Commissioner of Social Services v. Clarke

Filing 7

MEMORANDUM AND ORDER of Remand to Family Court of the State of New York, County of Suffolk, Case Number F-18124-16. Accordingly, the Clerk of the Court shall: (1) MAIL a certified copy of this Order to the clerk of the Family Court of the State of New York, County of Suffolk, pursuant to 42 U.S.C. § 1447(c); (2) CLOSE this case; and, (3) MAIL a copy of this Memorandum and Order to Respondent. So Ordered by Judge Joanna Seybert on 11/9/2017. C/ECF; C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
In the Matter of a Proceeding
for Support under the Family
Court Act
COMMISSIONER OF SOCIAL SERVICES,
Petitioner/Assignee on behalf of
TAMMY BOERTLEIN, ASSIGNOR,
Petitioner,
-against-

MEMORANDUM & ORDER
17-CV-6030 (JS)(AYS)

ROGER W. CLARKE, JR.,
Respondent.
----------------------------------X
APPEARANCES
For Petitioner:
No appearance.
For Respondent:

Roger W. Clarke, pro se
1 Sommerset Drive
Yaphank, NY 11980

SEYBERT, District Judge:
In or about October 31, 2016, the Commissioner of Social
Services, on behalf of Tammy Boertlein, Mother (“Petitioner”),
commenced this action against respondent Roger W. Clarke Jr.,
Father (“Respondent”) in the Family Court of the State of New York,
County of Suffolk (“State Court”).1

(See Pet. for Support, Ex. B,

Docket Entry 1-2.) On October 16, 2017, Respondent, acting pro se,
filed a Notice of Removal removing the action to this Court
pursuant to, inter alia, 28 U.S.C. §§ 1443 and 1446 on the basis
1

Although
his Notice
Petitioner
Respondent

Respondent has not filed a copy of the Complaint with
of Removal, it appears from his submission that
is pursing a child support enforcement action against
in state court under Index No. F-18124-16.

that this Court has original jurisdiction under 28 U.S.C. § 1331
because there are “questions arising under the Constitution, Laws,
and Treaties of the United States, including but not limited to the
Bill of Rights and the Eleventh Amendment, the original Thirteenth
Amendment, and Fourteenth Amendment to the U.S. Constitution, the
International Covenant on Civil and Political Rights, and the
Universal Declaration of Human Rights, with Reservations” involved.
(See Pet. for Removal, Docket Entry 1, at 1.)

Respondent paid the

Court’s filing fee. For the reasons set forth below, the action is
REMANDED to the State Court pursuant to 28 U.S.C. § 1447(c).
DISCUSSION
I.

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 embracing the place where such action is
pending.” 28 U.S.C. § 1441(a) (emphasis added).)

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 and
containing a short and plain statement of the
grounds for removal, together with a copy of
all process, pleadings, and other papers
2

served upon such defendant or defendants in
such action.
28 U.S.C. § 1446(a) (emphasis added).

Subsection (b) makes clear

that
[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 process 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 pleading 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
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
(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)
(internal quotation marks and citation omitted).
Here, Respondent seeks to remove this child support
enforcement action to this Court almost one (1) year after it was

3

filed

in

the

Respondent’s

State

Notice

Court.2
of

Thus,

Removal

regardless

invokes

this

of

whether

Court’s

federal

question subject matter jurisdiction,3 there is no basis in law for
Respondent’s attempt to remove this action to federal court after
the statutory thirty-day time period has expired. Edelman v. Page,
535 F. Supp. 2d 290, 292 (D. Conn. 2008) (finding that the
“statutory time limit is mandatory. . . [and] absent a finding of
waiver or estoppel, federal courts rigorously enforce the statute’s
thirty-day filing requirement.”) (internal quotation marks and
citation omitted; alterations in original).
Moreover,

although

Respondent’s

Notice

of

Removal,

including exhibits, is comprised of eighty-three pages, he has

2

Because Respondent did not file a short and plain statement of
the grounds for removal, together with a copy of all process,
pleadings, and other papers served upon him in such action, it is
difficult for the Court to determine when the State Court action
was commenced. However, Respondent has included, as “Exhibit B”
to his Notice of Removal, a copy of a Support Petition filed in
State Court against him by Petitioner on October 31, 2016. (See
Ex. B to the Pet. for Removal.)
3

Notwithstanding Respondent’s assertion that this Court’s
federal question subject matter jurisdiction is invoked, given
that the underlying case appears to be a child support
enforcement action, the domestic relations exception to the
jurisdiction of the federal courts would likely divest this Court
of jurisdiction. See Marshall v. Marshall, 547 U.S. 293, 308,
126 S. Ct. 1735, 1746, 164 L. Ed. 2d 480, 495 (2006) (Under the
domestic relations exception, “divorce, alimony, and child
custody decrees” remain outside federal jurisdictional bounds)
(citation omitted); McArthur v. Bell, 788 F. Supp. 706, 709
(E.D.N.Y. 1992) (finding that the domestic relations applied
because the plaintiff’s claims directly related to child support
modification proceedings).
4

failed to attach a copy of the “pleadings[] and orders” served upon
him in the State Court case as is required by the removal statute.
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,
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); see also Burr v. Toyota
Motor Credit Co., 478 F. Supp. 2d 432, 436 (S.D.N.Y. 2006) (“[I]n
light

of

the

jurisdiction,

congressional
as

well

as

intent
the

to

restrict

importance

of

federal

court

preserving

the

independence of state governments, federal courts construe the
removal

statute

narrowly,

resolving

any

doubts

against

removability.”) (internal quotation marks and citation omitted).
Accordingly, the Clerk of the Court shall: (1) MAIL a
certified copy of this Order to the clerk of the Family Court of
the State of New York, County of Suffolk, pursuant to 42 U.S.C. §
1447(c); (2) CLOSE this case; and, (3) MAIL a copy of this
Memorandum and Order to Respondent.
5

Although Respondent paid the filing fee in this Court,
the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that, should
Respondent seek leave to appeal in forma pauperis, 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).

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

November
9 , 2017
Central Islip, New York

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