MTGLQ Investors, L.P. v. Papapietro et al
| MTGLQ Investors, L.P. |
| Anthony Papapietro, Rocco Papapietro, Jr., New York City Environmental Control Board, New York City Parking Violation Bureau and Joseph Papapietro |
| 1:2023cv00061 |
| January 5, 2023 |
| US District Court for the Eastern District of New York |
| Rachel P Kovner |
| Vera M Scanlon |
| Other Statutory Actions |
| 28 U.S.C. ยง 1441 Notice of Removal |
| None |
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ORDER REMANDING CASE: On 1/12/2023, the Court ordered defendants to show cause why this action should not be remanded to state court. See 1/12/2023 Order to Show Cause. The Court has received defendants' Response #4 , which fails to establish that federal jurisdiction exists. Defendants seek to invoke supplemental jurisdiction, federal question jurisdiction, and diversity jurisdiction. See Response 1-4 (Dkt. #4). As the Court has previously explained, supplemental jurisdiction does not provide a basis for removal "even if the action which a defendant seeks to remove is related to another action over which the federal district court already has subject-matter jurisdiction, and even if removal would be efficient." Port Auth. Of New York & New Jersey v. Allianz Ins. Co., 443 F. Supp. 2d 548, 555 (S.D.N.Y. 2006) (citation omitted); see 8/16/2022 Order Remanding Case, Papapietro v. Clott, No. 22-CV-3409 (E.D.N.Y.). Relatedly, federal-question jurisdiction does not exist because this foreclosure action does not involve any federal claims, see Not. of Removal 2-10, regardless of whether this action "stems from" another federal action, Response 3. And because defendants are citizens of New York and this action was initially filed in New York state court, see Not. of Removal 1-2, the "forum defendant rule" precludes removal based on diversity jurisdiction. See 28 U.S.C. 1441(b)(2) ("A civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."); Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705 (2d Cir. 2019). Independently, removal is improper because, as defendants concede, the notice of removal was not filed within 30 days after service of the initial pleading as required by 28 U.S.C. 1446(b)(1). See Response 4; Not. of Removal 3 (Dkt. #1) (filed 1/04/2023); Aff. of Service, MTGLQ Invs., L.P. v. Papapietro, No. 135187/2019 (N.Y. Sup. Ct.) (Dkt. #11) (service effected 4/29/2022). Accordingly, this action is remanded to the Supreme Court of the State of New York, Richmond County. Ordered by Judge Rachel P. Kovner on 2/01/2023. (Miyamoto, Matthew)
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| Filing 4 RESPONSE TO ORDER TO SHOW CAUSE by Anthony Papapietro, Joseph Papapietro, Rocco Papapietro, Jr. (IH) |
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ORDER TO SHOW CAUSE: Defendants are ordered to show cause by 1/26/2023 why this action should not be remanded to state court. District courts may sua sponte remand a case for lack of jurisdiction, see 28 U.S.C. 1447(c), or for procedural defects identified within 30 days of removal, see Mitskovski v. buffalo and Fort Erie Public Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006). The removal of this action appears to be improper for several reasons. First, the Court remanded this action to state court in August 2022, and defendants identify no new reason why the case is now removable. See 8/16/2022 Order Remanding Case, Papapietro v. Clott, No. 22-CV-3409 (E.D.N.Y.); Bank of Am. v. Pastorelli-Cuseo, No. 3:17-CV-1777 (SRU), 2017 WL 4678184, at *2 (D. Conn. Oct. 17, 2017) (18 U.S.C. 1447(d) "and the law of the case doctrine collectively bar 'a successive removal by the same party on the same grounds if nothing of significance has changed since the prior removal.'") (citation omitted) (collecting cases). Second, this Court appears to lack jurisdiction for substantially the same reasons the Court previously identified. See 7/20/2022 Order to Show Cause and 8/16/2022 Order Remanding Case, Papapietro v. Clott, No. 22-CV-3409 (E.D.N.Y.). Third, the #1 Notice of Removal was not filed within 30 days after service of the initial pleading as required by 28 U.S.C. 1446(b)(1). See Not. of Removal 3 (Dkt. #1) (filed 1/04/2023); Aff. of Service, MTGLQ Invs., L.P. v. Papapietro, No. 135187/2019 (N.Y. Sup. Ct.) (Dkt. #11) (service effected 4/29/2022). Finally, the Notice of Removal does not indicate that "all defendants who have been properly joined and served" in the action have "join[ed] in or consent[ed] to the removal of the action" as required by 28 U.S.C. 1446(b)(2)(A). See Not. of Removal 13. Ordered by Judge Rachel P. Kovner on 1/12/2023. (Miyamoto, Matthew)
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| Filing 3 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. (KD) |
| Filing 2 FILING FEE: $ 402, receipt number 100003877 (KD) |
| Filing 1 NOTICE OF REMOVAL by Anthony Papapietro from New York State Court County of Richmond, case number 135187/2019. (Attachments: #1 Civil Cover Sheet) (KD) |
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