Iwachiw et al v. City of New York et al

Filing 3

MEMORANDUM & ORDER: SO ORDERED this action is remanded to the state court pursuant to 42 U.S.C. § 1447(c). Remand to the state court is also appropriate because Iwachiw, who has a long history of frivolous litigation in this Court, has been enjo ined from bringing any future proceedings in the Eastern District of New York without prior permission of this Court[,] see Iwachiw v. New York State Dept. of Motor Vehicles, et al., 02-CV-6699(ADS)(WDW), Document No. 30 at 4, and he did not seek, an d was never granted, permission to bring this action in this Court prior to filing his Notice of Removal. Accordingly, this action is remanded to the state court pursuant to 42 U.S.C. § 1447(c). The Clerk of the Court shall: (1) mail a certified copy of this Order to the clerk of the Supreme Court of the State of New York, County of New York pursuant to 42 U.S.C. § 1447(c); (2) close this case; and, (3) pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon all parties as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record such service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiffs and certified copy mailed to NY Supreme Court. Ordered by Judge Sandra J. Feuerstein on 6/3/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WALTER IWACHIW, on behalf of himself and
JOSEFA IWACHIW, deceased,
Plaintiff,
-againstCITY OF NEW YORK, MAYOR MICHAEL
BLOOMBERG, NYC FDNY, NYC EMS, NYC
DEPARTMENT OF SANITATION, NYC
DEPARTMENT OF TRANSPORTATION, NYC
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, NYC DEPARTMENT OF PARKS
AND RECREATION, NYPD, NYC OFFICE OF
EMERGENCY MANAGEMENT, NYC DEPT.
OF SOCIAL SERVICES, NYC DEPT. OF AGING,
SUNNYSIDE COMMUNITY SERVICES, INC.,
IRA GREENBERG, MTA, MT. SINAI ELMHURST,
MT. SINAI ELMHURST FACILITY PRACTICE,
ASSEMBLYWOMAN CATHERINE NOLAN,
PAUL KERSON, MARC LEAVITT, NYC HHC,
ELMHURST HOSPITAL, VISITING NURSE SERVICE,
JOE DOE, MARY DOE, JOHN DOE, PAUL DOE,
ACORPORATE DOE, BCORPORATE DOE, GARY
DOE, DR. AL DOE, DR. BEN DOE, NURSE ANN DOE,
DR. SUNIL MEHRA, MD., NYS DOH, DR. SHAH,

MEMORANDUM & ORDER
15-CV-2987(SJF)(SIL)

FILED 
CLERK 

6/3/2015 1:09 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Defendants.
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FEUERSTEIN, District Judge:
On or about January 2, 2014, plaintiff Walter Iwachiw (“Walter” or “plaintiff”)
commenced this action, purportedly on behalf of himself and Josefa Iwachiw (“Josefa”), who is
alleged to have died on January 1, 2011, against defendants City of New York (“NYC” or “the
City”), Mayor Michael Bloomberg, the “NYC FDNY,” the “NYC EMS,” the NYC Department
of Sanitation, the NYC Department of Transportation, the NYC Department of Environmental
Protection, the NYC Department of Parks and Recreation, the “NYPD,” the NYC Office of

Emergency Management, the “NYC Dept. of Social Services,” the “NYC Dept. of Aging,”
Sunnyside Community Services, Inc., Ira Greenberg, the “MTA,” Mt. Sinai Elmhurst, Mt. Sinai
Elmhurst Facility Practice, Assemblywoman Catherine Nolan, Paul Kerson, Marc Leavitt, “NYC
HHC,” Elmhurst Hospital, Visiting Nurse Service, “Joe Doe,” “Mary Doe,” “John Doe,” “Paul
Doe,” “Acorporate Doe,” “Bcorporate Doe,” “Gary Doe,” “Dr. Al Doe,” “Dr. Ben Doe,” “Nurse
Ann Doe,” Dr. Sunil Mehra, MD, the “NYS DOH,” and Dr. Shah (collectively, “defendants”) in
the Supreme Court of the State of New York, County of New York (“the state court”), seeking,
inter alia, damages in the amount of “$11.4 billion\trillion dollars with interest” for defendants’
alleged participation in the wrongful death of Josefa. (See Docket Entry 1-2.) On May 14, 2015,
plaintiff, acting pro se, filed: (1) a Notice of Removal removing the action to this Court pursuant
to 28 U.S.C. § 1441(a) on the basis that this Court has original jurisdiction under 28 U.S.C. §
1331 because it concerns, inter alia, Medicare fraud; and (2) an application to proceed in forma
pauperis. Since plaintiff’s financial status, as set forth in his application to proceed in forma
pauperis, qualifies him to commence this action in this Court without prepayment of the filing
fee, see 28 U.S.C. §§ 1914 and 1915(a), the application to proceed in forma pauperis is granted.
However, for the reasons set forth below, the action is remanded to the state court pursuant to 28
U.S.C. § 1447(c).
DISCUSSION
1.

