Suffolk County Department of Social Services v. Roger W Clarke Jr

Filing 8

MEMORANDUM & ORDER TO SHOW CAUSE: 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 Family Court of the State of New York, County of Suffolk, pursuant to 42 U.S.C. § 1447(c) and (2) MAIL a copy of this Memorandum and Order to Respondent. Given the remand, Respondent's motions for disqualification are DENIED as they are now MOOT. RESPONDENT IS ORDERED TO SHOW CAUSE BY FILING AN AFFIDAVIT WITHIN THIRTY (30) DAYS WHY AN ORDER BARRING HIM FROM FILING ANY FURTHER NOTICE OF REMOVAL SEEKING TO REMOVE THE CHILD SUPPORT ENFORCEMENT ACTION TO THIS COURT OR ANY NEW COMPLAINT CONCERNING THE SAME SUBJECT MATTER AS WAS SET FO RTH IN THE NOTICES OF REMOVAL SHOULD NOT ENTERED. Respondent is advised that failure to file an affidavit in accordance with this Order to Show Cause will lead to the entry of an order barring Respondent from filing any new notice of removal or compl aint relating to the child support enforcement action and the Court will direct the Clerk of the Court to return to Respondent, without filing, any such action. Respondent is also cautioned that, should he file another notice of removal or complaint relating to the child support enforcement action, it is within the Court's authority to consider imposing sanctions upon him pursuant to Federal Rule of Civil Procedure 11. Although Respondent paid the filing fee in this Court, the Court certifi es 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). The Clerk of the Court is DIRECTED to mail a copy of this Memorandum and Order to Show Cause to Respondent at his last known address and to file proof of such service with the Court. Ordered by Judge Joanna Seybert on 12/11/2017. (CM to pro se respondent) (Certified CM to Clerk of Family Court of the State of NY, County of Suffolk) (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
In the Matter of a Proceeding
for Support under the Family
Court Act

FILED 
CLERK 

12/11/2017 4:35 pm

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

COMMISSIONER OF SOCIAL SERVICES,
Petitioner/Assignee on behalf of
TAMMY BOERTLEIN, ASSIGNOR,
Petitioner,
-againstROGER W. CLARKE, JR.,

MEMORANDUM & ORDER TO
SHOW CAUSE
17-CV-6741 (JS)(AYS)

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
1.)

(See Pet., Docket Entry 1, at

On November 17, 2017, Respondent, acting pro se, filed a

Notice of Removal removing the action to this Court pursuant to,

1

Although Respondent has not filed a copy of the Complaint with
his Notice of Removal, Petitioner is pursing a child support
enforcement action against Respondent in state court under Index
No. F-18124-16. (See Oct. 18, 2017 Order of Support by Default,
Pet. Ex. B, Docket Entry 1-2.)

inter

alia,

28

U.S.C.

§§

1443

(“Section

1443”)

and

1446(b)

(“Section 1446(b)”) on the basis 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.
Pet. at 1.)2

(See

Respondent also claims “that there are also criminal

violations of 18 U.S.C. §§ 241 and 242.

(Pet. at 2.)

According to

Respondent, “the state family court system may already be, or has
become, a fully wanton criminal enterprise with the officers and
professionals in daily power thereof absolutely and manifestly
abusing process, law, litigants, and even incidental parties . . .
.”

(Pet. at 7, ¶ 19.)
Further,

Respondent

asserts

that

removal

is

proper

pursuant to 28 U.S.C. § 1443 because he, a state court litigant,
2

In an apparent attempt to stay a child support enforcement
hearing scheduled for October 18, 2017 in the Family Court, on
October 16, 2017, Respondent, acting pro se, filed a Notice of
Removal (assigned Docket Number 17-CV-6030(JS)(AYS)) seeking to
remove the same child support enforcement action to this Court.
By Memorandum and Order dated November 9, 2017, the action was
remanded to the Family Court of the State of New York, Suffolk
County, pursuant to 42 U.S.C. § 1447(c). (See Pet. at 4, ¶ 9.)
Respondent did not appear in Family Court on October 18, 2017 and
an Order of Support by Default was entered against him. (See
Pet. Ex. B, Docket Entry 1-2.)
2

has been “denied or cannot enforce in the courts of such State a
right under any law providing for the equal rights of citizens of
the United States, or of all persons within the jurisdiction
thereof.”

(Pet. at 2, (quoting 28 U.S.C. § 1443(1)).)
Respondent

has

also

filed

two

motions

seeking

disqualification of the undersigned “and all other Judges of this
Court who have likewise previously acted as a New York state court
judge at any time in domestic relations/child custody cases.” (See
Docket Entries 1-14 and 6.)
fee.

