176 Carlou CT Group Corp. v. Alberti et al
| 176 Carlou CT Group Corp. |
| Jane Doe 1-3, Wayne Alberti and John Doe 1-3 |
| 2:2018cv06036 |
| October 29, 2018 |
| US District Court for the Eastern District of New York |
| Joan M Azrack |
| Steven I Locke |
| Rent Lease & Ejectment |
| 28 U.S.C. ยง 1441 Petition for Removal |
| None |
Docket Report
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ORDER of Remand to State Court: On October 29, 2018, pro se respondent Wayne Alberti removed this eviction proceeding from the First District Court in Nassau County. Alberti invokes both federal question and diversity of citizenship as the basis of the Courts subject matter jurisdiction. The Court, however, lacks subject matter jurisdiction on both grounds. Notwithstanding the liberal pleading standard afforded to pro se litigants, federal courts are courts of limited jurisdiction and may not preside over cases if subject matter jurisdiction is lacking. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). Lack of subject matter jurisdiction cannot be waived and may be raised at any time by a party or by the Court sua sponte. Id.; Fed. R. Civ. P. 12(h)(3). First, this eviction proceeding does not arise under federal law because the petition neither invokes a federal cause of action nor does Petitioners right to relief depend on resolution of a substantial question of federal law. See Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006). To the extent Alberti premised removal on the presence of counterclaims or defenses based on federal law, that is not a basis for removal to federal court. See Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002). Second, diversity of citizenship is also not a viable basis for subject matter jurisdiction because complete diversity is lacking. Here, both parties are citizens of New York. Finally, Albertis request to submit additional briefing concerning the propriety of removal is denied. This notice of removal appears to be a frivolous attempt to obstruct the eviction proceeding in state court. Accordingly, this action is sua sponte remanded to the First District Court in Nassau County. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that, should respondent seek leave to appeal in forma pauperis, such status for the purpose of an appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a certified copy of this Order to the First District Court in Nassau County, New York. The Clerk of Court is also directed to mail a copy of this Order to pro se respondent Wayne Alberti. So Ordered by Judge Joan M. Azrack on 11/28/2018. (Ortiz, Grisel) (c/m to pro se)
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| Filing 3 Letter from Pro Se Office to Pro Se Litigant dated 10/31/2018 Re: This letter acknowledges receipt of your civil action(s). (Ortiz, Grisel) |
| Filing 2 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. (Cox, Dwayne) |
| Filing 1 NOTICE OF REMOVAL by Wayne Alberti, Jane Doe 1-3, John Doe 1-3 from District Court of the County of Nassau, First District Landlord Tenant Part, case number LT NO: 6059/18. Disclosure Statement on Civil Cover Sheet completed -No, (Attachments: #1 Exhibit A, #2 Civil Cover Sheet) (Cox, Dwayne) |
| FILING FEE: $ 400.00, receipt number 26434 (Cox, Dwayne) |
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