Opinion
23 Civ. 10150 (JGLC) (GS)
01-08-2024
ASHU SHUKLA, Plaintiff, v. META PLATFORMS INC. and DELOITTE CONSULTING LLP, Defendants.
REPORT AND RECOMMENDATION
GARY STEIN, UNITED STATES MAGISTRATE JUDGE:
Before the Court is pro se Plaintiff Ashu Shukla's motion to remand this action to the Supreme Court of the State of New York, County of New York, pursuant to 28 U.S.C. § 1447(c). (See Dkt No. 8; Dkt. No. 9 (“Motion” or “Mot.”)). For the reasons set forth below, the Court respectfully recommends that Shukla's motion be DENIED.
BACKGROUND
On October 26, 2023, Plaintiff Ashu Shukla (“Plaintiff” or “Shukla”) commenced this action in the Supreme Court of the State of New York, County of New York (the “State Court”) with the filing of a Summons and Complaint against Defendants Deloitte Consulting LLP (“Deloitte”) and Meta Platforms Inc. (“Meta” and, together with Deloitte, “Defendants”). See Shukla v. Meta Platforms Inc. et ano, Index Number 160455/2023 (Sup. Ct. N.Y. Cnty.).The Complaint asserts a litany of state and federal claims against Defendants including, inter alia, alleged violations of the federal civil rights laws, 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985; the Americans with Disabilities Act, 42 U.S.C. § 12101; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the “Federal Tort Claims Act.” (Compl. ¶¶ 205-12 (Count One), 218-29 (Count Three), 235-54 (Count Five), 260-73 (Count Seven), 323-58 (Counts Thirteen, Fourteen, and Fifteen)).
The Summons and Complaint are dated October 25, 2023. (Dkt. No. 1-1). However, the docket in the state case shows these papers were filed on October 26, 2023. (See Dkt. No. 1-3 (State Court Docket Entry dated October 26, 2023)).
By November 15, 2023, Defendants had not appeared in the State Court, nor had they answered Plaintiff's Complaint. (See Mot. Exh. C). The following day, Plaintiff emailed Deloitte's counsel regarding her client's alleged failure to timely answer his Complaint and stated his intention to move for a default judgment. (Id.). Plaintiff promptly followed through on his email and moved for a default judgment in the State Court on November 17, 2023. (Id. Exh. D).
Later in the day of November 17, 2023, Deloitte removed the case to this Court, with the consent of its co-defendant Meta. (Dkt. No. 1 (“Removal Notice” or “Rem. Not.”); Dkt. No. 1-2).
Following Defendants' removal, late at night on November 17, 2023, Plaintiff responded to an email from Meta's counsel requesting an extension of time to respond to his Complaint in this Court by stating, “I believe the case was improperly removed to Federal Court . . . [t]he defendants have already defaulted in State court . . . I'm sorry but I must file a Motion for Remand such that the case is sent back to the State Court.” (Mot. Exh. J). Plaintiff then filed the instant motion on November 19, 2023. (Dkt. No. 8). On November 22, 2023, the State Court, in light of the removal of the case to federal court, denied Plaintiff's motion for default judgment as moot and disposed of the action. (Dkt. No. 29 Exh. A; see 28 U.S.C. § 1446(d) (after removal, state court “shall proceed no further unless and until the case is remanded”)).
Deloitte and Meta submitted oppositions to Shukla's motion to remand on December 15, 2023. (See Dkt. No. 25 (“Deloitte's Opposition” or “Del. Opp.”); Dkt. No. 28 (“Meta's Opposition” or “Meta Opp.”)). Shukla submitted a reply on December 17, 2023. (Dkt. No. 31 (“Reply”)).The case has been referred to the undersigned by the Honorable Jessica G. L. Clarke for general pretrial supervision and all dispositive motions for which a report and recommendation is required, such as the instant motion. (Dkt. No. 23). See Williams v. Beemiller, Inc., 527 F.3d 259 (2d Cir. 2008) (motion to remand is dispositive under 28 U.S.C. § 636(b)).
Shukla's Reply is styled as “Plaintiff's Reply to Defendant's Response on Plaintiff's Motion for Remand and Plaintiff's Cross Motion to Enforce Entry of Default and Grant Default Judgment Pursuant to Federal Rules of Civil Procedure and Local Rules.” (Id.). The Court previously ruled that it will not consider the arguments in the Reply in support of Shukla's improper cross-motion but will consider the arguments in the Reply in support of Shukla's motion to remand. (See Dkt. Nos. 45 and 52).