Respondent paid the Court’s filing

For the reasons set forth below, and for the same reasons

that the Court made clear in its Memorandum and Order remanding the
Petition under Docket Number 17-CV-6030(JS)(AYS), the instant
action is REMANDED to the State Court pursuant to 28 U.S.C.
§ 1447(c).

Given the remand, the motions for disqualification are

DENIED AS MOOT.
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
3

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
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)
4

(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
filed

in

the

Respondent’s

State

Notice

Court.3
of

Thus,

Removal

invokes

regardless
this

of

whether

Court’s

federal

question subject matter jurisdiction,4 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

3

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
Pet. Ex. B.)
4

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).
5

citation omitted; alterations in original).

Thus, notwithstanding

Respondent’s assertion his constitutional rights have been or are
being violated in the state court matter, there is no basis to
remove a child support enforcement action simply by alleging that
the state court has violated his federal rights.

See Grohs v.

Grohs, 17-CV-1605, 2017 WL 5171845, *3 (D. Ct. Nov. 8, 2017) (“Ms.
Grohs cannot remove a family court custody battle to this court
simply by alleging that the state court has violated her civil
rights.”)

Indeed, “‘whether a case . . . is removable or not . .

. is to be determined by the allegations of the complaint. . . .
[I]f the case is not then removable it cannot be made removable by
any

statement

in

the

petition

pleadings by the defendant.’”

for

removal

or

in

subsequent

Grohs, 2017 WL 5171845, at *3,

quoting Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S. Ct.
237, 62 L. Ed. 2d 713 (1918).
Further, to the extent that Respondent relies on Section
1443 as the basis for removal, such reliance is misplaced.

It is

well-established that Section 1443 “‘applies only in cases where a
defendant seeks to remove a state cause of action based upon racial
discrimination.’” Grohs v. Grohs, 17-1605, 2017 WL 4678182, *3 (D.
Conn. Oct. 17, 2017) (emphasis in original), quoting Robinson v.
Eichler, 795 F. Supp. 1253, 1258 (D. Conn. 1992) (Section 1443’s
“scope is very narrow”) (citing Johnson v. Miss., 421 U.S. 213,
219, 95 S. Ct. 1591, 44 L. Ed. 2d 121 (1975)).
6

Given

Respondent’s

acknowledgment that “there is no racial component in this case”
(Pet. Ex. 9, Docket Entry 1-9), Section 1443 has no application
here.
Moreover,

although

Respondent’s

Notice

of

Removal,

including exhibits, is comprised of eighty-two pages, he has 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.5
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

5

Although Respondent claims that docket information for Family
Court cases are “kept unlawfully hidden away from the general
public, and have to be requested from a state/county court clerk,
which was personally and refused to me by the Suffolk County
clerks at their regular public clerk counter on more than one (1)
occasion” (see Clarke Aff., Pet. Ex. A, at ¶ 3), he
misunderstands the rule. The removal statute requires the
submission of all “pleadings[] and orders” served upon him and
not necessarily filed with the state court. See 28 U.S.C.
§ 1446(a).
7

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) and (2) MAIL a copy of this Memorandum and Order to
Respondent.

Given

the

remand,

Respondent’s

motions

for

disqualification are DENIED as they are now MOOT.
II.

The All Writs Act
Under the All Writs Act, a federal court “may issue all

writs

necessary

or

appropriate

in

aid

of

their

respective

jurisdictions and agreeable to the usages and principles of law.”
28 U.S.C. § 1651(a). The All Writs Act “grants district courts the
power, under certain circumstances, to enjoin parties from filing
further lawsuits.”
261 (2d Cir. 1999).

MLE Realty Assocs. v. Handler, 192 F.3d 259,
Those circumstances include cases where a

litigant engages in the filing of repetitive and frivolous suits.
See Malley v. N.Y. City Bd. of Educ., 112 F.3d 69 (2d Cir. 1997)
(per curiam) (filing injunction may issue if numerous complaints
filed are based on the same events); In re Martin-Trigona, 9 F.3d
8

226, 227-28 (2d Cir. 1993).
the

courts

and

parties

Such an injunction, while protecting

from

frivolous

litigation,

should

be

narrowly tailored so as to preserve the right of access to the
courts.

In addition, the Court must provide plaintiff with notice

and an opportunity to be heard before imposing a filing injunction.
Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam).
Here, Respondent has twice sought to remove to this Court
a child support enforcement action pending in the New York State
Family Court, Suffolk County.

