Suttlehan et al v. MidFirst Bank
Filing
27
OPINION & ORDER re: 20 FIRST MOTION to Remand to State Court. filed by Nancy Suttlehan, Michael Suttlehan. Plaintiffs' Motion to Remand is denied. The Clerk of the Court is respectfully requested to terminate the pending Motion. (See Dkt. No. 20.) So Ordered. (Signed by Judge Kenneth M. Karas on 8/25/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL SUTTLEHAN and NANCY
SUTTLEHAN,
Case No. 15-CV-8348 (KMK)
Plaintiffs,
OPINION & ORDER
-vMIDFIRST BANK,
Defendant.
Appearances:
James V. Galvin, Esq.
Bonacic, Krahulik, Cuddeback, McMahon & Brady, LLP
Middletown, NY
Counsel for Plaintiffs
Lori Beth Lewis, Esq.
Lewis Scaria & Cote, LLC
White Plains, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiffs Michael Suttlehan and Nancy Suttlehan (collectively, “Plaintiffs”) bring this
action related to injuries Plaintiff Michael Suttlehan sustained while on Defendant’s premises.
Defendant removed the case to federal court, and Plaintiffs move to remand. For the reasons to
follow, Plaintiffs’ Motion is denied.
I. Background
Plaintiffs filed their initial complaint in New York State Supreme Court alleging that
MidFirst Bank’s (“Defendant”) negligence caused Plaintiff Michael Suttlehan to fall and sustain
injuries while on Defendant’s premises on March 6, 2015. (See Notice of Removal Ex. A
(“Compl.” (Dkt. No. 1).) On April 12, 2015, Defendant filed its verified answer. (See Notice of
Removal Ex. B.) Shortly thereafter, on approximately April 28, 2015, the Town of New
Windsor (“the Town”) filed a Summons and Verified Complaint against Defendant based upon
the same events at issue in Plaintiffs’ suit. (See Mem. of Law in Supp. of Pls.’ Mot. To Remand
(“Pls.’ Mem.”) 4–8 (Dkt. No. 22); compare also Compl., with Pls.’ Mem. Ex. D (“Town
Compl.”).) According to the Town’s complaint, Plaintiffs’ damages totaled at least $168,416.17.
(Town Compl. ¶ 23.) Additionally, on July 20, 2015, Defendant’s attorney emailed counsel for
the Town, “agree[ing] [that] [the parties to that lawsuit] should consolidate th[e] action with the
underlying action brought by Michael Suttlehan,” but adding that “whether [they] do it in
Supreme Court or Federal Court needs to be determined.” (Reply Aff’n in Supp. of Mot. To
Remand (“Pls.’ Reply”) Ex. A (Dkt. No. 25).)
On September 25, 2015, Plaintiffs served a verified bill of particulars on Defendant. (See
Notice of Removal ¶ 7; Notice of Removal Ex. C (“Bill of Particulars”).) On October 22, 2015,
Defendant filed a notice of removal pursuant to 28 U.S.C. § 1446(b), removing the action from
State Supreme Court to this Court. (See generally Notice of Removal.)
On November 18, 2015, Plaintiffs moved to remand the case to state court, (see Dkt. Nos.
3–9), relief this Court denied for failure to follow its Individual Practices, (see Dkt. No. 10).
Thereafter, on November 20, 2015, counsel for Plaintiffs submitted a pre-motion letter, (see
Letter from James V. Galvin, Esq., to Court (Nov. 20, 2015) (Dkt. No. 11)), to which Defendant
responded on December 7, 2015, (see Letter from Lori B. Lewis, Esq., to Court (Dec. 7, 2015)
(Dkt. No. 15)). The Court held a pre-motion conference on February 3, 2016, (see Dkt. (minute
entry for Feb. 3, 2016)), and, on February 18, 2016, Plaintiffs filed their Motion to Remand and
accompanying papers, (see Dkt. Nos. 20, 22), arguing that Defendant’s Notice of Removal was
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untimely, (see Pls.’ Mem. 4–8.) On March 9, 2016, Defendant’s counsel filed an affirmation in
opposition to Plaintiffs’ Motion, (see Aff’n in Opp’n (“Def.’s Opp’n”) (Dkt. No. 24)), and, on
March 23, 2016, counsel for Plaintiffs replied in support of their original motion, (see Pls.’
