Frontier Park Co. v. Cristobal Ferrara Contreras
| Decision Date | 05 August 2014 |
| Docket Number | No. 14–cv–03624 ADSAKT.,14–cv–03624 ADSAKT. |
| Citation | 35 F.Supp.3d 264 |
| Parties | FRONTIER PARK CO., LLC, 330 Broadway, Amityville, New York 11701, Petitioner, v. Cristobal Ferrara CONTRERAS (named herein as Cristobel Ferrara), Jesus S. Ferrara, Esperenza Alvarango, Jose E. Ayala–Diaz, Particia Kelly (named herein as Patrick Kelly), James Kavun, Carl Holmgrem, Jr. (named herein as Karl Holmgren), Marion Brown, Lana Jessen, Edward M. Havekost, Linda Kavun, Augustin Gutierrez, Rosa E. Gutierrez, Yapaica Marte, Emmanuel Marte, Wilmer Membreno (named herein as Wilmer Membieno), Jean Taino, Mark Taino, Naira Tarra, Laura Zilinski, Maria Lopez (named herein as Maira Lopez), Marvin Hernandez Ventura, Timothy McCarthy, Edith Salermon, Gary Sandefur, Pamela Sanefur, Pamela Sandefur, Dorothy Ketcham, Maris Leyva, Mary Lee Stratton, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Hamburger, Maxson, Yaffee, Knauer & McNally, LLP By Lane T. Maxson, Esq., of counsel, Melville, NY, for Petitioner.
Arthur Morrison, Esq., Hawthorne, NY, for Respondents.
On or about May 5, 2014, the Petitioner–Landlord, Frontier Park Co. (the “Petitioner”) commenced 22 summary holdover proceedings pursuant to New York State Real Property Actions and Proceedings Law (“RPAPL”) Article 7 in the Second District Court of Lindenhurst, Babylon, New York. On both May 8 and May 13, 2014, in the state action, the Respondents filed certain counterclaims—namely, under the Equal Protection Clause of the 14th Amendment to the United States Constitution; the Fair Housing Act, 42 U.S.C. § 3601 et seq.; and other federal statutes.
On June 9, 2014, the Respondents removed these summary holdover proceedings, under one civil docket, to this Court on the basis of federal question jurisdiction.
Presently before the Court is the Petitioner's motion pursuant to 28 U.S.C. 1447(c) to remand the 22 holdover proceedings to the state court and for costs and actual expenses, including attorney's fees incurred as a result of the removal. The Petitioner argues that the removal petition (1) is untimely pursuant to 28 U.S.C. § 1446(a) ; (2) is defective due to the Respondents' failure to file separate removal petitions for each summary holdover proceeding; and (3) fails to invoke subject matter jurisdiction. For the following reasons, the Court grants the Petitioner's motion to remand and for costs and expenses.
Initially, the Court addresses the issue of the timeliness of the removal petition. 28 U.S.C. § 1446 provides that “[t]he 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.” 28 U.S.C. § 1446(b). “Subsection 1447(c) authorizes a remand on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction.” LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir.1994) (internal quotation marks and citations omitted). Failure to file within the 30–day filing period leads to an automatic defeat of the removal petition. See Bertrand v. Vingan, 899 F.Supp. 1198, 1199 (S.D.N.Y.1995) ().
Indeed, the Supreme Court has held that “statutory 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) “because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns.” In re NASDAQ Market Makers Antitrust Litigation, 929 F.Supp. 174, 178 (S.D.N.Y.1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ) (“Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.”).
To that end, “all doubts should be resolved in favor of remand.”
Leslie v. BancTec Service Corp., 928 F.Supp. 341, 347 (S.D.N.Y.1996) (internal quotation marks and citations omitted). Accordingly, “absent waiver or estoppel, the thirty[-]day period cannot be extended by court order, stipulation of the parties, or otherwise.” Thomas v. Baldwin, 189 F.Supp.2d 1, 2 (E.D.N.Y.2002).
In this case, 17 of the underlying petitions were served on May 5, 2014 and five were served on May 6, 2014. The notice of removal was filed on June 9, 2014, respectively, 34 and 35 days, after receipt of the underlying petitions.
