Rech v. Monroe County et al
DECISION AND ORDER denying 4 Plaintiff's Motion to Remand to State Court. Defendants are instructed to file an amended notice of filing of notice of removal, properly attaching a copy of the Notice of Removal, with the Monroe County Supreme Court within five days of entry of this Decision and Order. (Copy of this Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 10/3/17. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsCOUNTY OF MONROE, DANIEL STROLLO,
MONROE COUNTY SHERIFFS DEPARTMENT, LT.
FAY, SGT. DERUYTER, DEPUTY D. PHILLIP,
DEPUTY KEN WEBER, and DEPUTY GEORGE
Plaintiff Michael Rech, acting pro se, commenced the instant
action in New York State Supreme Court, Monroe County (“Monroe
County Supreme Court”) on June 5, 2017.
purports to bring claims against defendants pursuant to 42 U.S.C.
§ 1983, the New York State Constitution, and the common law.
Plaintiff seeks to assert causes of action sounding in unlawful
harassment, and intentional and negligent infliction of emotional
On June 27, 2017, defendants filed a Notice of Removal seeking
to remove the action from Monroe County Supreme Court to this Court
under 28 U.S.C. § 1441.
Plaintiff subsequently filed a motion to
(1) defendants failed to comply with the procedural requirements
for effecting removal from state court and (2) this Court lacks
jurisdiction over the instant matter.
For the reasons discussed
below, plaintiff’s motion for remand is denied.
“Title 28, United States Code, section 1441 sets forth the
general federal statutory provision governing removals from state
to federal court. It provides that a defendant may remove to
federal court any civil action brought in a State court of which
jurisdiction.” Shapiro v. Logistec USA, Inc., 412 F.3d 307, 309–10
(2d Cir. 2005) (internal quotation omitted).
A party seeking to
remove an action from state court must “file in the district court
of the United States for the district and division within which
such action is pending a notice of removal signed pursuant to
Rule 11 of the Federal Rules of Civil Procedure and containing a
short and plain statement of the grounds for removal, together with
a copy of all process, pleadings, and orders served upon such
defendant or defendants in such action.”
28 U.S.C. § 1446(a).
notice of removal must be filed within 30 days “after receipt by or
service on that defendant of the initial pleading or summons.”
U.S.C. § 1446(b)(2)(B). Additionally, “[p]romptly after the filing
of such notice of removal of a civil action the defendant or
defendants shall give written notice thereof to all adverse parties
and shall file a copy of the notice with the clerk of such State
court, which shall effect the removal and the State court shall
28 U.S.C. § 1446(d).
Within 30 days of filing of the notice of removal, a plaintiff
28 U.S.C. § 1447(c). Where such a motion is made, “the defendant
bears the burden of demonstrating the propriety of removal.”
California Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d
86, 100 (2d Cir. 2004) (internal quotation omitted).
B. Defendants’ Procedural Error does not Require Remand
Plaintiff argues that remand back to state court in this
matter is required because defendants failed to comply with the
procedural requirements of 28 U.S.C. § 1446.
For the reasons
discussed below, the Court disagrees.
Defendants were served with the summons and complaint in this
matter on June 6, 2017, and filed their Notice of Removal with this
Court on June 27, 2017, well within the 30 day statutory deadline.
Also on June 27, 2017, defendants filed a Notice of Filing of
Notice of Removal (the “Notice of Filing”) in Monroe County Supreme
Defendants concede that they mistakenly failed to attach a
copy of the Notice of Removal to the Notice of Filing.
Pursuant to 28 U.S.C. § 1446(d), defendants were required to
file a copy of the Notice of Removal with the state court “promptly
after filing it in this Court.
This case would be an easy one had
defendants filed a copy of the Notice of Removal with the state
court upon discovering their error.
The removal statute gives no
definition of “promptly,” and courts in this Circuit “have held
that delays of more than a month in either filing the notice of
removal with the state court or providing plaintiffs with written
notice do not necessarily require remand.” Ynoa v. Kutner, 2011 WL
1796320, at *2 (S.D.N.Y. May 5, 2011) (collecting cases).
example, in Manufacturers & Traders Tr. Co. v. Hartford Acc. &
Indem. Co., 434 F. Supp. 1053 (W.D.N.Y. 1977), plaintiff did not
file a copy of the Notice of Removal with the state court until 45
days after it was filed in federal court.