The Removal Statute

Pursuant to 28 U.S.C. § 1441(a), “ . . . any civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
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embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added).
Similarly, 28 U.S.C. § 1446(a) sets forth the procedure for removal to be followed by “[a]
defendant or defendants desiring to remove any civil action from a State court” to a federal court.
“[S]tatutory procedures for removal are to be strictly construed, . . . because the federal courts are
courts of limited jurisdiction and because removal of a case implicates significant federalism
concerns.” Frontier Park Co., LLC v. Contreras, 35 F. Supp. 3d 264, 267 (E.D.N.Y. 2014)
(quotations and citations omitted); accord In re Facebook, Inc., IPO Sec. & Derivative Litig., 922
F. Supp. 2d 475, 480 (S.D.N.Y. 2013). “[T]he burden is on the removing party to prove that it
has met the requirements for removal.” Ulysse v. AAR Aircraft Component Servs., 841 F. Supp.
2d 659, 666 (E.D.N.Y. 2012) (quotations and citation omitted).
Iwachiw, who is a plaintiff in this case, seeks to remove his action to this Court more than
one year after it was filed in the state court. However, it is axiomatic that only defendants, not
plaintiffs, may remove an action from state court to federal court. See Gehm v. New York Life
Ins. Co., 992 F.Supp. 209, 210 (E.D.N.Y. 1998) (citing cases); see also Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 105, 61 S.Ct. 868. 85 L. Ed. 2d 1214 (1941) (holding that the
removal privilege is limited to defendants only). Thus, regardless of whether plaintiff’s notice of
removal invokes a federal question, the fact of the matter remains that plaintiff filed his
complaint under state law and in state court and there is no basis in law for plaintiff’s attempt to
remove this action to federal court more than a year later. Accordingly, this action is remanded
to the state court pursuant to 42 U.S.C. § 1447(c). See, e.g. Allfour v. Bono, No. 11-cv-1619,
2011 WL 2470742, at * 1 (E.D.N.Y, May 5, 2011), report and recommendation adopted by 2011
WL 2470734 (E.D.N.Y. June 22, 2011) (holding that in this circuit, a procedural defect, by itself,
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would authorize a sua sponte remand within thirty [30] days after the filing of the notice of
removal); Cassara v. Ralston, 832 F. Supp. 752, 753-54 (S.D.N.Y. 1993) (holding that 28 U.S.C.
§ 1447(c) authorizes a district court to sua sponte remand actions to state court for defects in
removal procedure within thirty [30] days after the filing of the notice of removal).
Remand to the state court is also appropriate because Iwachiw, who has a long history of
frivolous litigation in this Court, has been “enjoined from bringing any future proceedings in the
Eastern District of New York without prior permission of this Court[,]” see Iwachiw v. New
York State Dept. of Motor Vehicles, et al., 02-CV-6699(ADS)(WDW), Document No. 30 at 4,
and he did not seek, and was never granted, permission to bring this action in this Court prior to
filing his Notice of Removal. Accordingly, this action is remanded to the state court pursuant to
42 U.S.C. § 1447(c). The Clerk of the Court shall: (1) mail a certified copy of this Order to the
clerk of the Supreme Court of the State of New York, County of New York pursuant to 42
U.S.C. § 1447(c); (2) close this case; and, (3) pursuant to Rule 77(d)(1) of the Federal Rules of
Civil Procedure, serve notice of entry of this Order upon all parties as provided in Rule 5(b) of
the Federal Rules of Civil Procedure and record such service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).
/s/
Sandra J. Feuerstein
United States District Judge

SO ORDERED.

Dated:

June 3, 2015
Central Islip, New York
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