Reply).
II. Discussion
A. General Principles
“‘Federal courts are courts of limited jurisdiction’ that ‘possess only that power
authorized by Constitution and statute.’” Hendrickson v. United States, 791 F.3d 354, 358 (2d
Cir. 2015) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
Among the limited categories of disputes over which a federal court may exercise jurisdiction are
those “civil actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between . . . citizens of different states.” 28 U.S.C
§ 1332(a)(1). Where, as here, a case meets these requirements, but was nevertheless initiated in
state court, it “may be removed by the defendant . . . to the district court of the United States for
the district and division embracing the place where such action is pending,” at least if Congress
has not provided otherwise, 28 U.S.C. § 1441(a), and provided that the defendant in the diversity
action is not a citizen of the state where the action was brought, id. § 1441(b)(2). “[I]n 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.” Purdue Pharma L.P. v. Kentucky, 704
F.3d 208, 213 (2d Cir. 2013); see also Commonwealth Advisors Inc. v. Wells Fargo Bank, Nat’l
Ass’n, No. 15-CV-7834, 2016 WL 3542462, at *2 (S.D.N.Y. June 23, 2016) (same).
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This right to removal, however, has a shelf life, and, where the action has been pending
for a year or less, see 28 U.S.C. § 1446(c)(1), the notice of removal is to be “filed within 30 days
after receipt by the defendant, through service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which is
or has become removable,” see id. § 1446(b)(3). Where, as here, “the case stated by the initial
pleading [was] not removable solely because the amount in controversy [did] not exceed”
$75,000, “information relating to the amount in controversy in the record of the State
proceeding, or in responses to discovery, shall be treated as an ‘other paper’ under subsection
(b)(3).” Id. § 1446(c)(3)(A).
The dispute here is whether some “other paper from which it may . . . be ascertained that
the case is one which is . . . removable,” § 1446(b)(3), started the clock early enough that those
30 days have now lapsed. Plaintiffs say yes, reasoning that the clock started ticking upon filing
of the action brought by the Town, (see Pls.’ Mem. 5), when the parties to these two actions
considered consolidating the cases, (see id. at 6), or, perhaps, upon a July 20, 2015 email
exchange between counsel for Defendant and the Town, (see Pls.’ Reply ¶ 9). Defendant
disagrees, arguing that it did not start until receipt of Plaintiffs’ late September 2015 Bill of
Particulars, (see Def.’s Opp’n ¶ 4; Bill of Particulars). At bottom, the dispute is whether a
“paper from which it may . . . be ascertained that [a] case . . . is or has become removable,” see
§ 1446(b)(3), may include (1) a pleading from a separate, non-consolidated lawsuit, (2) an oral
discussion in the context of a proposed consolidation, or (3) documents composed at least in part
by Defendant’s counsel, specifically, a draft stipulation consolidating Plaintiffs’ and the Town’s
actions or an email from Defendant’s attorney to the Town’s counsel. The Court considers each
in turn.