LEGAL STANDARDS
“A case pending in state court can be removed to federal court if ‘the district courts of the United States have original jurisdiction.'” Shukla v. Deloitte Consulting LLP, No. 19 Civ. 10578 (AJN) (SDA), 2020 WL 949426, at *2 (S.D.N.Y. Feb. 27, 2020) (quoting 28 U.S.C. § 1441(a)). Stated differently, “‘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.'” Id. (quoting Sherman v. A.J. Pegno Constr. Corp., 528 F.Supp.2d 320, 325 (S.D.N.Y. 2007)). As relevant to this case, such a removal must occur, if at all, “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” 28 U.S.C. § 1446 (b)(1).
Following removal from state to federal court, remand is required by statute “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction....” 28 U.S.C. § 1447(c). Alternatively, the Court may remand the case “on the basis of any defect other than lack of subject matter jurisdiction ....” Id.
When a plaintiff challenges removal, the removing party bears the burden of demonstrating that removal was proper and subject matter jurisdictions exists over the action. See Ins. Co. of Pa. v. TIG Ins. Co., 933 F.Supp.2d 510, 511 (S.D.N.Y. 2013) (“On a motion to remand, the defendant bears the burden of demonstrating the propriety of removal.”) (cleaned up). In addition, “statutory procedures for removal are to be strictly construed,” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002), such that a court “must resolve any doubts against removability” in favor of the moving party on a motion to remand. In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (cleaned up).
DISCUSSION
Plaintiff subdivides his brief's legal argument section into eleven separate sub-sections. The Court has distilled and organized these sub-sections into four separate categories of arguments supporting Plaintiff's remand otion, as follows:
Certain of Plaintiff's arguments concern Defendants' pending motions to dismiss. (See Dkt. Nos. 36-38, 41-43). For example, Shukla's brief's tenth subheading argues that Defendants “have waived their right to file a motion to dismiss in federal court.” (Mot. at 19-20; see also id. at 16 (“the defendants have demonstrated an intention to answer the complaint in Federal Court, and not file a Motion to dismiss”)). The Court declines to consider these arguments as they are immaterial to the remand motion.
First, Shukla asserts that by failing to make an appearance or answer his Complaint in State Court, Defendants defaulted and are therefore unable to remove this action to federal court. (Mot. at 5-12). Second, Shukla argues that Defendants waived their right to remove this case by evidencing their intent to litigate this matter in State Court. (Id. at 12-14). Third, Shukla alleges various procedural defects in the Removal Notice which, in his view, render removal improper. (Mot. at 14-19). Fourth, Shukla claims that Defendants had no valid reason for removal and acted in bad faith in removing the action to delay litigating his underlying claims. (Id. at 3-5, 20-21).
A. Federal Question Jurisdiction Exists Over this Action
Before reaching Plaintiff's arguments for remand, the Court first confirms the existence of federal subject-matter jurisdiction under the removal statutes, even though this is not contested by Plaintiff. See Keating v. Air & Liquid Sys. Corp., No. 18 Civ. 12258 (JPO), 2019 WL 3423235, at *2 (S.D.N.Y. July 30, 2019) (“this Court has an independent obligation to ensure that this case is eligible for removal in the first place-i.e., that it falls within the scope of the federal courts' subject-matter jurisdiction”).
As noted above, the Complaint includes a number of claims arising under federal law, including several federal civil rights statutes, the Americans with Disabilities Act, and the Federal Tort Claims Act (“FTCA”). (See Compl. ¶¶ 205358). Such claims fall within the original jurisdiction of the federal courts. See 28 U.S.C. § 1331. Indeed, claims under the FTCA can only be brought in federal court. See Finelli v. Drug Enf't Agency, No. 92 Civ. 3463 (PKL), 1993 WL 51105, at *4 (S.D.N.Y. Feb. 24, 1993) (jurisdiction over FTCA claims “is the exclusive province of the federal courts”).
