Summary
recognizing court's authority to remand sua sponte based on procedurally defective removal
Summary of this case from Buhannic v. Tradingscreen Inc.Opinion
00 Civ. 9626 (DLC); 01 Civ. 4706 (DLC)
June 26, 2001
Gonzalo Camprubi-Soms, Pro Se.
Ronald Paul Hart, Esq., For Archangel Aranda.
MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order concerns two related actions arising from a dispute between Archangel Aranda ("Aranda") and Gonzalo Campbrubi Soms ("Soms") over the lease and sale of a condominium: Soms v. Aranda, 00 Civ. 9626(DLC), a breach of contract claim brought by Soms in this Court ("First Action"); and Aranda v. Soms, 01 Civ. 4706(DLC), a foreclosure and eviction proceeding brought by Aranda in state court and removed to this Court ("Second Action"). On May 31, 2001, Soms sought, through a motion related to the First Action, to remove the foreclosure and eviction proceeding pending in state court and to stay the eviction proceeding. In this Court's absence, Magistrate Judge Freeman — who had previously been referred general pretrial matters and dispositive motions in the First Action — denied Soms' request for emergency relief but did not address the merits of Soms' petition. On June 1, 2001, Soms removed the Second Action to this Court. Following this Court's referral of the Second Action to Magistrate Judge Freeman, she issued a report and recommendation ("Report") on June 19, 2001, that recommended that the merits of the application related to the First Action be denied and that the Second Action be remanded to state court. The Report reasons that remand is appropriate because: (1) this case does not concern Soms' civil rights such that 28 U.S.C. § 1443(1) would be implicated by its removal; and (2) it is appropriate for a federal court to abstain in landlordtenant actions, as they "involve complex questions of state law that bear on important state policy issues."Fischmann v. Visiontel. Inc., 934 F. Supp. 115, 117 (S.D.N.Y. 1996).
On March 20, 2001, Archangel Aranda sought to remove or stay this same foreclosure and eviction proceeding and, on March 21, 2001, this Court denied the relief Aranda requested.
The Report additionally concludes that this Court has the authority to remand defendant's Second Action and to deny the relief requested in the First Action, sua sponte, because Soms' removal petition is procedurally flawed. Section 1441(b) of Title 28, United States Code, provides that
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendant is a citizen of the State in which such action is brought.28 U.S.C. § 1441(b) (emphasis supplied).
Because Soms, the defendant in the Second Action, is a citizen of New York, this diversity action is not removable to federal court. See Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 50 n. 2 (2d Cir. 2000); Four Keys Leasing Maintenance Corp. v. Simithis, 849 F.2d 770, 773 (2d Cir. 1988) This Court has the authority to remand on these grounds, sua sponte, if it does so within thirty days of the procedurally flawed removal. See Hamilton v. AETNA Life and Cas. Co., 5 F.3d 642, 644 (2d Cir. 1993); American Home Assur. Co. v. RJR Nabisco Holdings Corp., 70 F. Supp.2d 296, 299 (S.D.N.Y. 1999); Cassara v. Ralston, 832 F. Supp. 752, 753 (S.D.N.Y. 1993) (Sotomayor, J.). Whether the thirty days runs from May 31, 2001, the date that Soms sought to remove the foreclosure and eviction proceeding through the First Action, or from June 1, 2001, the date that Soms actually removed the Second Action to this Court, this Court's sua sponte remand of the Second Action and denial of the relief requested through the First Action are well within the thirty day period.
As the Report recommends, denial of the relief requested in the First Action and remand of the Second Action are also appropriate based upon principles of abstention and federal law concerning removal. Because this Court remands this action sua sponte, based upon the procedural defect in Soms' removal petition, however, the Court finds it unnecessary to address these additional bases for remand. It is also unnecessary, therefore, to await the parties' objections to Magistrate Judge Freeman's Report. Accordingly, it is hereby
ORDERED that Soms' motion related to the First Action, 00 Civ. 9626, to remove the foreclosure and eviction proceedings pending in state court and to stay the eviction proceeding, is denied.
IT IS FURTHER ORDERED that 01 Civ. 4706 is remanded to New York State court. The Clerk of Court shall close this case.
SO ORDERED: