Henry v. Gershan et al

Filing 28

ORDER: Accordingly, because Defendant Gershan's summary judgment motion was filed after the notice of removal was filed in state court, the state court did not have jurisdiction over that motion. After the notice of removal wasfiled in federal c ourt on August 6, 2020, I had jurisdiction over the action, and on February 11, 2021, I dismissed the action without prejudice. (Doc. 19.) For the aforementioned reasons, I reiterate again that this action is dismissed. SO ORDERED. (Signed by Judge Vernon S. Broderick on 3/31/2021) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SEANA HENRY,
:
:
Plaintiff,
:
:
:
- against :
:
STEVEN GERSHAN, JAMES KIM and
:
:
DREAM NJ, INC.,
:
Defendants. :
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3/31/2021

20-cv-6133 (VSB)
ORDER

VERNON S. BRODERICK, United States District Judge:
On March 12, 2021, I directed Defendant Steven Gershan to provide the Court with a
stamped copy of his motion for summary judgment in New York Supreme Court Bronx County
by March 18, 2021. (Doc. 24.) I directed Defendants James Kim and Dream NJ, Inc. (“Dream”)
to provide the Court with a stamped copy of their notice of removal filed in New York Supreme
Court Bronx County, and I directed the parties to provide the Court with a copy of the docket
sheet from New York Supreme Court Bronx County. (Id.)
Defendants Kim and Dream have provided me with their notice of removal, which
indicates that the notice was filed in New York Supreme Court Bronx County on August 6, 2020,
(Doc. 26-1); this is the same day the notice was filed before me, (see Doc. 2). Plaintiff filed the
docket sheet from New York Supreme Court Bronx County. (Doc. 27-1.) Defendant Gershan
did not respond to my request.
Based on the docket sheet, it appears that Defendant Gershan’s summary judgment
motion was filed on September 23, 2020, which is after Defendants Kim and Dream filed their
notice of removal. (See Doc. 27-1 at 3–4.) When a case is removed, “the State court shall

proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d). “The state court
may not proceed irrespective of whether the action is removable, as that is a question for the
federal court.” Riveredge Owners’ Ass’n v. Town of Cortlandt, Inc., No. 16CV5665GBDJLC,
2016 WL 6462387, at *7–8 (S.D.N.Y. Nov. 1, 2016), report and recommendation adopted, No.
16CIV5665GBDJLC, 2016 WL 7392218 (S.D.N.Y. Dec. 21, 2016) (internal quotation marks
omitted) (holding that action taken by state court after the case was removed was void). “A
federal district court has jurisdiction on the day that a notice of removal is filed with the Clerk of
that court. . . . A State court, on the other hand, loses jurisdiction on the date the notice of
removal is filed in State court.” Id. at *7 (internal quotation marks omitted); see Almonte v.
Target Corp., 462 F. Supp. 3d 360, 365 (S.D.N.Y. 2020) (“a federal court obtains jurisdiction
when the notice of removal is filed with the federal court.”). Accordingly, because Defendant
Gershan’s summary judgment motion was filed after the notice of removal was filed in state
court, the state court did not have jurisdiction over that motion. After the notice of removal was
filed in federal court on August 6, 2020, I had jurisdiction over the action, and on February 11,
2021, I dismissed the action without prejudice. (Doc. 19.) For the aforementioned reasons, I
reiterate again that this action is dismissed.
SO ORDERED.
Dated: March 31, 2021
New York, New York
______________________
Vernon S. Broderick
United States District Judge