Because the Complaint presents numerous federal questions, Defendants' removal meets Section 1441's original jurisdiction requirement. This Court therefore has jurisdiction over the entire action, including Plaintiff's state-law claims. See 28 U.S.C. § 1441(c)(1) (if a civil action includes claims arising under federal law as well as state-law claims not within the federal courts' original jurisdiction, “the entire action may be removed”).
B. Defendants' Alleged Default in State Court Does Not Preclude Removal
Central to Shukla's motion is the argument that Defendants “defaulted in State Court” and are thus unable to remove this action to federal court because an entry of default “is instantly enforceable” and would divest this Court of jurisdiction. (Mot. at 5-10).
In support of this argument, Plaintiff has provided Affidavits of Service indicating that the Summons and Complaint were served on both Defendants on October 26, 2023 via delivery of the papers to a registered agent authorized to accept service on their behalf. (Mot. Exh. D). Under New York law, a corporate defendant properly served in this manner is required to answer or otherwise respond to the Complaint within twenty days. See N.Y. C.P.L.R. §§ 311 and 320. Yet, as of November 16, 2023, more than twenty days from the date of service and before the Removal Notice was filed, neither Deloitte nor Meta had responded to the Complaint in State Court. (Mot. Exhs. A & C).
Defendants contend, in cursory fashion, that they did not default in State Court because the Summons served on the registered agent lacked a case number and was therefore “defective.” (Del. Opp. at 2-3, 5 n.2; see Meta Opp. at 5). The Court need not consider the service issue, however, because it agrees with Defendants' further argument that, even if they were in default, the removal is still valid. (Del. Opp. at 5-6 and Meta Opp. at 1, 5-6, both relying on Russell v. Lamothermic Precision Casting Corp., No. 19 Civ. 2310 (NSR), 2020 WL 61139 (S.D.N.Y. Jan. 6, 2020)).
In Russell, as in the instant case, the notice of removal was not filed until after the plaintiff had advised defendants that they were in default in state court. Plaintiff moved for remand, arguing that defendants were not entitled to remove the action because of their state-court default. 2020 WL 61139, at *1-2. Judge Roman squarely rejected that argument and denied the remand motion, noting that “Plaintiff has identified no case standing for his proposed rule that a party's default in state court alone precludes removal.” Id. at 4; see also Vasquez v. J.M. Prods., Inc., No. 04 Civ. 3019 (RMB) (DFE), 2004 WL 1124646, at *3 (S.D.N.Y. May 20, 2004) (similarly rejecting, as “unsupported by either the facts or the law,” plaintiff's claim that “since all defendants are presently in default in State Court they are precluded from filing for removal”).
As Shukla notes (Reply at 15), the plaintiff in Russell “did not take any steps to hold Defendants in default prior to removal,” 2020 WL 61139, at *4, whereas here, Shuka moved for entry of a default judgment. But as the Russell court specifically found, this distinction does not make a difference: “Even if [plaintiff] had” taken such steps, “that would not, by itself, divest this Court of jurisdiction over [p]laintiffs claims.” Id. Indeed, as Judge Roman noted, “courts in this Circuit have heard claims removed from state court even where a default judgment has been entered against the defendant at the state level.” Id. (emphasis added).Here, of course, no default judgment has been entered against Deloitte or Meta and the State Court denied Shukla's motion as moot and disposed of the case. (Dkt. No. 29 Exh. A).
In his Reply, Shukla contends that the Russell decision “is not available to the plaintiff and its authenticity cannot be determined by the plaintiff.” (Reply at 15; see also id. at 2 n.1 (asserting that “plaintiff is unable to locate this case citation anywhere”)). This contention is difficult to square with Plaintiff's reliance on the above-quoted portion of Russell, which was not cited or alluded to in Defendants' briefs. Moreover, both defense counsel represented that they provided Shukla with copies of all unpublished cases and other authorities cited in their brief, as required by Local Civ. R. 7.2. (Dkt Nos. 27, 30).
Judge Roman cited, among other examples, Marks v. Blount-Lee, No. 16 Civ. 3524, 2017 WL 3098094 (E.D.N.Y. July 20, 2017) (finding that state court's entry of default judgment against defendant was void, and that even if it were not void, the court would exercise its discretion to vacate the default judgment following removal); Tarbell v. Jacobs, 856 F.Supp. 101, 103-05 (N.D.N.Y. 1994) (finding that a default judgment which the state judge had signed, but the clerk of court had not filed at the time of removal, was ineffective, and that even if it were effective, a federal court could properly decide that, since the defendant answered the complaint in accordance with Fed.R.Civ.P. 81(c), removal was appropriate).
