Citibank, N.A. v. Swiatkowski

• Decision Date: 21 February 2012
• Docket Number: No 12-cv-0196 (JFB) (ETB),12-cv-0196 (JFB) (ETB)
• Parties: CITIBANK, N.A. Plaintiff, v. MICHAL SWIATKOWSKI, LIDIA SWIATKOWSKI, AND BETINA KOCH Defendants.
• Court: U.S. District Court — Eastern District of New York

CITIBANK, N.A. Plaintiff,

v.MICHAL SWIATKOWSKI, LIDIA SWIATKOWSKI, AND BETINA KOCH Defendants.

No 12-cv-0196 (JFB) (ETB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date: February 21, 2012

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

The above-entitled action was removed from state court by defendant Lidia Swiatkowski ("Swiatkowski"). Plaintiff Citibank, N.A. ("Citibank") submitted a letter requesting that the Court sua sponte remand the action to state court on the grounds that, inter alia, the Court lacks subject matter jurisdiction and Swiatkowski's removal of the action was untimely. For the reasons that follow, the Court sua sponte remands the action to state court.

I. BACKGROUND

A. Factual Background

1. Swiatkowski's Removal

The state court action involves Citibank's eviction of Swiatkowski and other defendants.¹ In the papers requesting removal, Swiatkowski did not attach Citibank's complaint in the state court action. Rather, Swiatkowski filed a "Petition for Removal" which states,

Petitioner in the above case is a respondent in the Lower Courtcase, a native of the United States of America residing in the Eastern District of New York, pro se, her[eby] petitions for the removal of the above actions under the following Index No.: LT-004547-11 from the DISTRICT COURT OF NASSAU COUNTY, FIRST DISTRICT: HEMPSTEAD, with Citibank, N.A. as petitioner in the Landlord Tenant Action, on the following grounds:

The Proceeding was filed in the District Court of Nassau County, First District: Housing Part on August 9, 2011 and has become removable pursuant to 28 [U.S.C. §] 1446. This Court has jurisdiction pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1343; in that there is a federal question that exceeds $100,000.00 under the Constitution and laws of the United States, and that the action seeks monetary damages in excess of $100,000.00.

(Petition for Removal at 3-4, Jan. 17, 2012, ECF No. 1.)² Swiatkowski's Petition for Removal also lists several other sections of the United States Code that purportedly give the Court jurisdiction over this action.³

Under the "Statement of Claim" heading, Swiatkowski states that on August 9, 2011, Citibank "filed an action Index No.:LT-004547-11 with the District Court of Nassau County, First District: Housing Part as an Owner seeking a removal of Petitioner as tenants." (Id. at 6, ¶ 5.) Swiatkowski continues, "On September 16, 2011 during the procedures of the Court, the court denied Petitioners legal representation[.] It also denied the court translator for Petitioners even though they clearly stated that one of them is hearing impaired and is not aware fully of the court proceedings." (Id. at 6, ¶¶ 6-7.) Swiatkowski continues, "Petitioners seek removal to enforce the stated federal statutes because the state court cannot, is unwilling, or that an extra-judicial climate exists that is prejudicial to Petitioners' civil rights and the enjoyment of their constitutional rights because racial, ethnic or religious or other bias." (Id. at 6-7, ¶ 8.)

Swiatkowski also states "Respondent's] attempt[ ] to proceed to eviction without standing violated Petitioner['s] rights. The request for examination of Petitioner['s] standing as tenant and Respondent['s] as owners fell on deaf ears during the court proceedings as the court denied the jurisdiction to review the motion." (Id. at 7, ¶¶ 10-11.) Swiatkowski states that "thirty days have not elapsed since the action has become removable through service or otherwise of a copy or a summons and complaint, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. Such event occurred on January 13, 2012." (Id. at 7, ¶ 12.)

2. Citibank's Response

By letter dated January 20, 2012, Citibank submitted a letter requesting that the Court sua sponte remand the action to state court. In the letter, Citibank explains that the state court eviction proceeding was commenced on August 20, 2011, when the eviction petition was served. (Pl.'s Letter, Jan. 23, 2012, ECF No. 2.) Citibank submitted the state court "Notice of Petition - Holdover" dated August 4, 2011, and the affidavit of service dated August 22, 2011 which indicated service of the Petition and Notice of Petition on August 20, 2011. (Pl's Letter Attachment at 6-7, Jan. 23, 2012, ECF No. 2-1.)⁴

Citibank also states that Swiatkowski and the state court defendants appeared in the Nassau County District Court, First District Housing Park, whereby the matter was tried on the merits on October 4, 2011, and a Judgment of Possession was entered on October 13, 2011. (Pl.'s Letter, Jan. 23, 2012, ECF No. 2.) Citibank also includes copies of the Judgment (Pl's Letter Attachment at 5, Jan. 23, 2012, ECF No. 2-1), and the Judgment of Possession (Id. at 4.)

