Buczek et al v. Giglio et al

Filing 7

DECISION AND ORDER GRANTING Plaintiffs' 2 Motion to Proceed In Forma Pauperis; DENYING Defendants' 3 Motion for Sanctions; DENYING as MOOT Defendants' 4 Motion to Dismiss; GRANTING Defendants' 5 Motion to Remand; DIRECTIN G the Clerk of Court to TRANSFER this case to the New York State Supreme Court, County of Erie, and then CLOSE this case; DENYING leave to appeal as a poor person. Signed by William M. Skretny, United States District Judge on 5/14/2017. (MEAL) Copies mailed to Plaintiffs. - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL RICHARD BUCZEK and
DEBORAH ANN BUCZEK,
Plaintiffs,
v.

DECISION AND ORDER
16-CV-847S

DAVID M. GIGLIO, ET AL.,
Defendants.

I. INTRODUCTION
Presently before this Court is a Notice of Removal and Motion for Leave to
Proceed In Forma Pauperis filed by pro se Plaintiffs Daniel Richard Buczek and
Deborah Ann Buczek. (Docket Nos. 1 and 2.) Because the Buczeks meet the statutory
requirements of 28 U.S.C. § 1915(a), their request to proceed in forma pauperis will be
granted. 1 The granting of this status triggers the screening provisions in 28 U.S.C. §
1915 (e)(2)(B).
Also before this Court are three motions filed by Defendants: a Motion for
Sanctions; a Motion to Dismiss; and a Motion to Remand.

(Docket Nos. 3, 4, 5.)

Because this Court finds no basis for the Buczeks’ removal of this action, Defendants’
Motion to Remand will be granted, and this case will be returned to the New York State
Supreme Court, County of Erie, the forum from which it was improperly removed.
Defendants remaining two motions will be denied.

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The affirmation in support of the Buczeks’ Motion to Proceed In Forma Pauperis was signed by only
Deborah Buczek. Therein, she attests that neither she nor Daniel Buczek are employed or derive
substantial income from any source. In light of that representation, and in the interests of judicial
expediency since this case will be remanded, in forma pauperis status is granted as to both plaintiffs.

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II. BACKGROUND
On September 29, 2016, Defendant David M. Giglio, an attorney, filed a civil
action in state court against the Buczeks on behalf of Defendants Rashawn Bell, Alexis
McCullen, and Bernice Bell. (Affirmation of David M. Giglio (“Giglio Affirm.”), Docket No.
5, ¶ 3.) The state suit asserts claims and seeks damages under New York law against
the Buczeks for injuries suffered as a result of exposure to lead paint while Defendants
Rashawn Bell and Alexis McCullen, while children, lived at or visited property owned by
the Buczeks. (Giglio Affirm., ¶ 5.) No federal claims are asserted in the state action.
On October 24, 2016, the Buczeks removed the state action to this Court by filing
a Notice of Removal. (Docket No. 1.) The Notice of Removal is premised on the
existence of federal-question jurisdiction under 28 U.S.C. § 1331.

Specifically, the

Buczeks allege that this case implicates a claim under the False Claims Act (“FCA”), 31
U.S.C. § 3729, et seq.
On November 17, 2016, Defendants filed the three motions identified above,
seeking sanctions, dismissal, and remand. (Docket Nos. 3, 4, 5.)
III. DISCUSSION
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Since the Buczeks are proceeding pro se, this Court has considered their submissions
and arguments accordingly.

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Under 28 U.S.C. § 1915 (e)(2)(B), a court must dismiss a case in which in forma
pauperis status has been granted if, at any time, the court determines that the action (i)
is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief. If the
court plainly lacks jurisdiction to consider the complaint, dismissal of the complaint as
“frivolous” under 28 U.S.C. § 1915 (e)(2) is proper. See McGann v. Comm’r, Soc. Sec.
Admin., 96 F.3d 28, 30 (2d Cir. 1996). Here, this Court lacks jurisdiction to consider the
complaint because removal jurisdiction is lacking.
A civil action brought in state court may be removed by a defendant to a federal
district court of original jurisdiction. 28 U.S.C. § 1441 (a). District courts have original
jurisdiction over all civil actions arising under the Constitution, treaties, or laws of the
United States, and over all civil actions between citizens of different states, if the
amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332(a)(1).
To effectuate removal, a notice of removal must be filed “within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is based . . . .” 28
U.S.C. § 1446 (b). This 30-day filing period, “while not jurisdictional, is mandatory and
failure to comply with it will defeat a defendant’s removal petition.” Nicola Prods. Corp.
v. Showart Kitchens, Inc., 682 F. Supp. 171, 172 (E.D.N.Y. 1988). And “absent waiver
or estoppel, the thirty day period cannot be extended by court order, stipulation of the
parties, or otherwise.” Id. at 173. In addition, when, as here, a civil action is removed
under 28 U.S.C. § 1441 (a), “all defendants who have been properly joined and served
must join in or consent to the removal of the action.” 28 U.S.C. § 1446 (2)(a). Remand