The State Court's ultimate denial of Plaintiff's default judgment highlights the fallacy of Shukla's assertion that Defendants' purported default was “instantly enforceable.” (See Mot. at 8-12). In fact, once the action was removed, the State Court lacked any power to enter a default judgment. Shukla, 2020 WL 949426, at *6 (noting the state court is “divested of jurisdiction upon removal”); see also Lipin v. Danske Bank, 13 N.Y.S.3d 389, 390 (1st Dep't 2015) (affirming denial of “plaintiff's motion for a default judgment . . . on the ground that the court lacked jurisdiction due to removal of the action to federal court”). In further support of this same argument, Shukla relies (Reply at 16) on Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 187 (3d Cir. 1942), for the proposition that default is a “purely formal matter.” Orange Theatre Corp. is inapplicable to the instant case. There, the Third Circuit held that stipulations extending the defendants' time to answer were ineffective because they had not been approved by the district judge and that the defendants were therefore “in default” even though no default judgment had been entered. Id. at 187. However, the court specifically noted that the defendants could apply for permission to answer and suggested the district judge grant such permission, id., which the district judge subsequently did, see Orange Theatre Corp. v. Rayherstz v. Amusement Corp., 139 F.3d 871, 872 (3d Cir. 1944). Regardless, Orange Theatre was not a removal case and thus did not address whether a defendant who defaults in an action filed in state court may remove the action to federal court.
As Russell (and Vasquez) hold, where a defendant fulfills the federal statutory requirements for removal, despite being in default in state court, removal is proper. Russell, 2020 WL 61139, at *4-5; Vasquez, 2004 WL 1124646, at *3.
Numerous other federal courts across the country have reached the same conclusion. See, e.g., Davalos v. Gossett, No. 22-cv-01921-LTB-GPG, 2023 WL 386728, at *1 (D. Colo. Jan. 4, 2023) (“a case may be removed to federal court even if the defendant misses a state court deadline to answer”); Branson v. City of Los Angeles, CV 11-00565 MMM (JEMx), 2011 WL 13220154, at *2-3 (C.D. Cal. Apr. 21, 2011) (rejecting contention that “removal was improper because defendants were in default in state court” where plaintiff had requested entry of default but default had not been entered as of time of removal); 1 Foot 2 Foot Ctr. for Foot & Ankle Care, P.C. v. Davlong Bus. Sols., LLC, 631 F.Supp.2d 754, 756 (E.D. Va. 2009) (“A defendant in default in state court is not prevented from removing to federal court, when it would be proper otherwise.”) (citation omitted). As was the case in Russell, Shukla points to no contrary authority. See 2020 WL 61139, at *4.
Therefore, even if Defendants were properly served on October 26, 2023 and were in default as of the time the Removal Notice was filed on November 17, 2023, this action was still removable. Accordingly, Shukla's argument must be rejected.
C. Defendants Did Not Waive Their Right to Removal
Plaintiff also advances the theory that both Defendants have waived their statutory rights to remove this action to federal court because they evidenced an intention to litigate in state court. (See Mot. at 12-14, 15-16).
A court may find waiver of removal where a defendant has taken “affirmative steps in state court that are inconsistent with removal.” Stemmle v. Interlake S.S. Co., 198 F.Supp.3d 149, 165 (E.D.N.Y. 2016). However, “[a]ny waiver of the right of removal ‘must be clear and unequivocal.'” J.P. Morgan Chase Bank, N.A. v. Reijtenbagh, 611 F.Supp.2d 389, 390 (S.D.N.Y. 2009) (quoting John's Insulation, Inc. v. Siska Constr. Co., 671 F.Supp. 289, 294 (S.D.N.Y. 1987)); see also Webb v. Harrison, No. 14 Civ. 5366 (RJS), 2015 WL 500179, at *5 (S.D.N.Y. Feb. 5, 2015) (noting existence of some, though “scant,” authority for proposition that defendants may “waive their right to remove where they demonstrate an intention to litigate in the state forum”) (citation omitted).