Nonetheless, the Respondents argue that their removal petition is timely under the provision of U.S.C. § 1446(b)(3), which provides as follows:
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
This “narrow judicially-created exception to the thirty-day rule [is] known as the revival exception.” In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., No. 1:00–1898(SAS), 2006 WL 1004725, at *3 (S.D.N.Y. Apr. 17, 2006) (“MTBE ”); see also Tully v. Am. Fed'n of Gov't Employees Local 3148, 00–CV–7664 (JG), 2001 WL 253034, at *2 (E.D.N.Y. Mar. 9, 2001). As explained by the Fifth Circuit:
“an amendment of the complaint will not revive the period for removal if a state court case previously was removable but the defendant failed to exercise his right to do so,” a different result generally is reached if the pleading amendment provides (1) a “new basis for removal” or (2) “changes the character of the litigation so as to make it substantially a new suit.”
Braud v. Transport Serv. Co. of Illinois, 445 F.3d 801, 806 (5th Cir.2006) (quoting 14C Wright, Miller & Cooper, Federal Practice and Procedure, § 3732 at 311–48 ). “The gist of this principle, then, is that where a defendant has failed to exercise its right to remove within § 1446(b)'s thirty-day period, the defendant's right to remove can be ‘revived’ if the plaintiff amends the complaint, and in so doing dramatically changes the essential character of the action.” MG Bldg. Materials, Ltd. v. Paychex, Inc., 841 F.Supp.2d 740, 744 (W.D.N.Y.2012).
Here, the Respondents contend that a motion for summary judgment filed by the Petitioner in the state court triggered the U.S.C. § 1446(b)(3) exception. However, the Court finds that this “revival exception” does not save the Respondents' untimely removal petition because the motion for summary judgment filed by the Petitioner in the state court did not change the nature of the underlying petitions seeking a judgment for possession and warrant of eviction so as to render it an effectively new lawsuit. Tully, 2001 WL 253034, at *2 (); MTBE, 2006 WL 1004725, at *3 () (citation omitted).
In short, because the removal petition was filed more than 30 days after the Respondents received the underlying petitions, and the provisions of U.S.C. § 1446(b)(3) are inapplicable, the Respondents lost any right to remove the individual holdover proceedings to this Court.
Even assuming that the removal petition was timely, the Court finds that it is legally defective for the simple reason that 28 U.S.C. § 1446 does not provide for “bundling” of several actions or proceedings for purposes of removal into one federal action. The Respondents have not shown that the separate actions were properly consolidated or that they have filed 22 separate petitions for removal. Accordingly, the Court finds that the notice of removal is improper for the failure to file separate removal petitions.
Moreover, even if the Petitioner had complied with the procedural aspects of the removal statute, this Court would nevertheless remand this case based on the “well-pleaded complaint” rule.
By way of background, a cause of action that was initially filed in state court may be removed by a defendant where “the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Accordingly, a prerequisite for removal jurisdiction is that the court has the power to exercise original jurisdiction. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ()
“Generally, the presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” NYU Hosp. Ctr.-Tisch v. Local 348 Health & Welfare Fund, No. 04–6937(AKH), 2005 WL 53261, at *1, 2005 U.S. Dist. LEXIS 256, at *2–3 (S.D.N.Y. Jan. 6, 2005) (citing Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. 2425 ) (internal quotations omitted); see also United Mut. Houses. LP v. Andujar, 230 F.Supp.2d 349, 350 (S.D.N.Y.2002) (citation omitted)(“Moreover, a plaintiff is a master of the complaint—neither a federal defense nor counterclaim will create removal jurisdiction.”) (citation omitted); Arrey v. Beaux Arts II, LLC, 101 F.Supp.2d...
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Frontier Park Co. v. Cristobal Ferrara Contreras (Named Herein Ferrara
...35 F.Supp.3d 264FRONTIER PARK CO., LLC, 330 Broadway, Amityville, New York 11701, Petitioner,v.Cristobal Ferrara CONTRERAS (named herein as Cristobel Ferrara), Jesus S. Ferrara, Esperenza Alvarango, Jose E. Ayala–Diaz, Particia Kelly (named herein as Patrick Kelly), James Kavun, Carl Holmgr......