Id. at 1055.
denied plaintiff’s motion for remand, explaining that “the filing
ministerial act, failure of which does not defeat the federal
court’s jurisdiction,” and that “the word ‘promptly’ has not been
construed to mean simultaneously.” Id. In this case, however, the
issue is not a lengthy delay in filing the Notice of Removal - the
issue is that a copy of the Notice of Removal was never filed with
the state court at all.
Accordingly, the Court must consider the
more difficult question of whether the failure to comply with one
of the requirements of 28 U.S.C. § 1446 necessitates remand.
“[G]enerally speaking, the requirements of [28 U.S.C. § 1446]
must be complied with before removal is effective.
these conditions, [the Court] must presume that Congress intended
However, the Second Circuit has acknowledged that “the reason for
filing the petition for removal with the clerk of the state . . .
is to inform the state  judge that he can no longer proceed with
the case until the federal court decides whether it will retain
jurisdiction or not.
There can be no other purpose for this
U. S. ex rel. Echevarria v. Silberglitt, 441 F.2d
225, 227 (2d Cir. 1971) (internal quotation omitted). Accordingly,
at least one circuit court has concluded that constructive notice
to the state court is sufficient to satisfy the requirements of
28 U.S.C. § 1446.
See Medrano v. State of Tex., 580 F.2d 803, 804
(5th Cir. 1978) (“even constructive notice” under 28 U.S.C. § 1446
is “sufficient to deprive the state court of jurisdiction”); cf.
Gomes v. ANGOP, Angola Press Agency, 2012 WL 3637453, at *6
(E.D.N.Y. Aug. 22, 2012), aff’d sub nom. Gomes v. ANGOP, 541
F. App'x 141 (2d Cir. 2013) (finding the requirements of 28 U.S.C.
§ 1446 met where defendants served the notice of removal on the
wrong address but plaintiff received constructive notice within
days of its filing).
Here, as defendants note, Monroe County Supreme Court was
plainly put on constructive notice by the Notice of Filing that
this action had been removed to federal court.
essential purpose of 28 U.S.C. § 1446 (d) was fulfilled, and remand
is not required. See Manufacturers & Traders Tr. Co., 434 F. Supp.
at 1055 (“while defendant’s admitted negligence in complying with
the statute cannot readily be excused, it should not stand as a bar
to further proceedings”).
In particular, the fact that plaintiff
was promptly served with a copy of the Notice of Removal persuades
the Court that no prejudice has occurred.
See id. (“The prompt
notice of filing given to the plaintiff operates as a saving factor
in this instance.”) (internal quotation omitted).
However, in the interest of ensuring clarity for the state
court, defendants are instructed to file an amended notice of
filing of notice of removal, properly attaching a copy of the
Notice of Removal, with the Monroe County Supreme Court within five
days of entry of this Decision and Order.
The Court has Jurisdiction over this Case
Plaintiff has also argued that the Court lacks jurisdiction
over this matter.
This argument is plainly without merit.
Plaintiff’s complaint states that the claims therein are
predicated, in part, on 42 U.S.C. § 1983, a federal statute.
constitutional right to be free from unreasonable searches and
seizures was violated by defendants.
This Court has original
Constitution, laws, or treaties of the United States.”
§ 1331. The Court therefore indisputably has original jurisdiction
over plaintiff’s claims premised on § 1983 and/or the Constitution.
The Court also has supplemental jurisdiction over plaintiff’s
related state law claims.
28 U.S.C. § 1367(a).
therefore met their burden of showing that removal was proper.
For the foregoing reasons, plaintiff’s motion for remand
(Docket No. 4) is denied.
Defendants are instructed to file an
amended notice of filing of notice of removal, properly attaching
a copy of the Notice of Removal, with the Monroe County Supreme
Court within five days of entry of this Decision and Order.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
October 3, 2017
Rochester, New York.
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