Respondent’s instant Notice of

Removal suggests that he may also seek to file a new complaint in
this Court concerning the underlying child support enforcement
action and challenging rulings therein.

Respondent is cautioned

that the Court will not tolerate frivolous filings in this Court.
The

Court

has

an

“obligation

to

protect

the

public

and

the

efficient administration of justice from individuals who have a
history of litigation entailing vexation, harassment and needless
expense to other parties and an unnecessary burden on the courts
and their supporting personnel.”

Lau v. Meddaugh, 229 F. 3d 121,

123 (2d Cir. 2000) (internal quotation marks, citations, and
alteration

omitted).

The

Court

is

especially

cognizant

of

Respondent’s pro se status and has considered his submissions in as
positive a light as possible.

Nonetheless, the Court now warns

Respondent that similar, future attempts to remove the Family Court
matter or any new complaint concerning the same subject matter as
9

set forth in the Notices of Removal will not be tolerated.

Given

Respondent’s litigation history, the Court now ORDERS RESPONDENT TO
SHOW CAUSE BY FILING AN AFFIDAVIT WITHIN THIRTY (30) DAYS WHY AN
ORDER BARRING HIM FROM FILING ANY FURTHER NOTICE OF REMOVAL SEEKING
TO REMOVE THE CHILD SUPPORT ENFORCEMENT ACTION TO THIS COURT OR ANY
NEW COMPLAINT CONCERNING THE SAME SUBJECT MATTER AS WAS SET FORTH
IN THE NOTICES OF REMOVAL SHOULD NOT BE ENTERED.

Respondent is

advised that failure to file an affidavit in accordance with this
Order to Show Cause will lead to the entry of an order barring
Respondent from filing any new notice of removal or complaint
relating to the child support enforcement action and the Court will
direct the Clerk of the Court to return to Respondent, without
filing, any such action.
Finally, Respondent is cautioned that Rule 11 of the
Federal Rule of Civil Procedure applies to pro se litigants, see
Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (“Rule
11 applies both to represented and pro se litigants . . . .”), and
should he file another notice of removal or complaint relating to
these issues, it is within the Court’s authority to consider
imposing sanctions upon them.

See FED. R. CIV. P. 11; In re

Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (a district
court has “the power and the obligation to protect the public and
the

efficient

administration

of

justice

from

[a

vexatious

litigant’s] litigious propensities”); Safir v. U.S. Lines, Inc.,
10

792 F.2d 19, 24 (2d Cir. 1986) (“‘A district court not only may but
should

protect

functions

its

against

ability

the

threat

to
of

carry

out

onerous,

its

constitutional

multiplicitous,

and

baseless litigation.’”) (quoting Abdullah v. Gatto, 773 F.2d 487,
488 (2d Cir. 1985) (per curiam)).
CONCLUSION
For the reasons set forth above, 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 Family Court of the State of New York, County of
Suffolk, pursuant to 42 U.S.C. § 1447(c) and (2) MAIL a copy of
this Memorandum and Order to Respondent.

Given the remand,

Respondent’s motions for disqualification are DENIED as they are
now MOOT.
RESPONDENT

IS

ORDERED

TO

SHOW

CAUSE

BY

FILING

AN

AFFIDAVIT WITHIN THIRTY (30) DAYS WHY AN ORDER BARRING HIM FROM
FILING ANY FURTHER NOTICE OF REMOVAL SEEKING TO REMOVE THE CHILD
SUPPORT ENFORCEMENT ACTION TO THIS COURT OR ANY NEW COMPLAINT
CONCERNING THE SAME SUBJECT MATTER AS WAS SET FORTH IN THE NOTICES
OF REMOVAL SHOULD NOT ENTERED.

Respondent is advised that failure

to file an affidavit in accordance with this Order to Show Cause
will lead to the entry of an order barring Respondent from filing
any new notice of removal or complaint relating to the child
support enforcement action and the Court will direct the Clerk of
11

the Court to return to Respondent, without filing, any such action.
Respondent is also cautioned that, should he file another notice of
removal or complaint relating to the child support enforcement
action, it is within the Court’s authority to consider imposing
sanctions upon him pursuant to Federal Rule of Civil Procedure 11.
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).
The Clerk of the Court is DIRECTED to mail a copy of this
Memorandum and Order to Show Cause to Respondent at his last known
address and to file proof of such service with the Court.

SO ORDERED.

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

December
11 , 2017
Central Islip, New York

12