Servs. v. Clarke
Decision Date | 11 December 2017 |
Docket Number | 17-CV-6741 (JS)(AYS) |
Parties | In the Matter of a Proceeding for Support under the Family Court Act COMMISSIONER OF SOCIAL SERVICES, Petitioner/Assignee on behalf of TAMMY BOERTLEIN, ASSIGNOR, Petitioner, v. ROGER W. CLARKE, JR., Respondent. |
Court | U.S. District Court — Eastern District of New York |
MEMORANDUM & ORDER TO SHOW CAUSE
APPEARANCES
For Petitioner:
No appearance.
For Respondent:
Roger W. Clarke, prose
1 Sommerset Drive
Yaphank, NY 11980
In or about October 31, 2016, the Commissioner of Social Services, on behalf of Tammy Boertlein, Mother ("Petitioner"), commenced this action against respondent Roger W. Clarke Jr., Father ("Respondent") in the Family Court of the State of New York, County of Suffolk ("State Court").1 (See Pet., Docket Entry 1, at 1.) On November 17, 2017, Respondent, acting pro se, filed a Notice of Removal removing the action to this Court pursuant to,inter alia, 28 U.S.C. §§ 1443 ("Section 1443") and 1446(b) ("Section 1446(b)") on the basis that this Court has original jurisdiction under 28 U.S.C. § 1331 because there are "questions arising under the Constitution, Laws, and Treaties of the United States, including but not limited to the Bill of Rights and the Eleventh Amendment, the original Thirteenth Amendment, and Fourteenth Amendment to the U.S. Constitution, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights, with Reservations" involved. (See Pet. at 1.)2 Respondent also claims "that there are also criminal violations of 18 U.S.C. §§ 241 and 242. (Pet. at 2.) According to Respondent, "the state family court system may already be, or has become, a fully wanton criminal enterprise with the officers and professionals in daily power thereof absolutely and manifestly abusing process, law, litigants, and even incidental parties . . . ." (Pet. at 7, ¶ 19.)
Further, Respondent asserts that removal is proper pursuant to 28 U.S.C. § 1443 because he, a state court litigant,has been "denied or cannot enforce in the courts of such State a right under any law providing for the equal rights of citizens of the United States, or of all persons within the jurisdiction thereof." (Pet. at 2, (quoting 28 U.S.C. § 1443(1)).)
Respondent has also filed two motions seeking disqualification of the undersigned "and all other Judges of this Court who have likewise previously acted as a New York state court judge at any time in domestic relations/child custody cases." (See Docket Entries 1-14 and 6.) Respondent paid the Court's filing fee. For the reasons set forth below, and for the same reasons that the Court made clear in its Memorandum and Order remanding the Petition under Docket Number 17-CV-6030(JS)(AYS), the instant action is REMANDED to the State Court pursuant to 28 U.S.C. § 1447(c). Given the remand, the motions for disqualification are DENIED AS MOOT.
Pursuant to 28 U.S.C. § 1441(a), " . . . 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) (emphasis added).) In addition, 28 U.S.C. § 1446(a) sets forth the procedure for removal to befollowed:
28 U.S.C. § 1446(b). "[S]tatutory procedures for removal are to be strictly construed, . . . because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns." Frontier Park Co., LLC v. Contreras, 35 F. Supp. 3d 264, 267 (E.D.N.Y. 2014) (internal quotation marks and citations omitted); accord In re Facebook, Inc., IPO Sec. & Derivative Litig., 922 F. Supp. 2d 475, 480 (S.D.N.Y. 2013). "[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)(internal quotation marks and citation omitted).
Here, Respondent seeks to remove this child support enforcement action to this Court almost one (1) year after it was filed in the State Court.3 Thus, regardless of whether Respondent's Notice of Removal invokes this Court's federal question subject matter jurisdiction,4 there is no basis in law for Respondent's attempt to remove this action to federal court after the statutory thirty-day time period has expired. Edelman v. Page, 535 F. Supp. 2d 290, 292 (D. Conn. 2008) ( )(internal quotation marks andcitation omitted; alterations in original). Thus, notwithstanding Respondent's assertion his constitutional rights have been or are being violated in the state court matter, there is no basis to remove a child support enforcement action simply by alleging that the state court has violated his federal rights. See Grohs v. Grohs, 17-CV-1605, 2017 WL 5171845, *3 (D. Ct. Nov. 8, 2017) () Indeed, "" Grohs, 2017 WL 5171845, at *3, quoting Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S. Ct. 237, 62 L. Ed. 2d 713 (1918).
Further, to the extent that Respondent relies on Section 1443 as the basis for removal, such reliance is misplaced. It is well-established that Section 1443 "'applies only in cases where a defendant seeks to remove a state cause of action based upon racial discrimination.'" Grohs v. Grohs, 17-1605, 2017 WL 4678182, *3 (D. Conn. Oct. 17, 2017) (emphasis in original), quoting Robinson v. Eichler, 795 F. Supp. 1253, 1258 (D. Conn. 1992) ( )(citing Johnson v. Miss., 421 U.S. 213, 219, 95 S. Ct. 1591, 44 L. Ed. 2d 121 (1975)). Given Respondent'sacknowledgment that "there is no racial component in this case" (Pet. Ex. 9, Docket Entry 1-9), Section 1443 has no application here.
Moreover, although Respondent's Notice of Removal, including exhibits, is comprised of eighty-two pages, he has failed to attach a copy of the "pleadings[ ] and orders" served upon him in the State Court case as is required by the removal statute.5 Accordingly, this action is REMANDED to the State Court pursuant to 42 U.S.C. § 1447(c). See, e.g. Allfour v. Bono, No. 11-CV-1619, 2011 WL 2470742, at * 1 (E.D.N.Y May 5, 2011), report and recommendation adopted by 2011 WL 2470734 (E.D.N.Y. June 22, 2011) ( ); Cassara v. Ralston, 832 F. Supp. 752, 753-54 (S.D.N.Y. 1993) ( ); see also Burr v. ToyotaMotor Credit Co., 478 F. Supp. 2d 432, 436 (S.D.N.Y. 2006) () (internal quotation marks and citation omitted).
Accordingly, the Clerk of the Court shall: (1) MAIL a certified copy of this Order to the clerk of the Family Court of the State of New York, County of Suffolk, pursuant to 42 U.S.C. § 1447(c) and (2) MAIL a copy of this Memorandum and Order to Respondent. Given the remand, Respondent's motions for disqualification are DENIED as they are now MOOT.
Under the All Writs Act, a federal court "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The All Writs Act "grants district courts the power, under certain circumstances, to enjoin parties from filing further lawsuits." MLE Realty Assocs. v. Handler, 192 F.3d 259, 261 (2d Cir. 1999). Those circumstances include cases where a litigant engages in the filing of repetitive and frivolous suits. See Malley v. N.Y. City Bd. of Educ., 112 F.3d 69 (2d Cir. 1997) (per curiam) ( ); In re Martin-Trigona, 9 F.3d226, 227-28 (2d Cir. 1993). Such an injunction, while protecting the courts and parties from frivolous litigation, should be narrowly tailored so as to preserve the right of access to the courts. In addition, the Court must provide plaintiff with notice and an...
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