Frontier Park Co. v. Contreras

35 F. Supp. 3d 264, 2014 WL 3843845, 2014 U.S. Dist. LEXIS 107255
CourtDistrict Court, E.D. New York
DecidedAugust 5, 2014
DocketNo. 14-cv-03624 (ADS)(AKT)
StatusPublished
Cited by6 cases

This text of 35 F. Supp. 3d 264 (Frontier Park Co. v. Contreras) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frontier Park Co. v. Contreras, 35 F. Supp. 3d 264, 2014 WL 3843845, 2014 U.S. Dist. LEXIS 107255 (E.D.N.Y. 2014).

Opinion

[267]*267MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On or about May 5, 2014, the Petitioner-Landlord, Frontier Park Co. (the “Petitioner”) commenced 22 summary holdover proceedings pursuant to New York State Real Property Actions and Proceedings Law (“RPAPL”) Article 7 in the Second District Court of Lindenhurst, Babylon, New York. On both May 8 and May 13, 2014, in the state action, the Respondents filed certain counterclaims—namely, under the Equal Protection Clause of the 14th Amendment to the United States Constitution; the Fair Housing Act, 42 U.S.C. § 3601 et seq.; and other federal statutes.

On June 9, 2014, the Respondents removed these summary holdover proceedings, under one civil docket, to this Court on the basis of federal question jurisdiction.

Presently before the Court is the Petitioner’s motion pursuant to 28 U.S.C. 1447(c) to remand the 22 holdover proceedings to the state court and for costs and actual expenses, including attorney’s fees incurred as a result of the removal. The Petitioner argues that the removal petition (1) is untimely pursuant to 28 U.S.C. § 1446(a); (2) is defective due to the Respondents’ failure to file separate removal petitions for each summary holdover proceeding; and (3) fails to invoke subject matter jurisdiction. For the following reasons, the Court grants the Petitioner’s motion to remand and for costs and expenses.

I. DISCUSSION

A. The Timeliness of the Removal Petition

Initially, the Court addresses the issue of the timeliness of the removal petition. 28 U.S.C. § 1446 provides that “[t]he notice of removal of a civil action or proceeding shall 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.” 28 U.S.C. § 1446(b). “Subsection 1447(c) authorizes a remand on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction.” LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir.1994) (internal quotation marks and citations omitted). Failure to file within the 30-day filing period leads to an automatic defeat of the removal petition. See Bertrand v. Vingan, 899 F.Supp. 1198, 1199 (S.D.N.Y.1995) (noting that a defendant seeking removal must strictly comply with the statutory 30-day filing period requirements).

Indeed, the Supreme Court has held that “statutory procedures for removal are to be strictly construed,” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) “because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns.” In re NASDAQ Market Makers Antitrust Litigation, 929 F.Supp. 174, 178 (S.D.N.Y.1996)(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)) (“Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.”).

To that end, “all doubts should be resolved in favor of remand.” Leslie v. BancTec Service Corp., 928 F.Supp. 341, [268]*268347 (S.D.N.Y.1996) (internal quotation marks and citations omitted). Accordingly,, “absent waiver or estoppel, the thirty[-]day period cannot be extended by court order, stipulation of the parties, or otherwise.” Thomas v. Baldwin, 189 F.Supp.2d 1, 2 (E.D.N.Y.2002).

In this case, 17 of the underlying petitions were served on May 5, 2014 and five were served on May 6, 2014. The notice of removal was filed on June 9, 2014, respectively, 34 and 35 days, after receipt of the underlying petitions.

Nonetheless, the Respondents argue that their removal petition is timely under the provision of U.S.C. § 1446(b)(3), which provides as follows:

[I]f 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.

This “narrow judicially-created exception to the thirty-day rule [is] known as the revival exception.” In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., No. 1:00-1898(SAS), 2006 WL 1004725, at *3 (S.D.N.Y. Apr. 17, 2006)(“MTBE”); see also Tully v. Am. Fed’n of Gov’t Employees Local 3148, 00-CV-7664 (JG), 2001 WL 253034, at *2 (E.D.N.Y. Mar. 9, 2001). As explained by the Fifth Circuit:

“an amendment of the complaint will not revive the period for removal if a state court case previously was removable but the defendant failed to exercise his right to do so,” a different result generally is reached if the pleading amendment provides (1) a “new basis for removal” or (2) “changes the character of the litigation so as to make it substantially a new suit.”

Braud v. Transport Serv. Co. of Illinois, 445 F.3d 801, 806 (5th Cir.2006) (quoting 14C Wright, Miller & Cooper, Federal Practice and Procedure, § 3732 at 311-48). “The gist of this principle, then, is that where a defendant has failed to exercise its right to remove within § 1446(b)’s thirty-day period, the defendant’s right to remove can be ‘revived’ if the plaintiff amends the complaint, and in so doing dramatically changes the essential character of the action.” MG Bldg. Materials, Ltd. v. Paychex, Inc., 841 F.Supp.2d 740, 744 (W.D.N.Y.2012).

Here, the Respondents contend that a motion for summary judgment filed by the Petitioner in the state court triggered the U.S.C. § 1446(b)(3) exception. However, the Court finds that this “revival exception” does not save the Respondents’ untimely removal petition because the motion for summary judgment filed by the Petitioner in the state court did not change the nature of the underlying petitions seeking a judgment for possession and warrant of eviction so as to render it an effectively new lawsuit. Tully, 2001 WL 253034, at *2 (revival exception did not rescue the defendants’ untimely removal petition, where “the amendments to the complaint did not add any new claims at all; rather, they removed a preexisting state law claim”); MTBE, 2006 WL 1004725, at *3 (“where the newly added claims ‘bear no resemblance’ to the original allegations or the parties are realigned such that, for example, co-defendants become plaintiffs, a district court may apply the revival exception”) (citation omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
35 F. Supp. 3d 264, 2014 WL 3843845, 2014 U.S. Dist. LEXIS 107255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frontier-park-co-v-contreras-nyed-2014.