Opinion
09 Civ. 8599 (BSJ) (KNF).
January 25, 2010
REPORT RECOMMENDATION
TO THE HONORABLE BARBARA S. JONES, UNITED STATES DISTRICT JUDGE
The plaintiff, Yun Fei Xiao ("Xiao"), commenced the instant action in the New York State Supreme Court, New York County, on May 30, 2008, alleging, inter alia, violations of 42 U.S.C. § 1983. On October 13, 2009, Xiao filed a notice of removal with the Clerk of Court for this judicial district, seeking to remove his action to federal court, pursuant to 28 U.S.C. §§ 1441, 1443 and 1446. In a letter to your Honor, dated October 29, 2009, one of the defendants, Moezinia Brothers Capital, LLC ("MBC"), requested that the court remand this action, on the ground that the power to remove a case to federal court rests solely with a defendant.
"[A]ny 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 . . . where such action is pending." 28 U.S.C. § 1441(a); see also 28 U.S.C. § 1443 (providing for removal of civil rights cases "by the defendant") and 28 U.S.C. § 1446(a) (providing procedure for removal by "defendants desiring to remove any civil action or criminal prosecution"). No section, among the provisions governing the removal of actions to federal court, "provides for removal by a plaintiff." Hamilton v. Aetna Life Cas. Co., 5 F.3d 642, 643 (2d Cir. 1993), cert. denied, 510 U.S. 1130, 114 S. Ct. 1100 (1994). "[T]he right to remove [] [is] limited to 'true' defendants. Thus, plaintiffs cannot remove, even when they are in the position of defendants with regard to a counterclaim asserted against them." 14C C. Wright, A. Miller, E. Cooper J. Steinman, Fed. Prac. Proc. § 3730 (4th ed.).
"An action removed other than in accordance with the statutory provisions may be remanded to state court." Hamilton, 5 F.3d at 643; see 28 U.S.C. §§ 1441, et seq. A motion to remand "on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days" of the filing of the notice of removal. 28 U.S.C. § 1447(c). The Second Circuit Court of Appeals has held that "non-trial motions are 'made' when 'filed[.]'" Phoenix Global Ventures v. Phoenix Hotel Assoc, 422 F.3d 72, 76 (2d Cir. 2005) (permitting district court to deem motion to remand as made at the time it would have been made, but for moving party's failure to comply with local rules for electronic case filing). Pursuant to Fed.R.Civ.P. 5(d)(2)(B), a paper may be filed by "delivering it to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk."
MBC is correct in its contention that no authority permitting Xiao to remove his action, from the New York Supreme Court, to this judicial district, exists. Accordingly, Xiao's notice of removal is procedurally improper. See Hamilton, 5 F.3d at 644 (treating a plaintiff's attempt to remove as a procedural defective); Pierpoint v. Barnes, 94 F.3d 813, 819 (2d Cir. 1996),cert. denied, 520 U.S. 1209, 117 S. Ct. 1691 (1997) (considering removal "not authorized by law" defective, within the meaning of 28 U.S. § 1447[c]). Having delivered its motion to remand to your Honor's chambers within 30 days of Xiao's filing of the notice of removal, MBC's application was filed timely, and granting it appears reasonable and appropriate. See generally Hamilton, 5 F.3d at 644 ("[A]n order granting remand based [] on a timely motion asserting a procedural defect . . . is not reviewable.").
RECOMMENDATION
For the reasons set forth above, I recommend that MBC's motion be granted and the instant action be remanded to the New York State Supreme Court, New York County.
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Counsel to MBC is directed to serve a copy of this Report and Recommendation on all parties and to file proof of service with the Clerk of Court.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections.See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, 500 Pearl Street, Room 1920, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).