully pleading’ his complaint
as if it arises under state law where the plaintiff's suit is, in essence, based on federal law.”).
Under the artful-pleading doctrine corollary to the well-pleaded complaint rule, the court, in
determining subject-matter jurisdiction, may look beyond the complaint and also consider
improperly omitted claims and allegations. See, e.g., In re Facebook, Inc., IPO Sec.and
Derivative Litig., No. 12 Civ. 6439, 2013 WL 525191, at *10 (S.D.N.Y. Feb. 13, 2013) (denying
the plaintiff’s motion to remand the case under the well-pleaded complaint rule because the case,
although pleaded under state law, involved significant questions of federal law).
However, this exception is applied only in limited circumstances. DeCarlo v. Archie
Comic Publ’ns, 11 F. App’x 26, 28 (2d Cir. 2001) (quoting Travelers Indem. Co. v. Sarkisian,
794 F.2d 754, 758 (2d Cir.1986)) (“[I]n certain limited circumstances a plaintiff may not defeat
removal by clothing a federal claim in state garb, or, as it is said, by use of ‘artful pleading[.]’”)
(internal quotation marks omitted). The district courts have identified only two such limited
circumstances for application of the artful-pleading doctrine: cases of preemption and cases
where the Plaintiff chooses state court to avoid the consequences of prior federal litigation.
Greenfield v. Nat’l Westminster Bank USA, 846 F. Supp. 302, 305 (S.D.N.Y. 1994) (“Cases in
which federal courts have permitted removal based on ‘artful pleading’ fall into two categories:
(1) where preemption has eliminated the legal foundation of plaintiff's state law causes of action;
and (2) where plaintiff chooses a state forum in order to evade the consequences of prior federal
litigation.”) (internal citations omitted). See also Bill Wolf Petro. v. Vill. of Port Washington N.,
489 F. Supp. 2d 203, 207 (E.D.N.Y. 2007) (citing and quoting Greenfield, 846 F. Supp. at 305).
This case presents neither a question of pre-emption nor does it appear that the Plaintiff chose
State court to avoid any consequences of prior federal litigation. Consequently, the artfulpleading exception to the well-pleaded complaint rule is unavailable.
3. The Substantial Federal Question Exception
Another exception to the well-pleaded complaint rule exists where relief depends on
resolution of substantial questions of federal law. See, e.g., Grable & Sons Metal Prods., Inc. v.
Darue Eng’g & Mfg., 545 U.S. 308, 312, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005) (“a federal
court ought to be able to hear claims recognized under state law that nonetheless turn on
substantial questions of federal law”). However, this case does not necessarily require a court to
reach a federal question.
In Grable, the Supreme Court formulated a test for the substantial federal question
exception to the well-pleaded complaint rule. In this regard, “the question is, does a state-law
claim 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.” Id. at 314. “The Supreme Court has described this basis for
federal subject matter jurisdiction as ‘special,’ ‘small’ and ‘slim.’” County of Nassau, 724 F.
Supp. 2d at 302 (citing Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699,
701, 126 S. Ct. 2121, 165 L. Ed. 2d 131 (2006)). The present case does not raise an inevitable
question of federal law.
Where the court does not necessarily have to reach a federal question, such as where
certain facts, if proven, would allow for resolution without deciding federal questions, the case
does not “turn on substantial questions of federal law,” Id. at 312, and the well-pleaded
complaint rule governs as usual. In Shinecock Indian Nation, the court found that the claims
asserted did not necessarily raise a federal issue because scenarios existed where the case could
have been resolved without reaching the federal question. 686 F.3d at 140. “For example, if the
[Nation] were to have established that their construction of the casino complied with state and
local law, the court could have resolved the case without reaching the federal issues.” Id.
Because the federal question was not inevitable from the face of the complaint, the “substantial
federal question exception” did not apply. Id. at 140-41. Thus, the Second Circuit has made
clear that the substantial federal question exception is to be construed very narrowly and applied
only in cases where a substantial federal question is truly inevitable.
The present case does not inevitably turn on resolution of the federal questions presented.
For example, if this Court would have found that the Town violated its own code in revoking the
Defendants’ permit without a hearing and that the yellow bag law was beyond the Town’s power
under its own laws, there would be no need to reach the federal questions presented in this case.
Similar to and even more so than in Shinecock Indian Nation, this case does not inevitably turn
on substantial questions of federal law. Therefore, the well-pleaded complaint rule governs and
federal question jurisdiction must be apparent from the face of the Plaintiff’s well-pleaded
complaint. That is not the case and the Court finds that this Court lacks subject matter
jurisdiction to hear this case.
To put matters simply, the Plaintiff’s original Complaint, whether as filed or the wellpleaded version envisioned by the Defendants in their Notice of Removal, does not arise under
the Constitution, laws or treaties of the United States. It presents no federal question and does
not inevitably turn on a federal issue. For those reasons, this Court lacks original jurisdiction
under the provisions of 28 U.S.C. § 1331. Without original jurisdiction, this Court cannot
exercise removal jurisdiction in accordance with 28 U.S.C. § 1441. Therefore, this case is
hereby remanded to Supreme Court of the State of New York pursuant to 28 U.S.C. § 1447(c).
For the foregoing reasons outlining this Court’s lack of subject matter jurisdiction, it is
ORDERED that this action be remanded to the New York State Supreme Court, County
of Suffolk; and it is further
ORDERED that the Clerk of the Court is directed to close the case.
Dated: Central Islip, New York
June 12, 2013
____/s/ Arthur D.Spatt____
ARTHUR D. SPATT
United States District Judge
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