Tomczyk v. Tomczyk
MEMORANDUM & ORDER of Remand to Supreme Court of New York, County of Suffolk, Index No. 33914/13; For the reasons set forth above, the Complaint is REMANDED to the State Court pursuant to 28 U.S.C. § 1447(c). The Court certifies pursuant to 2 8 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore, should Defendant seek leave to appeal in forma pauperis, such status is DENIED for the purpose of any appeal. The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 6/29/2017. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
Kieth Tomczyk, pro se
21 Soloff Road
Massapequa, NY 11758
SEYBERT, District Judge:
In or about 2013, Jessica Tomczyk (“Plaintiff”) commenced
(“Defendant”) in the Supreme Court of New York, County of Suffolk
Integrated Domestic Violence (IDV) Part 15 (“State Court”).1
June 16, 2017, Defendant, acting pro se, filed a Notice of Removal
removing the action to this Court pursuant to, inter alia, 28
jurisdiction because Constitutional questions are involved.
Notice of Removal, Docket Entry 1, at ¶¶ 1-2.) Defendant paid this
Court’s filing fee at the time he filed the Notice of Removal.
Notwithstanding Defendant’s payment of the filing fee, this action
Although Defendant has not filed a copy of the State Court
complaint with his Notice of Removal, it appears from his
submissions that Plaintiff is pursuing a contested divorce action
together with a child support enforcement action against
Defendant in State Court under Index No. 33914/13.
is REMANDED to the State Court pursuant to 28 U.S.C. § 1447(c) for
the reasons that follow.2
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 defendants, to the district court of the United States for the
district and division embracing the place where such action is
28 U.S.C. § 1441(a).
In addition, 28 U.S.C. § 1446(a)
sets forth the procedure for removal to be followed:
A defendant or defendants desiring to remove any civil
action from a State court shall file in the district
court of the United States . . . a notice of removal
signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure containing a short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.
28 U.S.C. § 1446(a) (emphasis added).
Subsection (b) makes clear
[t]he notice of removal of a civil action or proceeding
shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief . .
. or within 30 days after the service of the summons upon
the defendant if such initial pleasing has then been
filed in court and is not required to be served on the
defendant, whichever is shorter.
28 U.S.C. § 1446(b). “[S]tatutory procedures for removal are to be
On June 27, 2017 the Supreme Court filed a letter motion
requesting that the Court schedule a pre-motion conference in
anticipation of filing a motion to remand this action to the
state court. (See Docket Entry 4.) Given that the action is
hereby remanded, the letter motion request is DENIED as MOOT.
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) (internal
quotation marks and citations omitted); accord In re Facebook,
Inc., IPO Sec. & Derivative Litig., 922 F. Supp. 2d 475, 480
“[T]he burden is on the removing party to prove
that is has met the requirements for removal.”
Ulysse v. AAR
Aircraft Component Servs., 841 F. Supp. 2d 659, 666 (E.D.N.Y. 2012)
(internal quotation marks and citation omitted).
Defendant seeks to remove the State Court action to this
Court approximately four (4) years after it was filed in State
Although Defendant does not indicate when he received the
initial State Court pleading or when he was served with the
maintained by the New York State Office of Court Administration
reflects that Defendant appeared through counsel in the State Court
action at least as of March 20, 2014.
state.ny.us/webcivil (last visited on June 19, 2017).)
Defendant cannot show that his Notice of Removal was timely filed
in accordance with the thirty (30) day time period set forth in
Moreover, although Defendant has filed a fifteen (15)
page Notice of Removal, with an additional eight-four (84) pages of
exhibits and a twenty (20) page Memorandum in Support, (see Docket
Entries 1, 1-2, 1-3, 1-4, and 1-5), he has failed to attach a copy
of “all process, pleadings, and orders” served upon him in the
State Court as is required by Section 1446(a).
action is REMANDED to the State Court pursuant to 28 U.S.C.
See, e.g., Allfour v. Bono, 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, 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). In any event, under the domestic
relations exception to this Courts subject matter jurisdiction,
“divorce, alimony, and child custody decrees remain outside federal
Marshall v. Marshall, 547 U.S. 293, 308,
126 S. Ct. 1735, 1746, 164 L. Ed. 2d 480, 495 (2006) (internal
quotation marks and citation omitted).
Thus, notwithstanding the
procedural defects with Defendant’s removal of the State Court
action, jurisdiction over the Complaint is likely barred by the
domestic relations exception to the jurisdiction of the federal
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 Suffolk-Integrated Domestic Violence (IDV) Part 15,
pursuant to 28 U.S.C. § 1447(c); and, (2) 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.
REMANDED to the State Court pursuant to 28 U.S.C. § 1447(c).
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,
should Defendant seek leave to appeal in forma pauperis, such
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
The Clerk of the Court is directed to mark this case
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
29 , 2017
Central Islip, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?