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B. The Pleading from the Town’s Action
To begin, the conceptual issue surrounding whether the Town summons and complaint
can start the clock, at its core, has to do with whether papers from other lawsuits may count as an
“other paper.” As a general proposition, many courts have determined that documents
emanating from without the lawsuit do not count as an “other paper” within the meaning of
§ 1446(b)(3). See, e.g., Garth O. Green Enters., Inc. v. Harward, No. 14-CV-266, 2014 WL
3404620, at *3 (D. Utah July 10, 2014) (“The general rule is that documents generated in cases
separate from a case as to which removal is sought are neither orders nor other paper within the
meaning of 28 U.S.C. § 1446(b).” (internal quotation marks omitted)); Illinois v. McGraw-Hill
Cos., No. 13-CV-1725, 2013 WL 1874279, at *2 (N.D. Ill. May 2, 2013) (noting that “a majority
of courts in this and other circuits[] have held that filings in other lawsuits—including those
involving the same defendant in parallel, factually-similar state actions—do not constitute ‘other
papers’ for removal purposes” and collecting cases); Disher v. Citigroup Glob. Markets, Inc.,
487 F. Supp. 2d 1009, 1016 (S.D. Ill. 2007) (noting “the general rule in the federal courts that
documents generated in cases separate from a case as to which removal is sought are neither
orders nor other paper within the meaning of 28 U.S.C. § 1446(b)” and collecting cases);
Arseneault v. Congoleum, No. 01-CV-10657, 2002 WL 472256, at *4 (S.D.N.Y. Mar. 26, 2002)
(“[C]ourts—or at least many courts—have generally required that notice be ascertainable from
the record or papers produced in the action itself.” (internal quotation marks omitted)),
reconsideration granted on other grounds, 2002 WL 531006 (S.D.N.Y. Apr. 8, 2002); see also
32A Am. Jur. 2d Federal Courts § 1451 (“[T]he phrase ‘other paper’ includes only documents
filed in the case for which removal is sought.”). This, of course, spells at least provisional
trouble for Plaintiffs’ hopes of remand.
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To this, Plaintiffs implicitly argue that the Town’s case is not quite a different one, but
rather is sufficiently similar that this distinction should not matter. While it is not wholly outside
the realm of conceivability that such logic could prevail, see Hood v. Beacon Therapeutic
Diagnostic & Treatment Ctr., No. 97-CV-1717, 1997 WL 323782, at *1–2 (N.D. Ill. June 9,
1997) (remanding a case removed within 30 days of February 1997 consolidation where the
plaintiff had initially filed (1) a non-removable June 7, 1995 wrongful death action and (2) a
removable June 10, 1996 civil rights action, reasoning that, “[d]espite ample time” from June 10,
1996 to do so, “[the defendant] chose not to remove the case”), such a position is nevertheless at
least suspect, cf. Webb Equip. Co. v. Auto Owners Ins. Co., No. 10-CV-5138, 2010 WL 1576731,
at *3 (W.D. Wash. Apr. 20, 2010) (“The phrase ‘other paper’ cannot refer to pleadings filed in a
separate, distinct case, in which the parties are not the same.”); Rynearson v. Motricity, Inc., 626
F. Supp. 2d 1093, 1097 (W.D. Wash. 2009) (rejecting the argument that an affidavit from the
plaintiff’s counsel in another case could count as an “other paper,” and referring to the “the
central rule” that “the phrase ‘other paper’ utilized in [§] 1446(b) cannot refer to pleadings filed
in a separate, distinct case, in which the parties are not the same” (some internal quotation marks
omitted)); Kaplansky v. Associated YM-YWHA’s of Greater N.Y., Inc., No. 88-CV-1292, 1989
WL 29938, at *1–2 (E.D.N.Y. Mar. 27, 1989) (rejecting the notion that the filing of a second
lawsuit against the same defendant counted as an “amended pleading” of the first lawsuit, such
that the first lawsuit could be removed within 30 days); Growth Realty Cos. v. Burnac Mortg.
Inv’rs, Ltd., 474 F. Supp. 991, 996 (D.P.R. 1979) (“As to the issue of timeliness we find that the
phrase ‘other paper’ utilized in [§] 1446(b) cannot refer to pleadings filed in a separate, distinct
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case, in which the parties are not the same and which has not been consolidated as allowed by
the local laws of Civil Procedure with the case at the bar.”).1
The Court concludes Plaintiffs’ position should not carry the day for a few reasons. First,
it is significant that even if the two cases are quite similar, they were not actually consolidated.
