Kennedy v. Rockwell

Filing 20

OPINION and ORDER: 4 Motion to Remand to State Court is GRANTED and this case is REMANDED to the hearing panel to which it was assigned by the Professional Responsibility Board. 15 Motion for Extension of Time to File Supplemental Pleadings and [ 17] SECOND MOTION for Extension of Time to File Physician's Letter are GRANTED nunc pro tunc ; 16 Motion Abstain from Remand and 19 Motion to Take Judicial Notice of Letter of Robert E. Gardiner, M.D. are DENIED as moot. Signed by District Judge J. Garvan Murtha on 8/21/2012. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Michael Kennedy

:
:
:
:
:

v.
Susan Rockwell

Case No. 1:12-cv-36

OPINION AND ORDER
(Docs. 4, 15, 16, 17 and 19)
Susan Rockwell, an attorney proceeding in this case pro se, is
the subject of a disability proceeding being brought by Vermont
Disciplinary Counsel Michael Kennedy.

That proceeding was

initiated in the Vermont Supreme Court, and was subsequently
assigned to a hearing panel of the Vermont Professional
Responsibility Board.
Rockwell commenced this case by filing a Notice of Removal and
removing the disability proceeding to this Court.

Her Notice of

Removal includes a series of counterclaims, some of which allege
violations of federal law.

Kennedy has filed a motion to remand.

For the reasons set forth below, the motion to remand is GRANTED,
and this case is REMANDED to state court.
Factual Background
In October 2011, Kennedy opened a disciplinary investigation
into Rockwell’s conduct as an attorney.

He subsequently petitioned

the Vermont Supreme Court for the immediate interim suspension of
Rockwell’s law license.

On November 29, 2011, the Vermont Supreme

Court, acting under its own administrative procedures, granted the
petition.
On December 13, 2011, Kennedy filed a petition to commence
formal disability proceedings (“Petition”) against Rockwell in the
Vermont Supreme Court.

On January 3, 2012, Kennedy sent a copy of

the Petition to Rockwell via certified mail.

Rockwell signed for

receipt of the Petition on January 19, 2012.
In an Entry Order dated January 11, 2012, the Vermont Supreme
Court directed the Professional Responsibility Board (“Board”) to
appoint a hearing panel to hear the Petition.

The court also

authorized the Board to appoint counsel for Rockwell.

The Petition

was assigned to a hearing panel on January 17, 2012, and counsel
was appointed on February 1, 2012.
On February 22, 2012, this Court received Rockwell’s pro se
Notice of Removal.

The Notice bears the docket number of the state

court proceeding, names Kennedy as the petitioner, and contends
that removal is proper because “this case . . . arose under
violations of the Americans With Disabilities Act” and various
constitutional provisions.

(Doc. 1 at 1.)

The Notice also asserts

counterclaims alleging denial of access to the courts; libel per
se; illegal searches; “reprisal” for protected speech; breach of
confidentiality; civil rights allegations; and a wrongful “bill of
attainder.”

Id. at 14.

For relief, Rockwell seeks a retraction of

defamatory statements, an order requiring an end to all state
investigations, and damages.

Id. at 15.
2

On March 13, 2012, Rockwell filed an Amended Notice of Removal
and Amended Counterclaim, again alleging violations of her federal
constitutional rights and the Americans with Disabilities Act.

The

Amended Notice also details various filings and other events that
occurred during the thirty-day period prior to her amendment.
(Doc. 8 at 4-6.)
Kennedy moves to remand the case, arguing Rockwell did not
file her Notice of Removal in a timely fashion, and that there is
no basis for federal jurisdiction.

In the alternative, Kennedy

contends the Court should abstain under the doctrine set forth in
Younger v. Harris, 401 U.S. 37 (1971).
Discussion
I.

Timeliness
A defendant must file a notice of removal “within thirty days

after the receipt by the defendant, through service or otherwise,
of a copy of the initial pleading . . . .”

28 U.S.C. § 1446(b)(1).

Rockwell received the Petition by certified mail, restricted
delivery, on January 19, 2012.

She dated and filed her Notice of

Removal thirty-four days later, on February 22, 2012.
The thirty-day deadline for removal is “rigorously” enforced.
Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir.
1991) (“[A]bsent a finding of waiver or estoppel, federal courts
rigorously enforce the statute’s thirty-day filing requirement.”);
see Evans v. Sroka, 2001 WL 1160586, at *3 (S.D.N.Y. Oct. 2, 2001)
(“This time limit, although not jurisdictional, is strictly
3

construed and mandatorily enforced.”)

If there is a defect in the

removal procedure, courts are authorized to remand a case to the
state court in which the action originated.

28 U.S.C. § 1447(c);

see also LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31
F.3d 70, 72 (2d Cir. 1994).

While a procedural defect in removal

does not deprive a federal court of jurisdiction, all doubts as to
the procedural validity of removal will be resolved in favor of
remand.

See Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432,

437 (S.D.N.Y. 2006); see also Codapro Corp. v. Wilson, 997 F. Supp.
322, 325 (E.D.N.Y. 1998) (stating that “[t]here is nothing in the
removal statute that suggests that a district court has
‘discretion’ to overlook or excuse prescribed procedures.”
(internal quotation marks and citation omitted)).

The removing

party bears the burden of demonstrating that the removal was
procedurally proper.

See Wilds v. United Parcel Serv., Inc., 262

F. Supp. 2d 163, 171 (S.D.N.Y. 2003) (citing Hodges v. Demchuk, 866
F. Supp. 730, 732 (S.D.N.Y. 1994)).
Here, Rockwell failed to file her Notice of Removal within
thirty days of service as required by statute.

