Gabichvadze et al v. Expert Home Care Inc. et al
| Anna Gabichvadze, Luz Mery Albino Vinas, Glenny Rojas and Krystal Nazario |
| Expert Home Care Inc. and Elaine Horn |
| 1:2022cv01969 |
| April 6, 2022 |
| US District Court for the Eastern District of New York |
| Pamela K Chen |
| Taryn A Merkl |
| Contract: Other |
| 28 U.S.C. ยง 1332 Diversity-Notice of Removal |
| None |
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ORDER: Defendants removed this matter from state court on April 6, 2022. (Notice of Removal, Dkt. 1.) Plaintiffs have filed a #3 Motion to Remand. (Motion to Remand, Dkt. 3.) Ordinarily, the Court would permit Defendants an opportunity to respond. But here there are two indisputable facts that warrant remand of this matter back to state court. First, the Court has no jurisdiction over this matter. In their Notice of Removal, Defendants mystifyingly assert that "[t]he Complaint alleges, inter alia, claims for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., and thus [this case] arises under the laws of the United States. (Dkt. 1, para. 11.) In reality, however, the Complaint, which Defendants themselves attach to the Notice of Removal as Exhibit C, nowhere alleges a claim for violations of Title VII, instead asserting claims exclusively based on state law. Indeed, as Plaintiffs explain, Plaintiffs appear to be procedurally barred from bringing Title VII claims, and thus this Court lacks the ability to entertain a Title VII claim. (Dkt. 3, at 3-4); Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Second, Defendants' removal was untimely. Again mystifyingly, Defendants state that they "received copies of the Summons and Complaint in the State Court Action on March 6, 2022." (Notice of Removal, Dkt. 1, para 1.) That date, however, appears nowhere else in the Notice of Removal or any of its attachments. To the contrary, the Affidavits of Service that Defendants themselves submit along with the Notice of Removal indicate that Defendants were served on February 10, 2022, and February 18, 2022. (Dkt. 1-1, Exs. D & F.) For the reasons explained in Plaintiffs' Motion to Remand, that makes Defendants' attempt to remand untimely. (Motion to Remand, Dkt. 3, at 2-3); 28 U.S.C. 1446(a) ("The 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....); Fairfield Cornerstone at Farmingdale LLC v. Pritchett, No. 20-CV-207 (MKB), 2020 WL 1031490, at *2 (E.D.N.Y. Mar. 3, 2020) ("[F]ederal courts rigorously enforce [28 U.S.C. 1446(a)]'s thirty-day filing requirement." (quoting Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1046 (2d Cir. 1991))). Furthermore, there does not appear to be complete diversity between the parties to support diversity jurisdiction under 28 U.S.C. 1332. Accordingly, rather than permit Defendants to respond to Plaintiffs' motion for remand, this case is remanded to the Supreme Court of the State of New York, County of Kings, under Index No. 502449/2022, for lack of subject matter jurisdiction and untimeliness. Ordered by Judge Pamela K. Chen on 4/11/2022. (Stephan, Keegan)
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| Filing 6 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) |
| Filing 5 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) |
| Filing 4 Civil Cover Sheet.. Re #1 Notice of Removal by Expert Home Care Inc., Elaine Horn (Patel, Hamill) |
| Filing 3 MOTION to Remand to State Court by Anna Gabichvadze, Krystal Nazario, Glenny Rojas, Luz Mery Albino Vinas. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G) (Gourarie, Chaya) |
| This case has been opened in the Eastern District of New York. If you plan to continue representing your client(s), you must be admitted to practice before this court. You must do so by applying for Pro Hac Vice or permanent admission. To apply for Pro Hac Vice admission, you must first register for an ECF login and password. Please visit the Court's website at www.nyed.uscourts.gov/attorney-admissions for guidance. Once registered, you must electronically file a Motion to Appear Pro Hac Vice. You must pay the required pro hac vice fee online. (Bowens, Priscilla) |
| Case Assigned to Judge Pamela K. Chen and Magistrate Judge Taryn A. Merkl. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) |
| Filing 2 ANSWER to Complaint by All Defendants. (Patel, Hamill) |
| Notice: Re: Civil Cover Sheet. The Clerk's Office cannot assign this case without a completed Civil Cover Sheet. All questions *** INCLUDING the CERTIFICATION OF ARBITRATION ELIGIBILITY*** section on the second page needs to be answered. Please submit Civil Cover Sheet. (Bowens, Priscilla) |
| Filing 1 NOTICE OF REMOVAL by All Defendants from Supreme Court of NY - Kings County, case number 502449/2022. ( Filing fee $ 402 receipt number ANYEDC-15447762) (Attachments: #1 Exhibit A - F) (Patel, Hamill) |
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