Ocean Vacations Realty Trust et al v. Green et al
| Ocean Vcations Realty Trust, Ocean Development Partners LLC, Ocean Realty Partners LLC, Nicholas Fiorillo and Ocean Vacations Realty Trust |
| Raymond Green, Joan Green, Spiro Stylianopoulos, Nicholas Nesgos, David Reier, Raymond C. Green Lending Trust, Raymond Green Companies, Inc., Law Firm of Arentfox Schiff LLP, Steven Dean and Dean Auction Assocs. |
| 1:2022cv11774 |
| October 21, 2022 |
| US District Court for the District of Massachusetts |
| Allison D Burroughs |
| Negotiable Instrument |
| None |
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| Filing 8 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Nicholas Fiorillo (as Trustee). (Attachments: #1 Letter from Court of Appeals re Misdirected Filing)(McManus, Caetlin) |
| Filing 7 USCA Case Number 22-1839 for #5 Notice of Appeal, filed by Nicholas Fiorillo. (Paine, Matthew) |
| Filing 6 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re #5 Notice of Appeal. (Paine, Matthew) |
| Filing 5 NOTICE OF APPEAL as to 3 Order and #4 Order of Remand to the State Court, by Nicholas Fiorillo(as Trustee) NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at #http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at #http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at #http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 11/16/2022. (McManus, Caetlin) |
| Filing 4 Judge Allison D. Burroughs: ORDER entered. ORDER OF REMAND to the State Court. (McManus, Caetlin) |
| Filing 3 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. "This action is REMANDED to the Suffolk County Superior Court pursuant to 28 U.S.C. 1447(c) for lack of subject matter jurisdiction. In accordance with Local Rule 81.1(d), because there is no reason for delayed remand, the Clerk is directed to enter an order of remand forthwith, to notify the Superior Court pursuant to 28 U.S.C. 1447(c), and then to close this case. Plaintiff purports to remove a civil action from Suffolk County Superior Court styled Ocean Vacations Realty Trust et al. v. Raymond Green et al., Civ. No. 2284CV01329. Pursuant to 28 U.S.C. 1447(c), with respect to removed actions, [i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. Subject matter jurisdiction under Section 1447(c) can be entertained at any time and it can be either raised by the Court sua sponte or by the parties to the proceedings. Rivera Narvaez v. JC Penney Puerto Rico, Inc., Civ. No. 18-1896-RAM, 2019 WL 3941104 at *2 (D.P.R. Aug. 20, 2019) (citation and quotations omitted). The Court also has an independent obligation to inquire into its subject matter jurisdiction. See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004). Although plaintiff purports to remove the action pursuant to 28 U.S.C. 1443 and 1446, those statutes only permit a "defendant" to remove an action. Indeed, "28 U.S.C. 1441(a)[,] does not authorize a plaintiff to remove his own civil action from state court to federal court. Removal is only available to defendants." Hurd v. USIC LLC, No. 8:21CV295, 2021 WL 4596994, at *1 (D. Neb. Aug. 24, 2021) (emphasis original); Sreedhar v. Google LLC, No. CV 22-10322-RGS, 2022 WL 1539013, at *2 (D. Mass. May 16, 2022) (Stearns, J.) ("[O]nly a defendant has the power of removal.") (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). Put another way, "the law is clear that [a state court plaintiff] may not remove [her] own [state] action." Black v. Kilmartin, No. CA 11-265 M, 2011 WL 2971548, at *1 (D.R.I. July 6, 2011) (collecting cases), report and recommendation adopted, No. CA 11-265M, 2011 WL 2971359 (D.R.I. July 20, 2011). To be sure there are narrow exceptions where Congress has permitted a plaintiff to remove an action, see 28 U.S.C. 1454(b)(1) (permitting removal in patent, plant variety protection, and copyright to be removed by "any party"), but those limited exceptions do not apply here."(PSSA, 5) |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Allison D. Burroughs assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Jennifer C. Boal. (Finn, Mary) |
| Filing 1 NOTICE OF REMOVAL by Nicholas Fiorillo(individually) (Attachments: #1 Exhibit - State Court Records, #2 Civil Cover Sheet & Category Form, #3 Cover Letter). (de Oliveira, Flaviana) |
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