The Court rejects Shukla's waiver argument, as Defendants took no affirmative steps to litigate this case in State Court, let alone steps inconsistent with removal, and never evidenced an intention to litigate this case in State Court. Though Shukla relies on Defendants' requested extension to respond to his Complaint, Defendants sought this extension to respond to the Complaint in this Court, not in State Court. (See Meta Opp. at 6; Dkt. No. 13). In recognition of that fact, Judge Clarke granted the Defendants' joint extension request on November 21, 2023. (Dkt. No. 14).
Moreover, as Deloitte points out, and the State Court docket reflects, Defendants never made any filings in the State Court except for notifying the State Court of the removal to federal court. (Del. Opp. at 7; State Court Dkt. Nos. 1820). That notification, which was required under 28 U.S.C. § 1446(d), does not reflect an intention to litigate in State Court-it reflects the precise opposite. Thus, contrary to Plaintiff's assertions, Defendants' filings in this case demonstrate only an intent to litigate in this Court, not the State Court.
The cases cited by Shukla in support of his waiver theory are inapposite. (See Mot. at 16). In Isaacs v. Grp. Health, Inc., 668 F.Supp. 306, 313-314 (S.D.N.Y. 1987), the court held that defendants who filed an answer with counterclaims and cross claims in state court waived their right to remove. In Zbranek v. Hofheinz, 727 F.Supp. 324, 325-26 (E.D. Tex. 1989), waiver was found where the defendants did not meet federal statutory deadlines and participated in “extensive” hearings and motion practice in state court. In both of these cases, defendants engaged in significant litigation practice in the state court prior to removal, unlike Defendants here, who engaged in none at all.
Shukla's final waiver argument focuses on Deloitte's filing (together with its Removal Notice) of a Related Case Statement in this Court pursuant to Local Civ. R. 1.6(a). (Mot. at 15-17; see Dkt. No. 2 (designating the instant action as related to three prior actions by Shukla against Deloitte in the Southern District of New York)). This argument fails. The Related Case Statement was not filed in State Court, nor did it seek any relief from the State Court or contemplate any further proceedings in the State Court. Instead, filings of this type enable litigants in this federal district court to comply with their “duty” under Local Civ. R. 1.6(a) to inform the Court of any past or parallel litigation between two or more of the same or similarly situated parties. In sum, the Court finds all of Shukla's waiver arguments to be unpersuasive.
D. The Removal Was Procedurally Proper
Shukla's arguments that the removal was procedurally defective fare no better. Procedures for removal are set forth in 28 U.S.C. § 1446. As relevant here, Section 1446 requires (1) that the notice of removal contain “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action,” 28 U.S.C. § 1446(a); (2) that the notice be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based,” id. § 1446(b)(1); (3) that “all defendants who have been properly joined and served must join in or consent to the removal of the action,” id. § 1446(b)(2)(A); and (4) that promptly after filing of the notice of removal, the removing defendant “give written notice thereof to all adverse parties” and file a copy of the notice with the state court, id. § 1446(d).
Shukla argues that the removal was procedurally improper because Deloitte failed to attach all the State Court files. (See Mot. at 17). Specifically, he argues, “removal was defective due to absence of state court papers such as (a) procedural Motions and Filings by the Plaintiff in State Court, (b) returns of hard-copy service, and (c) Affidavit of Service of Summons and Complaint[.]” (Id. at 17 (citation omitted)). This argument fails for two reasons.
First, under Section 1446(a), Deloitte was only required to include a copy of “all process, pleadings, and orders served” upon it. See Pietrangelo v. Alvas Corp., 664 F.Supp.2d 420, 431 n.2 (D. Vt. 2009) (rejecting as “without merit” plaintiff's argument that various state court notices and requests for waiver of service were not attached to removal notice, as “[t]hese documents . . . were unnecessary under 28 U.S.C. § 1446(a)”). Deloitte complied with this requirement; it attached to its Removal Notice the Summons and Complaint, as well as the State Court docket sheet as of the time of removal. (Rem. Not. & Exhs. A-D). Based on a review of the docket, there were no other process or pleadings and no orders in the action as of that time.
Second, even if Deloitte had failed to attach all the State Court papers required under Section 1446(a), such a technical defect would not require a remand of the action back to State Court, especially since Deloitte did include the State Court docket sheet showing all filings in the action. See Pizarro v. Langer Transp. Corp., No. 21 Civ. 5439 (ER), 2021 WL 5326433, at *3 (S.D.N.Y. Nov. 16, 2021) (failure to attach copy of state court order in notice of removal “is merely a procedural defect, and is not grounds for remand”).