This matters because courts have recognized that consolidation is a moment of potential
consequence for § 1446(b) purposes. See In re Methyl Tertiary Butyl Ether (“MTBE”) Products
Liab. Litig., 399 F. Supp. 2d 340, 353 (S.D.N.Y. 2005) (“The few federal courts that have
considered the effect of state consolidation on jurisdiction have found that, under certain
circumstances, where two actions are consolidated into a single action, state-ordered
consolidation may affect jurisdiction and removability.”). Second, courts addressing the issue of
when removal is appropriate focus on whether the plaintiff has engaged in a voluntary act. See,
e.g., Village of Chestnut Ridge v. Town of Ramapo, No. 07-CV-9278, 2008 WL 4525753, at *6
(S.D.N.Y. Sept. 30, 2008) (“A state court case that initially is non-removable cannot
subsequently become removable or be transformed into a removable case unless a change occurs
that makes it removable as a result of the plaintiff’s voluntary act.” (internal quotation marks
omitted)); cf. Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) (per curiam)
(“[T]he removal clock does not start to run until the plaintiff serves the defendant with a paper
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The debatable nature of that proposition is further underscored in the federal question
removal context by the fact that, while the Fifth Circuit has held that a decision in one case could
count as a § 1446(b)(3) “order” in another where the cases involved shared defendants, factual
situations, and legal conclusions, Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 268 (5th
Cir. 2001), the Third Circuit rejected that approach, instead standing by its precedent holding
that, for an order in one case to permit removal in another, the first order, among other things,
must have “expressly authorized that same defendant to remove an action against it in another
case involving similar facts and legal issues,” A.S. ex rel. Miller v. SmithKline Beecham Corp.,
769 F.3d 204, 210 (3d Cir. 2014) (internal quotation marks omitted).
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that explicitly specifies the amount of monetary damages sought.” (emphasis added)). To view
this question differently and hold that a lawsuit brought by someone else could afford a basis for
removal would make the line of when a case is removable less bright. Cf. Cutrone v. Mortg.
Elec. Registration Sys., Inc., 749 F.3d 137, 143 (2d Cir. 2014) (discussing the Second Circuit’s
earlier holding in Moltner concerning the degree of precision as to requested damages required
for the defendant to understand that the case had become removable, and noting that “a bright
line rule is preferable to the uncertainties faced by defendants in determining removability”
(internal quotation marks omitted)).
Third, concluding that a filing in another action is not an “other paper” is most consistent
with the text of the statute. Indeed, § 1446(b)(3) says in pertinent part that “a notice of removal
may be filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which is
or has become removable.” In the context of such wording, “the generalized term ‘other paper’
appears to be limited by the three specific terms that precede it, all of which implicitly refer only
to documents generated in the same proceeding.” Connecticut v. McGraw Hill Cos., Inc., No.
13-CV-311, 2013 WL 1759864, at *4 (D. Conn. Apr. 24, 2013) (some internal quotation marks
omitted); see also Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586 (2008) (noting the
rule of ejusdem generis, which indicates that “when a statute sets out a series of specific items
ending with a general term, that general term is confined to covering subjects comparable to the
specifics it follows”). The Court thus believes it makes sense for the “other paper[s]” to be
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subject to a similar limitation, and, therefore, concludes that the summons and complaint in the
Town’s action cannot start the 30-day clock ticking.2
C. Consolidation Conference
Perhaps recognizing the difficulty of relying on a paper from outside the lawsuit,
Plaintiffs also note that the Parties, in fact, discussed consolidation in New York state court.
Specifically, Plaintiffs argue that
The separate actions were so related that on September 29, 2015, a conference was
held before the Hon. Catherine M. Bartlett, A.J.S.C. in the Orange County Supreme
Court where counsel for Plaintiffs, Defendant[,] and the Town of New Windsor
were present.
(Pls.’ Mem. 6.) Even to the extent that the putative discussion, in fact, occurred within the
context of this lawsuit, it would be a stretch to equate a purely oral conversation concerning the
extent of damages to an “other paper” for purposes of § 1446(b)(3). See, e.g., Quintana v.
Werner Enters., Inc., No. 09-CV-7771, 2009 WL 3756334, at *1 (S.D.N.Y. Nov. 2, 2009)
(“Under [§] 1446(b) . . . , an oral assertion is insufficient to start the 30-day clock for a
defendant’s removal petition, as the text of the statute refers to a pleading, motion, order, ‘or
other paper.’”); see also 14C Charles Alan Wright et al., Federal Practice and Procedure § 3731
(4th ed.) (“Courts ordinarily hold that oral statements do not trigger removability under the
second paragraph of [§] 1446(b) because such statements do not qualify as an ‘other paper.’”).
Nevertheless, some courts have held that in-court statements that are transcribed do qualify as an
“other paper.” See, e.g., Atwell v. Boston Sci. Corp., 740 F.3d 1160, 1162 (8th Cir. 2013)
(concluding that “oral statements, made at a court hearing and later transcribed, like deposition
2
The conclusion that documents from other cases do not count as “other paper[s]”
renders inapposite Plaintiffs’ citation to Lehman Bros. Holdings Inc. v. JPMorgan Chase Bank,
N.A., 77 F. Supp. 3d 376, 377 (S.D.N.Y. 2015), in which a case was rendered removable by
virtue of a cover letter accompanying a complaint.
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testimony, satisfy § 1446(b)(3)’s ‘other paper’ requirement”); Estate of Davis v. DeKalb County,
952 F. Supp. 2d 1369, 1371–73 (N.D. Ga. 2013) (remanding case to state court on the grounds
that, “even assuming that the amended complaint itself did not provide notice . . . , [the]
[d]efendants should have removed th[e] case within thirty days of July 11, 2012,” because, at a
“July 11, 2012, pre-trial conference[,] [the] [p]laintiffs made clear that the[ir] amended
complaint was intended to raise claims under 42 U.S.C. § 1983,” which provided a basis for
removability).
This latter point would certainly be a promising proposition for Plaintiffs—if only there
were any indication that the amount of damages came up at the September 29, 2015 conference.
However, the Second Circuit has been clear that “the time for removal runs from the service of
the first paper stating on its face the amount of damages sought.” Moltner, 624 F.3d at 38; see
also Santamaria v. Krupa, No. 15-CV-6259, 2015 WL 6760140, at *3 (E.D.N.Y. Nov. 5, 2015)
(concluding that “the “removal clock’ never began to run” where “the [c]ourt . . . conclude[d]
that [the] [p]laintiffs [did] not serve[] [the] [d]efendants with any paper that specifie[d] the
amount of damages sought”). In other words, because “defendants have no independent duty to
investigate whether a case is removable,” Cutrone, 749 F.3d at 143, even if it is true that (1) the
Parties discussed consolidation at September 29, 2015 conference, (2) that conversation counts
as an “other paper,” and (3) the summons and complaint in the case brought by the Town made it
unassailably clear that over $75,000 was at issue, there is still no basis to remove unless the
amount in controversy were made clear at that conference, see § 1446(b)(3) (noting that notice of
removal is to be “filed within 30 days after receipt by the defendant . . . of a copy of an amended
pleading, motion, order or other paper from which it may . . . be ascertained that the case
is . . . removable”). Of course, a defendant must still “apply a reasonable amount of intelligence
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in ascertaining removability,” Moltner, 624 F.3d at 37 (emphasis added) (internal quotation
marks omitted); however, there is simply no indication that any amount of intelligence applied to
anything said at the September 29, 2015 conference would have allowed Defendant to ascertain
the case’s removability. Therefore, absent some basis to believe that was the case, the Court
cannot conclude that the September 29, 2015 conference started the § 1446(b) clock. See id.
(“[T]he removal clock does not start to run until the plaintiff serves the defendant with a paper
that explicitly specifies the amount of monetary damages sought.”).
D. Defendant’s Putative Email and Draft Order of Stipulation
Finally, Plaintiffs point to two other writings which may qualify as an “other paper” for
purposes of § 1446(b)(3). First, in connection with the conference discussed above, according to
Plaintiffs, “a [s]tipulation consolidating both [the Town’s and Plaintiffs’] actions
against . . . Defendant, was drafted by Defendant’s counsel,” but “was never executed, . . . due to
the fact that counsel for the Town . . . had yet to file a [r]equest for [j]udicial [i]ntervention.”