In an apparent

response to the motion to remand, Rockwell’s Amended Notice of
Removal contends that removal was timely because “request[s],
motion[s], and orders” were filed in the state proceeding during
the thirty days prior to her amendment.

(Doc. 8 at 2.)

This

argument is misplaced, as a removal notice must be filed within

4

thirty days of receipt of the initial pleading, not within thirty
days of subsequent motions or orders.

See 28 U.S.C. § 1446(b)(1).

Rockwell’s citation to 28 U.S.C. § 1446(b)(3) is also
misplaced, since that section applies to amended pleadings,
motions, or orders “from which it may be first ascertained that the
case is one which is or has become removable.”
1446(b)(3).

28 U.S.C. §

Rockwell’s initial Notice of Removal argued that her

federal rights had been violated, and her Amended Notice of Removal
merely adds to those claims, alleging essentially similar, though
more recent, violations.

This sort of amendment does not re-start

the thirty-day clock under § 1446(b)(3).

See Grievance Comm. For

Tenth Judicial Dist. v. Pollack, 669 F. Supp. 2d 454, 457 (S.D.N.Y.
2009).

The Court therefore finds that removal of this case was

untimely.
II.

Propriety of Removal
Even assuming that the Notice of Removal had been timely

filed, this case would need to be remanded for lack of subject
matter jurisdiction.

Rockwell alleges that the Court has federal

question jurisdiction, citing 28 U.S.C. § 1331.

A court has

federal question jurisdiction in “[a]ny civil action of which the
district courts have original jurisdiction founded on a claim or
right arising under the Constitution, treaties or laws of the
United States shall be removable.”

28 U.S.C. § 1441 (2006).

Whether a claim arises under federal law is generally governed by
the well-pleaded complaint rule, which provides for federal
5

jurisdiction only when the complaint affirmatively alleges a
federal claim.

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,

6,(2003); see Citigroup, Inc. v. Wachovia Corp., 613 F. Supp. 2d
485, 489-90 (S.D.N.Y. 2009).
In this case, the underlying Petition was filed with the
Vermont Supreme Court pursuant to that court’s Administrative Order
9.

Invoking a specific Rule within Administrative Order 9, the

Petition sought a review of Rockwell’s performance as an attorney.
The Petition made no reference to federal law.

Accordingly, the

Petition did not establish a basis for federal question
jurisdiction.

See, e.g., Pollack, 669 F. Supp. 2d at 458;

In re

Bogart, 386 F. Supp. 126, 130 (S.D.N.Y. 1974) (holding that
proceedings under New York law for admission to and removal from
practice are not removable pursuant to 28 U.S.C. § 1441 because
they are not “founded on a claim or right under the Constitution,
treaties or laws of the United States” (internal quotation marks
omitted)).
Questions of federal law first entered into this case through
Rockwell’s counterclaims to the Petition.

The Supreme Court has

made clear, however, that “a counterclaim – which appears as part
of the defendant’s answer, not as part of the plaintiff’s complaint
– cannot serve as the basis for ‘arising under’ jurisdiction.”
Holmes Group, Inc. v. Vornado Air Circulation Sys., 535 U.S. 826,
831 (2002).

As noted above, a suit “‘arises under’ federal law

‘only when the plaintiff’s statement of his own cause of action
6

shows that it is based on [federal law].’”

Vaden v. Discovery

Bank, 556 U.S. 49, 60 (2009) (quoting Louisville & Nashville R. Co.
v. Mottley, 211 U.S. 149, 152 (1908)).
Furthermore, 28 U.S.C. § 1441(a) authorizes removal of “any
civil action brought in a State court . . . .”

28 U.S.C. § 1441.

Under Vermont law, a petition brought by Disciplinary Counsel “is
neither civil nor criminal; rather, it is sui generis.”
Berk, 602 A.2d 946, 948 (Vt. 1991).

In re

This characterization of

disciplinary proceedings – as neither civil nor criminal – has been
adopted by “[a]n overwhelming majority of courts.”

Matter of

Gorence, 810 F. Supp. 1234, 1235-36 (D.N.M. 1992) (collecting
cases).

The proceeding at issue in this case is, therefore, not a

“civil action” subject to removal under 28 U.S.C. § 1441.

Cf.

Matter of Doe, 801 F. Supp. 478, 481-85 (D.N.M. 1992) (holding that
attorney disciplinary proceeding could not be removed as a “civil
action” or “criminal prosecution” under 28 U.S.C. § 1442).

As

the Second Circuit has observed,
the integrity of the bar is of public concern and the
state which licenses those who practice in its courts,
and which is the only body that can impose sanctions upon
those admitted to practice in its courts, should not be
deterred or diverted from the venture by the interloping
of a federal court.
Anonymous v. Assoc. of the Bar of City of New York, 515 F.2d 427,
432 (2d Cir. 1975).

In keeping with this general principle, and

consistent with the case law, the Court finds that even if Rockwell
had filed a timely Notice of Removal, the Petition cannot be

7

removed.

This matter must therefore be REMANDED to the hearing

panel before which it was pending.
Conclusion
For the reasons set forth above, Kennedy’s motion to remand
(Doc. 4) is GRANTED, and this case is REMANDED to the hearing panel
to which it was assigned by the Professional Responsibility Board.
Rockwell’s motions for extension of time (Docs. 15 and 17) are
GRANTED nunc pro tunc.

Her motion to abstain from remand (Doc. 16)

and motion for the Court to take judicial notice of a letter from
Robert E. Gardiner, M.D. (Doc. 19) are DENIED as moot.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 21st
day of August, 2012.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

8