Leviston v. Jackson
Filing
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OPINION AND ORDER re: 6 EMERGENCY MOTION to Remand and Motion for Sanctions filed by Lastonia Leviston. Defendant is hereby ORDERED to show cause in writing by July 10, 2015, pursuant to Federal Rule of Civil Procedure 11(c)(3), why th e Court should not sanction him for the conduct described in this Opinion, viz., making a frivolous removal of this case for the improper purpose of delaying the trial in New York Supreme Court. For the foregoing reasons, Plaintiff's motion is G RANTED, and this case is hereby REMANDED to the Supreme Court, County of New York. Defendant has until on or before July 10, 2015, to respond to Plaintiff's application for fees and costs, and to this Court's order to show cause as to why Defendant should not be sanctioned under Rule 11. Plaintiff has until July 24, 2015, to submit a reply, if any. (Signed by Judge Katherine Polk Failla on 6/12/2015) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LASTONIA LEVISTON,
:
:
Plaintiff,
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:
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v.
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CURTIS JAMES JACKSON, III,
:
:
a/k/a 50 CENT,
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Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: June 12, 2015
______________
15 Civ. 4563 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
This case embodies a striking abuse of the federal removal statute by
Defendant Curtis James Jackson, III, also known as 50 Cent, in an effort to
avoid standing trial in New York County Supreme Court. This is not the first
time Defendant has attempted this dilatory tactic in his state case, Leviston v.
Jackson, Index No. 10/102449. Just over two weeks ago, on May 26, 2015,
Defendant removed the case to this Court on the day trial was to begin, on the
basis that it was “related to” the bankruptcy of a company owned by
Defendant, SMS Promotions, LLC, filed one day earlier in the United States
Bankruptcy Court for the District of Connecticut. In granting Plaintiff’s
Emergency Motion to Remand and/or Abstain (15 Civ. 3989 Dkt. #4), this
Court exercised its authority to permissively abstain and equitably remand the
case. (See May 28, 2015 Tr. (15 Civ. 3989 Dkt. #10) 49-53). In doing so, the
Court outlined its concerns about the “tortuous path” the case had taken in
New York Supreme Court since it was filed in 2010; the multiple adjournments
of trial Defendant had sought and been denied; and the fact that Justice Paul
Wooten, the New York State Supreme Court, and Plaintiff were poised and
ready for a long-scheduled (and, it would appear, high-profile) trial. (Id. at 4950). The Supreme Court learned of the removal only on the morning trial was
to begin, when defense counsel failed to appear as directed. (Id.). This Court
decried defense counsel’s unsavory tactic, on the day before trial was to start,
of hiding their intention to remove the case, even as they met with Plaintiff’s
counsel in preparation for the very trial they planned to subvert. (Id. at 50).
Moreover, the Court found that the bankruptcy petition at issue had only a
tenuous relationship to the state-court litigation. (Id. at 50-51). The Court
promptly remanded the case and set a schedule for Defendant to reply to
Plaintiff’s application for fees and costs.
The instant removal is even more egregious. Defendant’s prior sortie
necessarily delayed the start of trial, providing him an unwarranted (if shortlived) adjournment. The Court understands from Justice Wooten’s Chambers
and from Plaintiff’s second emergency motion papers that trial was rescheduled
for June 1, 2015, and then delayed to June 2, 2015, to accommodate pretrial
motions. That morning, a venire was assembled in the courtroom and jury
selection was to begin; Defendant filed a motion to dismiss based on a newlyasserted affirmative defense. The venire was dismissed, and Justice Wooten
heard oral argument on the motion. After further oral argument on June 3,
2015, Justice Wooten denied the motion on the morning of June 4, 2015.
Defendant filed an appeal and emergency application for a stay of trial in the
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Appellate Division, First Department; the Appellate Division denied the
application for a stay that same day. Jury selection commenced in the late
morning of June 4, 2015, and on June 10, 2015, jury selection concluded and
a jury was sworn and empanelled.
