Shukla v. Deloitte Consulting LLP
| Decision Date | 27 February 2020 |
| Docket Number | 1:19-cv-10578 (AJN) (SDA) |
| Parties | Ashu Shukla, Plaintiff, v. Deloitte Consulting LLP, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Pro se Plaintiff Ashu Shukla ("Shukla" or "Plaintiff") moves this Court for an Order remanding the action to the Supreme Court for the State of New York, County of New York, pursuant to 28 U.S.C. § 1447(c). (Mot. Remand, ECF No. 13.)1 For the following reasons, Plaintiff's motion is DENIED.
This action was removed to this Court pursuant to a notice of removal after nearly ten months of contentious litigation in New York state court. (See Not. Removal, ECF No. 1.) Shukla, through his counsel at the time, had commenced an action on February 1, 2019 in the Supreme Court of the State of New York, County of New York, under Index Number 151144/2019 (the "State Action"). The initial Complaint in the State Action asserted four causes of action under state law relating to Plaintiff's purportedwrongful termination from employment at Defendant Deloitte Consulting LLP, including, inter alia, harassment discrimination, and retaliation. (State Compl. ¶¶ 44-58.) Thereafter, on August 7, 2019, Defendant moved to dismiss Plaintiff's Complaint pursuant to Section 3216 of the N.Y. Civil Practice Laws and Rules, due to Plaintiff's alleged failure to respond to discovery. (Not. Removal ¶ 4(a); Mot. Remand Ex. C ("State Docket") at 32.) On August 7, 2019 and August 9, 2019, respectively, Plaintiff2 opposed Defendant's motion and filed a cross-motion to compel. (Not. Removal ¶¶ 4(b)-(c); State Docket at 32-33.) Defendant filed its reply on August 14, 2019. (Not. Removal ¶ 4(d); State Docket at 33.)
While these motions were pending, on September 12, 2019, Plaintiff filed an Amended Complaint in the State Action without seeking leave of Court before doing so. Plaintiff's Amended Complaint added "allegations related to gender and national origin discrimination, in violation of the New York State Human Rights Law ('NYSHRL') and New York City Human Rights Law ('NYCHRL')." (Not. Removal ¶ 5; Am. State Complaint ¶¶ 48-50, 56-59.) Thereafter, the parties engaged in additional motion practice, including Plaintiff's motions for default judgment against Defendant, Defendant's motion for a protective order and a proposed Order to Show Cause filed by Plaintiff. (Not. Removal ¶¶ 6(a)-(h); State Docket at 34-37.)
On October 2, 2019, Defendant moved to dismiss the Amended Complaint in the State Action on the ground of failure to state a cause of action. (Not. Removal ¶ 7; State Docket at 36.) Plaintiff responded on October 15, 2019 with a cross-motion for leave to amend, attaching aproposed Second Amended State Complaint. The proposed Second Amended State Complaint added, for the very first time, federal claims, including (1) fraud, illegality and deprivation of rights under 18 U.S.C. § 1589 ; (3) conspiracy in violation of 18 U.S.C. § 1959 (id. ¶¶ 109-111); (3) retaliation in violation of 18 U.S.C. §§ 1512 and 1513 (id. ¶¶ 112-15); and (4) deprivation of rights under 18 U.S.C. § 242. (Id. ¶¶ 116-18.)
Defendant opposed Plaintiff's cross-motion to amend (Not. Removal ¶ 10; State Docket at 38), and on October 18, 2019, Plaintiff filed yet another a cross-motion for leave to amend his complaint, this time attaching a proposed Third Amended State Complaint. Plaintiff's proposed Third Amended State Complaint added additional federal claims, including claims under Title VII of the Civil Rights Act ("Title VII") , and claims under the Americans with Disabilities Act ("ADA"). (Id. ¶¶ 86, 98-101, 107.)
During a conference in the State Action held on October 30, 2019 (Not. Removal ¶ 13), and as confirmed via e-mail by the Principal Law Clerk to Justice James Edward D'Auguste of the Supreme Court, New York County, the parties were instructed not to engage in "further communications, filings or requests of any kind . . . to the court or to each other, subject to an order from the court." (Mot. Remand Ex. A ("10/30/19 State Court E-Mail") at 21-22.)
