Opinion
03-CV-0789E(Sc)
January 15, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
The Bagnatos filed suit in New York State Supreme Court, County of Erie, against The Home Depot ("Home Depot") and Foam ex International, Inc. ("Foamex") on December 3, 2002 seeking damages for personal injuries allegedly caused by noxious substances emitting from carpet and padding installed by Home Depot in April of 2000 ("the First Action"). On September 4, 2003, the Bagnatos also filed suit against Home Depot and Beaulieu of America, Inc. ("Beaulieu") ("the Second Action"). Beaulieu was served on September 26. On October 17 the Bagnatos filed a motion to consolidate the First and Second Actions — which motion was filed in both actions. Beaulieu removed the Second Action on October 23 on the basis of diversity jurisdiction. The Bagnatos filed a motion for remand on November 4. The Bagnatos' motion was argued and submitted December 19. For the reasons set forth below, the Bagnatos' motion for remand will be granted in part and denied in part.
Foamex manufactures padding for carpets.
Beaulieu manufactures carpet.
The Bagnatos purportedly did not name Foamex in the Second Action because they had already done so in the First Action. Home Depot was allegedly named in the Second Action as well because they had not appeared in the First Action.
The Bagnatos seek as alternate relief leave to file an amended complaint that names Foamex.
The Bagnatos contend that Beaulieu's Notice of Removal is deficient because it failed to disclose the pending motion to consolidate the First and Second Actions. This Court agrees, albeit on a ground not advanced by the Bagnatos. Although 28 U.S.C. § 1446(a) only required Beaulieu to attach to its notice of removal "all process, pleadings, and orders served upon such defendant," Beaulieu was nonetheless required by Rule 81 of the Local Rules of Civil Procedure ("LRCvP") to file with the Clerk of this Court, inter alia, a "notice of removal with the following attachments:
The Bagnatos argued that Foamex defeated diversity jurisdiction. This argument, however, would fail because Foamex is not (nor ever was) a party to the Second Action, which is the action that was removed. As noted above, Foamex was a party to the First Action, which was never consolidated with the Second Action. In any event, Beaulieu's failure to comply with 28 U.S.C. § 1447(b) and Local Rule 81 is the basis for this Court's ruling — an issue that the parties did not address.
A motion is not a pleading — as evidenced by the text of Rule 7 of the Federal Rules of Civil Procedure.
(A) An index of all documents which clearly identifies each document and indicates the date the document was filed in State court; and
(B) Each document filed in the State court action, except discovery material, individually tabbed and arranged in chronological order according to the State court file date."
Beaulieu's Notice of Removal failed to comply with LRCvP 81. Pursuant to section 1447(b), this Court is permitted to "require the moving party to file with its clerk copies of all records and proceedings in such State court ***." 28 U.S.C. § 1447(b) (emphasis added). Failure to satisfy section 1447(b) — via its failure to comply with LRCvP 81 — is a defect within the meaning of section 1447(c) that makes it appropriate to remand this action to state court. This Court must "construe the removal statute narrowly, resolving any doubts against removability." Moreover, "Local Rules have the force of law *** [where] they do not conflict with rules prescribed by the Supreme Court, Acts of Congress, or the Constitution." Nonetheless, this Court "has the inherent power to decide when a departure from its Local Rules should be excused or overlooked." Som/yo, supra note 10, at 1048. This Court must therefore ask whether the application of LRCvP 81 "would cause an unfair result." Id. at 1049. This Court finds that application of LRCvP 81 to Beaulieu is not unjust. First, Beaulieu did not even attempt to comply with LRCvP 81. Second, this Court must narrowly construe Beaulieu's right to remove in order to maintain the limited jurisdiction of federal courts and to respect the independence of New York State and its courts. Id. at 1045-1046. Third, "District courts do not institute Local Rules to frustrate litigators, but to ensure the efficient and expedient execution of justice." Id. at 1048. Finally, to permit "the filing of a notice of removal without compliance with the Local Rules would subvert the policy behind the Local Rules and encourage non-compliance." Id. at 1047. Accordingly, Beaulieu's Notice of Removal was deficient for failure to comply with section 1447(b) and LRCvP 81.
Consequently, section 1447(b) authorized this Court to enact LRCvP 81.
See Lafarge Coppee v. Venezolana de Cementos, 31 F.3d 70, 72 (2d Cir. 1996) ("Subsection 1447(c) authorizes a remand `on the basis of any defect in removal proceedings ***.'"); Can-others Construction Co. v. USA Slide, Inc., 1998 WL 295602, at *1 (D. Kan. 1998) (remanding case to state court because removing party failed to comply with local rule requiring removing party to "file with the clerk of this court a copy of all records and proceedings had in the state court" and holding that the additional requirement established by the local rule was authorized by section 1447(b)); see also Fastpro Int'l, Inc. v. Great Plains Software O.C., Inc., 2001 WL 395287, at *1 (D. Kan. 2001) (remanding case to state court because of, inter alia, the removing party's failure to comply with a local rule requiring the removing party to file a copy of all records filed in state court).
See Somlyo v. J. Lu-RobEnters., 932 F.2d 1043, 1045-1046 (2d Cir. 1991) (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941)); see also Wilds v. United Parcel Sew., Inc., 262 F. Supp.2d 163, 176 (S.D.N.Y. 2003) ("The defendant's right to remove and the plaintiffs right to choose the forum are not equal, and uncertainties are resolved in favor of remand.")
Somlyo, supra note 10 at 1046; see also id. at 1044 (holding that "compliance with the Local Rules of a district court is a prerequisite to the timely filing of a notice of removal under the removal statute").
This Court will deny the Bagnatos' requests for costs and attorneys' fees because, inter alia, it failed to raise the ground upon which this Court based its ruling. Inasmuch as this action will be remanded based on Beaulieu's defective Notice of Removal, this Court need not address the parties' other arguments.
Accordingly, it is hereby ORDERED that plaintiffs' motion for remand is granted in part and denied in part, that plaintiffs' request for costs and attorneys' fees is denied and that the Clerk of this Court shall remand this action to the New York State Supreme Court, County of Erie.