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of a removed action is required “[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447 (c).
Out of respect for states’ rights and in keeping with the limited jurisdiction of
federal courts, removal jurisdiction is “strictly construed,” with all doubts resolved
against removal. Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S. Ct. 366,
154 L. Ed. 2d 368 (2002); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.,
488 F.3d 112, 124 (2d Cir. 2007). The removing party bears the burden of establishing
proper jurisdiction. United Food & Commercial Workers Union v. Centermark Props.
Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).
In the absence of diversity jurisdiction, such as in this case, “the propriety of
removal turns on whether the case falls within the original ‘federal question’ jurisdiction
of the United States district courts.” Franchise Tax Bd. of State of Cal. v. Constr.
Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8, 103 S. Ct. 2841, 77 L. Ed. 2d 420
(1983). District courts have original jurisdiction “of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Thus, a civil
action filed in state court may be removed to a federal court if it asserts claims “arising
under” federal law. See 28 U.S.C. § 1441(b).
A claim arises under federal law if “a well-pleaded complaint establishes either
that federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on resolution of a substantial question of federal law.” Franchise
Tax, 463 U.S. at 27-28; Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.
677, 126 S. Ct. 2121, 165 L. Ed. 2d 131 (2006) (reiterating Franchise Tax standard).
Importantly, it is the plaintiff’s complaint that determines whether the case arises under

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federal law: “federal jurisdiction exists only when a federal question is presented on the
face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987); Franchise Tax, 463 U.S. at 10;
Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S. Ct. 724, 58 L. Ed. 1218 (1914). “[A] right
or immunity created by the Constitution or laws of the United States must be an
element, and an essential one, of the plaintiff’s cause of action.” Gully v. First Nat’l
Bank, 299 U.S. 109, 112, 57 S. Ct. 96, 97, 81 L. Ed. 70 (1936). This preserves the
plaintiff’s role as “master of the complaint, free to avoid federal jurisdiction by pleading
only state claims even where a federal claim is also available.” Marcus v. AT&T Corp.,
138 F.3d 46, 52 (2d Cir. 1998).
Consequently, the existence or assertion of a federal defense does not give rise
to federal-question jurisdiction. See Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124
S. Ct. 2488, 159 L. Ed. 2d 312 (2004); City of Rome, N.Y. v. Verizon Commc’ns Inc.,
362 F.3d 168, 175 (2d Cir. 2004). “[A] defense that relies on the preclusive effect of a
prior federal judgment, or the pre-emptive effect of a federal statute, will not provide a
basis for removal.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058,
156 L. Ed. 2d 1 (2003) (citations omitted). Moreover, “the mere presence of a federal
issue in a state cause of action does not automatically confer federal-question
jurisdiction.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813, 106 S. Ct.
3229, 92 L. Ed. 2d 650 (1986). A case is therefore generally not removable unless the
complaint itself affirmatively alleges a federal claim. Beneficial Nat’l Bank, 539 U.S. at
6.

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Here, although the Buczeks’ Notice of Removal is timely, it is abundantly clear
that there is no basis for removal jurisdiction. The state court negligence action against
the Buczeks does not implicate any federal questions. The FCA, which the Buczeks
cite as the basis for federal-question jurisdiction, applies to false or fraudulent claims
submitted to the federal government for payment. See Mikes v. Straus, 274 F.3d 687,
695 (2d Cir. 2001).

It has no application in this suit whatsoever. 2

Consequently,

because there is no federal question, remand is required.
Because remand is required, Defendants’ Motion to Dismiss for failure to state a
claim will be denied as moot. Defendants’ Motion for Sanctions under Rule 11 of the
Federal Rules of Civil procedure will also be denied as a matter of discretion, though the
Buczeks are warned that further frivolous removals or frivolous filings of civil actions
may result in the imposition of sanctions against them. See, e.g., Fed. R. Civ. P. 11 (c)
(permitting the imposition of sanctions against pro se litigants); 28 U.S.C. § 1447 (c)
(“An order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.”)
IV. CONCLUSION
As explained above, there is no basis for the Buczeks’ removal of this action and
therefore no proper removal jurisdiction. Remand of this case to the New York State
Supreme Court, County of Erie, is therefore required.

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The Buczeks appear to assert that Giglio violated the False Claims Act by filing the suit against them in
state court with “no firsthand knowledge” and relying on “forged documents in courts and public records.”
(Notice of Removal, Docket No. 1, p. 3.) These accusations, unsupported by any factual assertions, have
nothing to do with the False Claims Act nor do they give rise to removal jurisdiction premised on a federal
question.

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V. ORDERS
IT HEREBY IS ORDERED, that Plaintiffs’ Motion to Proceed In Forma Pauperis
(Docket No. 2) is GRANTED.
FURTHER, that Defendants’ Motion for Sanctions (Docket No. 3) is DENIED.
FURTHER, that Defendants’ Motion to Dismiss (Docket No. 4) is DENIED AS
MOOT.
FURTHER, that Defendants’ Motion to Remand (Docket No. 5) is GRANTED.
FURTHER, that the Clerk of Court is directed to TRANSFER this case to the
New York State Supreme Court, County of Erie, and then CLOSE this case.
FURTHER, that this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Rule
24 (a)(3) of the Federal Rules of Appellate Procedure, that any appeal from this
Decision and Order would not be taken in good faith and therefore leave to appeal as a
poor person is DENIED. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917,
8 L. Ed. 2d 21 (1962).
SO ORDERED.

Dated:

May 14, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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