Archer-Vail v. LHV Precast Inc. et al

Filing 19

SUMMARY ORDER - That this matter be REMANDED to New York Supreme Court in Ulster County. That LHV's motion to dismiss (Dkt. No. 8) is DENIED AS MOOT. That Wieser Products' and Wieser Roxana's motion to dismiss (Dkt. No. 9) is DENIED AS MOOT. That the Clerk provide a certified copy of this Summary order to New York Supreme Court in Ulster County. Signed by Senior Judge Gary L. Sharpe on 10/30/2017. (Certified Copy served via regular mail to Ulster County Supreme Court)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PATRICIA A. ARCHER-VAIL,
as the administratrix of the
estate of John F. Vail,
deceased, and individually,
Plaintiff,

1:17-cv-1113
(GLS/CFH)

v.
LHV PRECAST INC. et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Marc J. Bern & Partners LLP
60 East 42nd Street, Suite 950
New York, NY 10165
FOR THE DEFENDANTS:
LHV Precast Inc.
Goldberg, Segalla Law Firm - Albany
Office
8 Southwoods Boulevard
Suite 300
Albany, NY 12211
Wieser Concrete Products, Inc. and
Wieser Concrete Roxana, LLC
Salmon Ricchezza Singer & Turchi,
LLP - NJ Office
Tower Commons, Suite 406
123 Egg Harber Road
Sewell, NJ 08080

ELLIOT M. SCHAKTMAN, ESQ.

WILLIAM J. GREAGAN, ESQ.
JAMES F. FAUCHER, II, ESQ.

JEFFREY A. SEGAL, ESQ.

Spillman Company
Catania, Mahon, Milligram & Rider,
PLLC
One Corwin Court
Newburgh, NY 12550

MICHAEL E. CATANIA, ESQ.

Gary L. Sharpe
Senior District Judge
SUMMARY ORDER
In or around August 2017, plaintiff Patricia A. Archer-Vail, as the
administratrix of the estate of John F. Vail, deceased, and individually,
commenced an action in New York Supreme Court in Ulster County
against LHV Precast Inc. (LHV), Wieser Concrete Products, Inc. (Wieser
Products), Wieser Concrete Roxana, LLC (Wieser Roxana), and Spillman
Company.1 (Dkt. No. 2 at 3.) On October 5, 2017, Wieser Products and
Wieser Roxana filed a notice of removal in this court.2 (Dkt. No. 1.)
Subsequently, LHV filed a motion to dismiss, (Dkt. No. 8), and Wieser
Products and Wieser Roxana filed one as well, (Dkt. No. 9).
Removal here is improper. 28 U.S.C. § 1441(b)(2) states that “[a]
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“ABC Corporation 1-10 (being a fictitious name as the identity of the corporation(s)
and/or company(ies) is/are presently unknown)” is also named as a defendant(s). (Dkt. No. 2
at 3.)
2

LHV consented to the removal, (Dkt. No. 1, Attach. 3 ¶ 3), and Spillman Company
has not indicated that it does not consent.

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civil action otherwise removable solely on the basis of the jurisdiction under
section 1332(a) of [Title 28] may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of the State
in which such action is brought.” Here, defendant LHV is a citizen of New
York, (Dkt. No. 1 ¶ 13(e); 28 U.S.C. § 1332(c)(1)), and was served, (Dkt.
No. 1 ¶ 9). Because LHV is a citizen of the State in which this action is
brought—i.e., New York—and the instant action is removable solely on the
basis of diversity jurisdiction, (Dkt. No. 1 ¶¶ 12-14), removal is improper.
See Confer v. Bristol-Myers Squibb Co., 61 F. Supp. 3d 305, 305-06
(S.D.N.Y. 2014) (applying 28 U.S.C. § 1441(b)(2) and positing rationale of
statute); Kucher v. Exceeding Expectations, Inc., No. 1:12–CV–00169,
2012 WL 3308892, at *2 (N.D.N.Y. Aug. 13, 2012).
28 U.S.C. § 1441(b)(2) is a rule of procedure, not a jurisdictional
requirement. See Shapiro v. Logistec USA, Inc., 412 F.3d 307, 313 (2d
Cir. 2005). Nonetheless, a district court may sua sponte order remand for
a procedural defect within thirty days of the filing of a notice of removal.
See Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131
(2d Cir. 2006); New York v. Stoddard, No. 1:06-CV-1320, 2006 WL
3423863, at *1 n.3 (N.D.N.Y. Nov. 28, 2006).
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“In light of the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the independence of
state governments, federal courts construe the removal statute narrowly,
resolving any doubts against removability.” Confer, 61 F. Supp. 3d at 306
(internal quotation marks and citation omitted). This case runs afoul of 28
U.S.C. § 1441(b)(2) and is thus remanded. See BCAT REO LLC v.
Gordon, No. 15–CV–5093, 2015 WL 5664421, at *1 (E.D.N.Y. Sept. 24,
2015).
Accordingly, it is hereby
ORDERED that this matter be REMANDED to New York Supreme
Court in Ulster County; and it is further
ORDERED that LHV’s motion to dismiss (Dkt. No. 8) is DENIED AS
MOOT; and it is further
ORDERED that Wieser Products’ and Wieser Roxana’s motion to
dismiss (Dkt. No. 9) is DENIED AS MOOT; and it is further
ORDERED that the Clerk provide a certified copy of this Summary
Order to New York Supreme Court in Ulster County; and it is further
ORDERED that the Clerk provide copies of this Summary Order to
the parties.
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IT IS SO ORDERED.
October 30, 2017
Albany, New York

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