Before any of the aforementioned motions were decided, on November 14, 2019, Defendant filed a notice of removal to this Court. (Not. Removal; State Docket at 39.) On December 3, 2019, Plaintiff filed the instant motion for remand (Mot. Remand), and on December 4, 2019, Plaintiff filed a motion for leave to file an Amended Complaint in this Court,attaching a Proposed Amended Complaint. (Mot. Amd., ECF No. 14; Mot. Amd. Ex. A ("Fed. Am. Compl."), ECF No. 14, at 10-49.) The federal Amended Complaint asserts numerous claims under federal law, including claims under Title VII, the ADA, 18 U.S.C. § 1589, 18 U.S.C. § 1959; 18 U.S.C. § 1512, 18 U.S.C. § 1513 and 18 U.S.C. § 242. (Fed. Am. Compl. ¶¶ 90-122.)
During a status conference before this Court on January 8, 2020, Defendant agreed to accept the Federal Amended Complaint as the operative pleading in this case, and Plaintiff consented to withdraw his motion for remand. (See 1/8/20 Orders, ECF No. 24 & 25.) However, on January 17, 2020, Plaintiff requested that his motion for remand be reinstated and the Court granted his request. (1/17/20 Pl. Ltr., ECF No. 30; 1/17/20 Order, ECF No. 31.) On February 14, 2020, District Judge Nathan approved the parties' written consent for me to enter a final order on the pending motion to remand, pursuant to 28 U.S.C. § 636(c). (Consent, ECF No. 38.)
A case pending in state court can be removed to federal court if "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). In other words, "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 federal court on either the basis of federal question jurisdiction or diversity jurisdiction." Sherman v. A.J. Pegno Constr. Corp., 528 F. Supp. 2d 320, 325 (S.D.N.Y. 2007) (quoting Citibank, N.A. v. Swiatkoski, 395 F. Supp. 2d 5, 8 (E.D.N.Y. 2005); citing 28 U.S.C. § 1441(b)). Moreover, "if 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." 28 U.S.C. § 1446(b)(3).
After a case has been removed to federal court, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). The case can also be remanded "on the basis of any defect other than lack of subject matter jurisdiction." Id. The party asserting federal jurisdiction bears the burden of showing that subject matter jurisdiction exists in federal court and that removal was proper. See, e.g., United Food & Comm. Workers Union, Local 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) . Bellido-Sullivan v. Am. Int'l Grp., Inc., 123 F. Supp. 2d 161, 163 (S.D.N.Y. 2000). Thus, when considering a motion to remand, "federal courts construe the removal statute narrowly, resolving any doubts against removability." Sherman, 528 F. Supp. 2d at 325 (quoting Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)).
Plaintiff objects to removal and argues that the case should be remanded to state court on various grounds: (1) Plaintiff asserts that Defendant waived its right to remove the State Action by (a) making dispositive motions, (b) participating in hearings before the state court, and(c) violating the state court's prohibition on making any further filings; (2) Plaintiff asserts that the removal is procedurally defective; and (3) Plaintiff asserts that Defendant has engaged in "fraud and misrepresentation" and filed the notice of removal in bad faith. (Mot. Remand at 3-7, 9-11, 13-15.) Defendant responds that it properly removed the action "within thirty days of the first pleading, motion, order, or other paper from which it could first be ascertained that this action became removable." (Def.'s Mem., ECF No. 34, at 1.) In addition, Defendant disagrees that it waived its right to remove since the parties were still engaging in disputed paper discovery, argues that its notice of removal was not defective, and argues that it did not act in bad faith. (Def.'s Mem. at 6-10.) On reply, Plaintiff argued, for the first time, that because Defendant opposed his motion to amend his pleading and add federal claims, there was no operative pleading with federal claims at the time of removal, and that, as such, the Court lacks jurisdiction. (Pl.'s Reply, ECF No. 35, at 6-7.)
As an initial matter, this Court finds that Defendant complied with the removal statute when removing this action. The removal statute allows for an action to be removed from state court if it asserts a...
To continue reading
Request your trial