Citibank further states that Swiatkowski and the state court defendants have an appeal pending before the Appellate Division, Second Department. (Pl.'s Letter, Jan. 23, 2012, ECF No. 2.) Citibank has submitted Swiatkowski's affidavit in support of an Order to Show Cause, dated January 13, 2012, and the Appellate Division's Order to Show Cause also dated January 13, 2012. (Pl's Letter Attachment, Jan. 23, 2012, ECF No. 2-2.)

B. Procedural Background

Swiatkowski filed a notice of removal on January 17, 2012. Citibank responded by letter and requested sua sponte remand on January 20, 2012, and the letter was filed on January 23, 2012. The Court issued an Order to Show Cause on January 24, 2012 directing Swiatkowski to respond by February 3, 2012 as to why the Court should not sua sponte remand the action to state court for the reasons set forth in Citibank's letter, including that the removal was improper under 28 U.S.C. § 1446, and that the action must be remanded under the doctrine of Rooker-Feldman. On February 1, 2012, Swiatkowski filed an "Application for Correction of Filing and Request for Extension of Time to Respond to Show Cause With Return Date February 3, 2012." In Swiatkowski's application, Swiatkowski argued that the Court must correct a clerical mistake on the docket sheet and correct the year in the date stamp of Swiatkowski's removal petition; Swiatkowski also requested an extension of fifteen days to respond to the Order to Show Cause. On February 1, 2012, the Court issued an Order stating that the clerical errors raised by Swiatkowski had no bearing on the legal issues with respect to remand and allowed Swiatkowski to respond to the January 24, 2012 Order to Show Cause by February 10, 2012. On February 10, 2012 Swiatkowski filed a motion to recuse the undersigned.

II. DISCUSSION

A. Applicable Law

"Generally, a defendant in an action pending in state court may remove that case to federal court only if it could have originally been commenced in federalcourt on either the basis of federal question jurisdiction or diversity jurisdiction." Citibank, N.A. v. Swiatkoski, 395 F. Supp. 2d 5, 8 (E.D.N.Y. 2005) (citing 28 U.S.C. § 1441(a)).⁵ "When a party challenges the removal of an action from state court, the burden falls on the removing party 'to establish its right to a federal forum by competent proof.'" In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., No. 00-1898, MDL 1358(SAS), M 21-88, 2006 WL 1004725, at *2 (S.D.N.Y. Apr. 17, 2006) (quoting R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979) (quotation omitted)). Accordingly, the burden is on the defendant to establish federal jurisdiction. Further, the removal statute should be strictly construed, and any doubts about jurisdiction should be resolved against removal. See In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007).

B. Analysis

1. Untimeliness of Swiatkowski's Removal

The procedure for removal of state cases to federal court is prescribed by 28 U.S.C. § 1446:

The notice of removal of a civil action or proceeding shall 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, or within 30 days after the services of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1).⁶

The instant action was originally commenced as an eviction proceeding in August 2011. Swiatkowski herself notes that the action was commenced on August 9, 2011. (Petition for Removal at 3, Jan. 17, 2012, ECF No. 1.) Citibank's documentation demonstrates that defendants were served with the eviction petition on August 20, 2011. The institution of the state court eviction action is outside the thirty-day period permitted under the removal statute. In the Notice of Removal, Swiatkowski claims that the action became removable on January 13, 2012. (Id. at 7, ¶ 12.) Swiatkowski has presented no reason why this date is the operative date for removal. From the documents submitted to the Court, the only event that occurred on this date is the state court defendants' filing of an Order to Show Cause in theAppellate Division, Second Department. Such an event does not convert the eviction action into a "civil action of which the district courts of the United States have original jurisdiction . . ." 28 U.S.C. § 1441(a).

Because Swiatkowski's removal occurred more than thirty days after service of the eviction petition, the removal is untimely and the Court must remand this proceeding. See Kalamas v. Consumer Solutions Reo, LLC, No. 09-CV-5045(SJF), 2010 WL 4811894, at *3 (E.D.N.Y. Nov. 17, 2010) ("Kalamas did not file a notice of removal of the holdover proceeding until November 17, 2009, more than six (6) months after the thirty (30)-day period set forth in Section 1446(b) had expired. Accordingly, the branch of Consumer Solution's motion seeking remand of this proceeding on the basis that the notice of removal was not...