Bcat Reo LLC v. Gordon
Decision Date | 24 September 2015 |
Docket Number | 15-CV-5093 (SJF)(AKT) |
Parties | BCAT REO LLC, grantee under deed from U.S. BANK NATIONAL ASSOCIATION, as trustee for MERRILL LYNCH MORTGAGE INVESTORS TRUST, SERIES 2010-NP1, Petitioner, v. PATRICIA GORDON and BARBARA POWELL, Respondents. |
Court | U.S. District Court — Eastern District of New York |
In or about March 25, 2015, petitioner BCAT REO LLC ("BCAT") commenced this holdover proceeding against respondents Patricia Gordon ("Gordon") and Barbara Powell ("Powell") (collectively, "respondents") in the First District Court of the State of New York, County of Nassau, Landlord-Tenant Division ("state court"), seeking to evict respondents from the premises located at 561 Kirkby Road, Elmont, New York ("the subject premises"). (See Pet. for Removal at 38-39). On August 26, 2015, Gordon, acting pro se, filed: (1) a Notice of Removal removing the proceeding to this Court pursuant to, inter alia, 28 U.S.C. § 1441 on the basis that this Court has (a) original jurisdiction under 28 U.S.C. § 1332(a), (see Pet. for Removal at 2), and (b) supplemental jurisdiction under 28 U.S.C. § 1367 because she had previously commenced a purportedly related proceeding against BCAT, and others, in this Court seeking to quiet title to the subject premises, Gordon v. First Franklin Financial Corp., et al., No. 15-CV-00075(SJF)(AKT); and (2) an application to proceed in forma pauperis. Since Gordon's financial status, as set forth in her application to proceed in forma pauperis, qualifies her to commence this proceeding in this Court without prepayment of the filing fee, see 28U.S.C. §§ 1914 and 1915(a), the application to proceed in forma pauperis is granted. However, for the reasons set forth below, the proceeding is sua sponte remanded to the state court pursuant to 28 U.S.C. § 1447(c).
Pursuant to 28 U.S.C. § 1441, " . . . any 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), but ". . . [a] civil action otherwise removable solely on the basis of [diversity of citizenship] jurisdiction . . . may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2); see also Lincoln Property Co. v. Roche, 546 U.S. 81, 90, 126 S.Ct. 606, 163 L. Ed. 2d 415 (2005) () Since this case does not present a federal question over which this Court has original jurisdiction, and Gordon is a citizen of the State of New York, (see Pet. for Removal at 3), where this proceeding is brought, removal was clearly improper under 28 U.S.C. § 1441.
Although Gordon also asserts this Court's supplemental jurisdiction under 28 U.S.C. § 1367 as a basis for removal, (see Pet. for Removal at 2), 28 U.S.C. § 1367 "cannot independently support removal." Akers v. Barrett, No. 14-cv-501-A, 2014 WL 3778591, at *2 (W.D.N.Y., July 30, 2014); see also Motion Control Corp. v. SICK, Inc., 354 F.3d 702, 706 (8th Cir. 2003)("[A]ncillary jurisdiction does not authorize removal under § 1441."); Sovereign Bank, N.A. v. Lee, 968 F. Supp. 2d 515, 518 (E.D.N.Y., 2013) (); Port Authority of New York and New Jersey v. Allianz Ins. Co., 443 F. Supp. 2d 548, 555 (S.D.N.Y., 2006) () McClelland v. Longhitano, 140 F. Supp. 2d 201, 203 (N.D.N.Y. 2001) ( ) "Thus, 'a removal petition ... may not base subject-matter jurisdiction on the supplemental [] jurisdiction statute, even if the action which a defendant seeks to remove is related to another action over which the federal district court already has subject-matter jurisdiction, and even if removal would be efficient.'" Akers, 2014 WL 3778591, at *2 (quoting Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 456 (6th Cir.1996)); accord Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 294-95 (5th Cir. 2010); Port Authority, 443 F. Supp. 2d at 555.
28 U.S.C. § 1446(b). In addition, subsection (b)(2)(A) provides that "[w]hen a civil action is removed solely under section 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(b)(2)(A).
"[S]tatutory procedures for removal are to be strictly construed," Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002), and any doubts must be resolved against "removability" "out of respect for the limited jurisdiction of the federal courts and the rights of states. . . ." In re Methyl Tertiary Butyl Ether ("MTBE") Products Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007). "[T]he burden is on the removing party to prove that it has met the requirements for removal." Ulysse v. AAR Aircraft Component Servs., 841 F. Supp. 2d 659, 666 (E.D.N.Y. 2012) (quotations and citation omitted).
Gordon has not demonstrated that her Notice of Removal was timely filed within the thirty (30)-day period prescribed by 28 U.S.C. § 1446(b)(1), as the initial pleading was filed in the state court approximately five (5) months before she filed the Notice of Removal and she does not indicate when she received either a copy thereof or a summons. Moreover, although Gordon indicated in the Notice of Removal that "all of the process and pleadings served in this matter are attached [thereto]," (Pet. for Removal at 4), she clearly did not attach a copy of the affidavit of service indicating when she received the initial pleading or summons in thisproceeding1; nor does she indicate whether she attached all orders of the state court to the Notice of Removal. Indeed, no orders of the state court are attached to the Notice of Removal, even though Gordon apparently filed an order to show cause to dismiss or stay the state court proceeding in July 2015. (See Pet. for Removal, Ex. C). Thus, Gordon also failed to establish that she met the requirements of 28 U.S.C. § 1446(a).
Furthermore, Gordon has not established that she met the requirements of 28 U.S.C. § 1446(b)(2)(A), as she does not indicate whether Powell, her co-defendant, "join[s] in or consent[s] to the removal of the [proceeding]" to this Court. Accordingly, this action is sua sponte remanded to the state court pursuant to 42 U.S.C. § 1447(c). See Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006) ( ); accord Hamilton v....
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