(Pls.’ Mem. 6.) Second, in their Reply, Plaintiffs also stress that “Defendant was aware of
potential federal court jurisdiction more than [30] days prior to the Motion to Remove as
additionally shown by an e-mail between counsel for Defendant and [the] Town of New
Windsor.” (Pl.’s Reply ¶ 9.) In essence, Plaintiffs’ position with respect to these materials is
that documents written by Defendant demonstrate Defendant’s awareness that the case was
removable and thereby start the removal clock.
Even setting aside the question of whether Plaintiffs can appropriately first raise the issue
of Defendant’s e-mail in a reply memorandum, see Ernst Haas Studio, Inc. v. Palm Press, Inc.,
164 F.3d 110, 112 (2d Cir. 1999) (“[N]ew arguments may not be made in a reply brief . . . .”),
neither argument is ultimately availing. That is so because ample case law emphasizes that a
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court’s task in determining when the § 1446(b)(3) clock started does not entail an inquiry into a
defendant’s subjective knowledge. See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
494 (5th Cir. 1996) (finding that an affidavit created by the defendant’s counsel that specified the
amount in controversy as exceeding $100,000 was “based on the defendant’s subjective
knowledge,” and holding that “the affidavit, created entirely by the defendant, is not ‘other
paper’ under [§] 1446(b)”); State Farm Fire & Cas. Co. v. Valspar Corp., 824 F. Supp. 2d 923,
930 (D.S.D. 2010) (“[A] district court need not inquire into the subjective knowledge of the
defendant when determining when the defendant first ascertained the action had become
removable.”); Morrison v. Capital One Auto Fin., Inc., No. 10-CV-00490, 2010 WL 1688508, at
*1 (S.D.W. Va. Apr. 20, 2010) (“In determining whether the grounds for removal were
ascertainable from a motion, order or other paper, a court must not inquire into the subjective
knowledge of the defendant.” (internal quotation marks omitted)). And that, in essence, is what
Plaintiffs would have this Court do by considering the email (which neither states the amount in
controversy nor copies Plaintiffs’ counsel) or the draft stipulation (which the Court has not seen
and which no party has suggested indicated the amount of damages). Indeed, to genuflect to the
strength of Plaintiffs’ factual argument rather than insist on a statement of the amount in
controversy in a writing as required by the text of the rule would subvert the clear effort of the
Second Circuit and numerous courts to subjugate the § 1446(b) clock to an easily applied,
predictable, bright-line rule. See Cutrone, 749 F.3d at 143 (characterizing the Second Circuit’s
earlier decision in Moltner as “join[ing] the Eighth Circuit” in “drawing a bright line rule
requiring service of a document explicitly stating the amount in controversy to trigger either 30–
day period in . . . § 1446(b)” and quoting language from an Eighth Circuit decision that its rule
“‘promotes certainty and judicial efficiency by not requiring courts to inquire into what a
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particular defendant may or may not subjectively know "' (quoting In re Willis, 228 F.3d 896,
897 (8th Cir. 2000) (per curiam)); see also Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 697
(9th Cir. 2005) (noting that " [t]he jurisdictional and procedural interests served by a bright-line
approach are obvious" and explaining that "an objective baseline rule avoids the spect[er] of
inevitable collateral litigation over . .. whether [the] defendant had subjective knowledge [of
removability] or whether [the] defendant conducted sufficient inquiry"). Thus, Plaintiffs' efforts
to thwart removal on these grounds fall flat.
III. Conclusion
Therefore, for the foregoing reasons, Plaintiffs ' Motion to Remand is denied . The Clerk
of the Court is respectfull y requested to terminate the pending Motion. (See Dkt. No. 20.)
SO ORDERED.
Dated: White Plains, New York
Augu st ~ , 2016
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