Cardello-Smith v. Combs

Filing 3

ORDER: The Clerk of Court is directed to transfer this action to the United States District Court for the Eastern District of Michigan. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be m ade by the transferee court. A summons shall not issue from this Court. This order closes the case in the Southern District of New York. The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in go od faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Laura Taylor Swain on 11/25/2024) (tro) Transmission to Office of the Clerk of Court for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DERRICK LEE CARDELLO-SMITH,
Plaintiff,

24-CV-8738 (LTS)

-against-

TRANSFER ORDER

SEAN COMBS,
Defendant.
LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is currently incarcerated in the Earnest C. Brooks Correctional Facility, in
Muskegon, Michigan, styles this petition as a “Notice of Removal” of his federal action,
Cardello-Smith v. Combs, No. 24-CV-12737 (E.D. Mich. Nov. 18, 2024) (dismissed without
prejudice). 1 Plaintiff names Sean Combs as the sole defendant in this action. Plaintiff previously
filed an action against Defendant Sean Combs in a Michigan state court (the 39th Circuit Court
for the County of Lenawee), which Combs removed to federal court on the basis of diversity
jurisdiction, where it remains pending See Cardello-Smith v. Combs, No. 24-CV-12647, 35 (JEL)
(KGA) (E.D. Mich. Nov. 15, 2024) (denying motion to remand). For the following reasons, this
action is transferred to the United States District Court for the Eastern District of Michigan.
DISCUSSION
A.

Removal
The statute governing removal of an action to federal court provides, in relevant part, as

1

The Eastern District of Michigan dismissed that action without prejudice on the ground
that Plaintiff was barred, under 28 U.S.C. § 1915(g), from filing federal civil actions in forma
pauperis while he is a prisoner, and he “has been made aware that he is a three-striker because he
has been denied leave to proceed in forma pauperis as a three-striker on multiple occasions.”
Cardello-Smith, No. 24-CV-12737, 9 (E.D. Mi. Nov. 18, 2024) (collecting cases). Plaintiff has
not submitted an in forma pauperis application or prisoner authorization form for this action.

follows:
[A]ny 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).
Plaintiff’s attempt to style this action as a Notice of Removal is improper for multiple
reasons. First, removal is available only to a defendant – not a plaintiff. Id. § 1441 (“Any civil
action . . . may be removed by the defendant . . . .”). Second, the procedure allows for removal to
federal district court of an action pending in state court – not an action pending in another federal
district court. This complaint therefore cannot be treated as a Notice of Removal.
B.

Venue
Under the general venue statute, a civil action may be brought in
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located; (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim
occurred . . . ; or (3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b).
Plaintiff brings this new action against Defendant Combs for allegedly breaching an
agreement. (ECF 1 at 1.) Plaintiff alleges that “the contract signing took place in New York, as
well as Michigan.” (Id.)
These claims against Combs are apparently already pending in the United States District
Court for the Eastern District of Michigan. Cardello-Smith, No. 24-CV-12737 (E.D. Mich.). In
that action, Plaintiff brings claims against Defendant Combs for allegedly (1) sexually assaulting
him in 1997 in Michigan, (2) breaching a contract with Plaintiff, who had allegedly invested

2

$150,000 in Combs’s Bad Boy record label; and (3) engaging in a conspiracy with then-Judge
Kym Worthy of Wayne County, Michigan. Cardello-Smith, No. 24-CV-12737 (E.D. Mich.).
The Court may transfer claims “[f]or the convenience of the parties and witnesses, in the
interest of justice.” 28 U.S.C. § 1404(a). “District courts have broad discretion in making
determinations of convenience under Section 1404(a) and notions of convenience and fairness
are considered on a case-by-case basis.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d
Cir. 2006). Moreover, courts may transfer cases on their own initiative. See Bank of Am., N.A. v.
Wilmington Trust FSB, 943 F. Supp. 2d 417, 426-27 (S.D.N.Y. 2013) (“Courts have an
independent institutional concern to see to it that the burdens of litigation that is unrelated to the
forum that a party chooses are not imposed unreasonably on jurors and judges who have enough
to do in determining cases that are appropriately before them. The power of district courts to
transfer cases under Section 1404(a) sua sponte therefore is well established.” (quoting Cento v.
Pearl Arts & Craft Supply Inc., No. 03-CV-2424, 2003 WL 1960595, at *1 (S.D.N.Y. Apr. 24,
2003))); see also Lead Indus. Ass’n. Inc. v. OSHA, 610 F.2d 70, 79 (2d Cir. 1979) (noting that
“broad language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua
sponte”).
Where a plaintiff files duplicative, or substantially similar actions, in two different
districts, there is a strong presumption in favor of the forum of the first-filed suit. See New York
v. Exxon Corp., 932 F.2d 1020, 1025 (2d Cir. 1991). In addition, a plaintiff’s choice of forum is
accorded less deference where the plaintiff does not reside in the chosen forum and the operative
events did not occur there. See Iragorri v. United Tech. Corp., 274 F.3d 65, 72 (2d Cir. 2001).
Here, Plaintiff already has a substantially similar action pending in the Eastern District of

3

Michigan. Plaintiff does not reside in this district, and he alleges that at least part of his claims
arose in Michigan. (ECF 1 at 1.)
Under Section 1404(a), transfer appears to be appropriate for this action. Accordingly, the
Court transfers this action to the United States District Court for the Eastern District of
Michigan. 28 U.S.C. § 1404(a); see D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir.
2006) (“District courts have broad discretion in making determinations of convenience under
Section 1404(a) and notions of convenience and fairness are considered on a case-by-case
basis.”).
CONCLUSION
The Clerk of Court is directed to transfer this action to the United States District Court
for the Eastern District of Michigan. Whether Plaintiff should be permitted to proceed further
without prepayment of fees is a determination to be made by the transferee court. A summons
shall not issue from this Court. This order closes the case in the Southern District of New York.
The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

November 25, 2024
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

4