Shukla also contends that Deloitte's service on Meta of the Removal Notice did not comply with federal law. (See Mot. at 16-19). But as Meta notes, under Section 1446(d), a party who files a notice of removal need only give written notice to “all adverse parties.” (Meta. Opp. at 7 (quoting 28 U.S.C. § 1446(d)). The Court finds no indication that the two co-defendants is this matter, Deloitte and Meta, are adverse. Moreover, even if Section 1446(d) could be read to require service on a non-adverse co-defendant, Deloitte's service on Meta was proper because “Meta consented to receive service of the [Removal Notice] by email.” (Id.; see also Fed.R.Civ.P. 5(b)(2)(E) (“A paper is served under this rule by . . . sending it by electronic means that the person consented to in writing.”)).
Shukla does not dispute compliance with the remaining procedural requirements outlined above, nor could he. As for the timing element, Shukla filed his Complaint on October 26, 2023. (See State Court Dkt. No. 1). Assuming that this date was the earliest possible date on which Defendants could have received a copy of the Complaint “through service or otherwise,” under Section 1446(b)(1), Defendants had until November 25, 2023 to remove this action. They did so on November 17, 2023, with more than a week to spare. (See Removal Notice). Further, Deloitte included with its Removal Notice a document on behalf of Meta consenting to and joining in the removal. (Dkt. No. 1-2). Thus, Shukla's procedural challenges to the removal are without merit.
E. Defendants Have Not Acted in Bad Faith
Plaintiff also argues that Deloitte is acting with “malicious intent” to “intentionally delay” a decision on the merits on his discrimination claims by “requesting . . . improper extensions,” and that Deloitte “has made several misrepresentations and indulged in willful misconduct.”(Mot. at 3-5).
The Court cannot discern what alleged “mis-representations” Shukla refers to in his Motion. Nor are any misrepresentations apparent from a review of the Removal Notice.
These arguments, too, lack merit. Defendants' single request for a thirty-day extension of time to respond to the Complaint and an eleven-day extension of time to respond to Plaintiff's remand motion-which this Court granted (Dkt. No. 14)- cannot fairly be viewed as unreasonable, improper, or a delay tactic. Moreover, Defendants have already filed timely motions to dismiss in this matter, which are currently pending before the Court. (See Dkt. Nos. 36-38; 41-43). Rather than evidencing a strategy of delay, both Shukla and Defendants have vigorously litigated this case in a prompt manner.
Shukla also argues that Defendants “have failed to provide a valid reason for removal,” which he suggests is necessary given that his claims “could be litigated” in either state or federal court. (Mot. at 20-21). Contrary to Shukla's argument, Section 1446 does not require a defendant to provide a reason regarding its removal in the notice of removal or explain why it is preferable for the litigation to proceed in federal court if the state court would also have jurisdiction. As Judge Aaron found in denying Shukla's motion to remand a prior action that Deloitte removed to this Court, “Defendant was not acting in bad faith by exercising its right to litigate federal claims in federal court.” Shukla, 2020 WL 949426, at *6; see also Willis v. Portfolio Recovery Assocs., No. 17 Civ. 119 (RP) (JCM), 2017 WL 11236968, at *2 (W.D. Tex. Aug. 2, 2017) (“It is irrelevant-for purposes of whether removal is proper-whether a state court also has jurisdiction over the action.”).
As Judge Aaron also noted, while Plaintiff may have hoped to litigate this action in the State Court rather than in this Court, “Plaintiff is the architect of this situation” because his Complaint contains various federal claims, “thereby entitling Defendant to remove the case to this Court” pursuant to the federal removal laws discussed here. Shukla, 2020 WL 949426, at *6. That is the consequence of including federal claims in a state court complaint. With Judge Aaron's prior opinion in hand, today's decision should not be surprising to Plaintiff.
CONCLUSION
For the foregoing reasons, the undersigned respectfully recommends that Plaintiff's motion to remand be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. Section 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen days, inclusive of weekends and holidays, from the date of this Report and Recommendation to file written objections thereto. See also Fed. R. Civ. 6(a), (b), and (d). Any such objections shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be directed to Judge Clarke. A failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner v. Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).