Trial was to start today, June 12, 2015, at 9:15 a.m. This morning, the
courtroom was set up with technology specifically requested by the parties;
Justice Wooten and his staff were standing by for trial; courthouse security
was readied for intensified media presence; the jury was present; and counsel
for both sides were there. At 9:12 a.m., Defendant filed a notice of removal
with the New York Supreme Court clerk, again surreptitiously obtaining an
adjournment of trial. The jury was dismissed for the day. The Court
understands from Justice Wooten’s Chambers and from Plaintiff’s submission
that Justice Wooten will maintain this jury panel until June 17, 2015, at his
discretion and in accordance with state law. See N.Y. Judiciary Law § 525(a)
(McKinney 2015). Plaintiff has once again filed an Emergency Motion to
Remand and for Sanctions (Dkt. #6), which is currently before the Court.
Defendant purports to have “timely removed” this five-year-old case
under 28 U.S.C. § 1446 on two grounds, neither of which confers removal
jurisdiction on this Court, particularly at this late hour. (Notice of Removal
¶ 5). Defendant asserts both diversity jurisdiction under 28 U.S.C. § 1332 and
federal question jurisdiction under 28 U.S.C. § 1331.
As for diversity jurisdiction under 28 U.S.C. § 1332, Defendant asserts
that, despite the one-year limitation contained in 28 U.S.C. § 1446(c)(1),
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removal on this basis is timely because (i) Plaintiff “only recently served
Defendant with an email establishing that Plaintiff is seeking damages in an
amount in excess of the [$75,000] federal jurisdictional threshold” (Notice of
Removal ¶ 5); (ii) the one-year limitation is not applicable to this case because
it was included in a statutory amendment promulgated after this case was filed
(id. at ¶ 6); or (iii) any limitation period should be tolled given the facts of this
case (id.).
Defendant’s claim that he did not know or have paper documentation of
the amount of damages sought in this case until June 7, 2015 (Notice of
Removal ¶ 5), beggars belief. Defense counsel acknowledged before this Court
on May 28, 2015, that Defendant was aware the amount in controversy met the
jurisdictional threshold, but that was not the basis for removal jurisdiction at
that time. (May 28, 2015 Tr. 16:11-14 (“[I]t is a controversy over $75,000.”)).
Plaintiff has also produced documentation making clear that no later than
December 2014 (and likely months or years earlier), Plaintiff had made written
settlement demands in the millions of dollars, and Defendant had made offers
in the hundreds of thousands of dollars. (See Pl. Br. Ex. C (Dkt. #6-3)).
Accordingly, the Court rejects Defendant’s argument that removal is timely on
this basis.1
Nor does Defendant’s argument for the inapplicability of the one-year
provision contained in Section 1446 hold water. Defendant believes that the
1
Moreover, even if Defendant had been entirely unaware of the amount in controversy,
the initial pleadings would have satisfied the requirements of the removal statute based
upon Plaintiff’s request for injunctive relief. See 28 U.S.C. §1446(c)(2)(A)(i).
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one-year limitation provision was added with the 2011 amendments to Section
1446. It was not. Even under the version of the statute in effect in 2010, when
this case was commenced, the statute read, “a case may not be removed on the
basis of jurisdiction conferred by section 1332 of this title more than 1 year
after commencement of the action.” 28 U.S.C. § 1446(b) (2010). The one-year
limitation was added with the 1988 amendments to Section 1446. See Judicial
Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, 102
Stat. 4642 § 1016(b)(2)(B). Further, based on its familiarity with the record of
this case, the Court can comfortably say that there is no reason that this
limitation should be tolled. Accordingly, the Court rejects Defendant’s
argument that diversity removal was timely.
In addition to diversity jurisdiction, Defendant asserts that this Court
has federal question jurisdiction; specifically, Defendant claims that “[t]he
Court has federal question jurisdiction because plaintiff’s claims are preempted
under 47 U.S.C. § 230, the Communications Decency Act [the ‘CDA’].” (Notice
of Removal ¶ 7). This argument, too, fails. It is well-established that for a
federal question to provide the basis for removal jurisdiction, it must appear in
the plaintiff’s complaint itself, rather than in an affirmative defense or
counterclaim. See Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)
(“[A] suit arises under the Constitution and laws of the United States only when
the plaintiff’s statement of his own cause of action shows that it is based upon
those laws or that Constitution.”); see also Marcus v. AT&T Corp., 138 F.3d 46,
52-53 (2d Cir. 1998) (“A claim that federal law preempts all state law remedies
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is usually only a defense to the state law action, and a case generally may not
be removed to federal court on that basis, ‘even if the defense is anticipated in
the plaintiff’s complaint, and even if both parties concede that the federal
defense is the only question truly at issue.’” (quoting Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987))). This rule is subject to only a narrow exception for
“complete preemption,” where the federal law at issue entirely bars state courts
from entering the field. See Caterpillar, 482 U.S. at 393-94.
Defendant’s argument for removal on the basis that the CDA preempts
Plaintiff’s claims thus requires Defendant to demonstrate that Section 230 of
the CDA preempts state law entirely within its field. It does not. Courts
operate under “the assumption that the historic police powers of the States
[are] not to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
230 (1947); moreover, “[t]hat assumption applies with particular force when
Congress has legislated in a field traditionally occupied by the States,” Altria
Grp., Inc. v. Good, 555 U.S. 70, 77 (2008). By its plain text, the CDA merely
preempts those state laws that are in conflict with the CDA, and it specifically
disclaims the preemption of consistent state laws: “Nothing in this section shall
be construed to prevent any State from enforcing any State law that is
consistent with this section. No cause of action may be brought and no
liability may be imposed under any State or local law that is inconsistent with
this section.” 47 U.S.C. § 230(e)(3). Given this language, the Court cannot find
that “the scope of [the] statute indicates that Congress intended federal law to
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occupy [the] field exclusively.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287
(1995); accord Cisneros v. Sanchez, 403 F. Supp. 2d 588, 593 (S.D. Tex. 2005)
(“[T]he language used in § 230(e)(3) of the CDA clearly does not rise to the level
of complete preemption.”); Zeran v. Am. Online, Inc., 958 F. Supp. 1124, 1131
(E.D. Va. 1997) (finding that “Congress has clearly expressed an intent not to
preempt the field,” and that “the CDA reflects no congressional intent, express
or implied, to preempt all state law causes of action concerning interactive
computer services”), aff’d, 129 F.3d 327 (4th Cir. 1997).
This Court therefore finds that it does not have jurisdiction over this
case. Independently and in the alternative, the Court exercises its authority to
permissively abstain from hearing this case and to equitably remand it. As
apparent from the recitation of this case’s procedural history, Defendant’s
attempted removal is a transparent delay tactic, an egregious abuse of the
federal removal statute, and an unmeritorious attempt to avoid standing trial.
Such tactics cannot be countenanced. Rule 11(c) of the Federal Rules of Civil
Procedure permits the court, acting on its own initiative, to sanction an
attorney, law firm, or party if the court determines — after an order to show
cause and a reasonable opportunity to respond — that the attorney, law firm,
or party has violated Rule 11(b) by making filings presented for the improper
purpose of causing unnecessary delay, and by presenting frivolous arguments
in support of its filing. Fed. R. Civ. P. 11(b)(1)-(2); cf. Williamson v. Recovery
Ltd. P’ship, 542 F.3d 43, 51 (2d Cir. 2008) (finding Rule 11 sanctions
appropriate for making “false, misleading, improper, or frivolous
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representations to the court”). Defendant is hereby ORDERED to show cause
in writing by July 10, 2015, pursuant to Federal Rule of Civil Procedure
11(c)(3), why the Court should not sanction him for the conduct described in
this Opinion, viz., making a frivolous removal of this case for the improper
purpose of delaying the trial in New York Supreme Court.
For the foregoing reasons, Plaintiff’s motion is GRANTED, and this case
is hereby REMANDED to the Supreme Court, County of New York. Defendant
has until on or before July 10, 2015, to respond to Plaintiff’s application for
fees and costs, and to this Court’s order to show cause as to why Defendant
should not be sanctioned under Rule 11. Plaintiff has until July 24, 2015, to
submit a reply, if any.
SO ORDERED.
Dated:
June 12, 2015
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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