Lovell v. L.I. Property Services Corporation et al
| Martin Lovell |
| L.I. Property Services Corporation, Neighborhood Assistance Corporation of America, Bank Of America, N.A., Neighborhood Assistance Corporation of America ("NACA") and Bank Of America |
| 2:2022cv01330 |
| March 10, 2022 |
| US District Court for the Eastern District of New York |
| Gary R Brown |
| James M Wicks |
| Civil Rights: Other |
| 28 U.S.C. ยง 1441 Notice of Removal |
| None |
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ORDER denying #4 Motion for Reconsideration filed by Bank Of America. Defendant Bank of America (BOA) removed this action pursuant to 28 USC Sec. 1441, having been served with a pro se complaint months earlier, but predicated upon the alleged later service of an Amended Complaint containing explicit references to federal statutes and regulations. By Electronic Order dated March 11, 2022, the Court remanded the action to state court, finding that BOA failed to comply with the 30 day time limit for removal. On March 14, the Clerk returned the file to the state court. BOA now seeks reconsideration, which plaintiff opposes.Reconsideration must be denied for three reasons. First, in its March 11 order, the Court determined [a] review of [the initial] complaint reveals that federal housing discrimination laws were implicated. DE 1-2. Protestations by BOA aside, this assessment remains. While the initial pro se complaint did not expressly cite federal law, it similarly did not cite any state law, thus any reasoned review of said instrument, applying principles of construction of pro se complaints (which require a broad reading under relevant Circuit caselaw) would suggest that a federal issue was raised. Second, on this motion, plaintiff raises a colorable claim that the amended complaint was, in fact, served on BOA more than thirty days before the filing of the removal petition. Third, even assuming, arguendo, that the remand was made in error, principles of judicial economy, comity and respect for the state court counsel against removing this case for a second time. See, e.g. O'Reilly v. Mackris, No. 21-CV-4466 (GRB), 2021 WL 3686314, at *5 (E.D.N.Y. Aug. 18, 2021) (The action must not ricochet back and forth depending upon the most recent determination of a federal court).In its motion, counsel for BOA takes pains to quote a portion of the March 11 Order entered by this Court as follows: Plaintiffs [sic] claims are preempted by applicable federal statutes. DE 4-4 at 5. As defined by the Oxford English Dictionary, [sic] constitutes [a] parenthetical insertion used in printing quotations or reported utterances to call attention to something anomalous or erroneous in the original. To the extent that this represents an effort by counsel to showcase a perceived grammatical error by the Court (and perhaps, by implication, further demonstrating the purportedly erroneous nature of the order), this effort misses the mark: the ECF system, offering only limited hypertext functionality, generally omits apostrophes on certain platforms. Ordered by Judge Gary R. Brown on 4/12/2022. (Brown, Gary)
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| Filing 10 REPLY in Support re #5 Reply in Opposition filed by Martin Lovell. (Tirado, Chelsea) |
| Filing 9 Pro Se Consent to Electronic Notification by Martin Lovell (Tirado, Chelsea) |
| Filing 8 AFFIDAVIT/DECLARATION in Support re #4 MOTION for Reconsideration re Order of Remand to State Court,,,,,, Exhibit A to Declaration of Mark Moore filed by Bank Of America. (Lipkin, Jason) |
| Filing 7 REPLY in Support re #5 Reply in Opposition, #4 MOTION for Reconsideration re Order of Remand to State Court,,,,,, filed by Bank Of America. (Attachments: #1 Affidavit in Support by Shawn Hirschthal, #2 Declaration by Mark Moore) (Lipkin, Jason) |
| Filing 6 NOTICE of Appearance by David A. Group on behalf of L.I. Property Services Corporation (aty to be noticed) (Tirado, Chelsea) |
| Filing 5 REPLY in Opposition re #4 MOTION for Reconsideration re Order of Remand to State Court,,,,,, filed by Martin Lovell. (Attachments: #1 Certificate of Service) (Tirado, Chelsea) |
| Filing 4 MOTION for Reconsideration re Order of Remand to State Court,,,,,, by Bank Of America. (Attachments: #1 Declaration Declaration in Support, #2 Exhibit A - Notice of Removal, #3 Exhibit B - Remand Order, #4 Memorandum in Support Memo of Law, #5 Certificate of Service Cert of Service) (Lipkin, Jason) |
| 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. (Jakubowski, Laura) |
| Filing 2 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (Jakubowski, Laura) |
| Case Assigned to Judge Gary R. Brown and Magistrate Judge James M. Wicks. 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. (Jakubowski, Laura) |
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Order of Remand to State Court. On March 10, 2022, defendant Bank of America removed this matter from the state court, based upon an amended complaint filed by the pro se plaintiff. According to the defendant, the notice of removal was timely because it was filed within 30 days of its receipt of an amended complaint, claiming that the initial complaint, filed and served months ago, "did not allege a violation of federal laws." DE 1 at 1. A review of that complaint reveals that federal housing discrimination laws were implicated. DE 1-2. That defendant had earlier notice that questions of federal law were at issue is established by defendant's state court verified answer, which sets forth, as an affirmative defense, that "Plaintiffs claims are pre-empted by applicable federal statutes." DE 1-2 at 34. As such, since the notice of removal was filed well outside the 30 day period after the service of the initial complaint, which did raise violations of federal law, the matter must be remanded. See 28 U.S.C. Sec. 1441(b)(1) (the notice of removal shall be filed within 30 days after the receipt by the defendant of the initial pleading or summons, whichever period is shorter); see also Taylor v. Medtronic, Inc., 15 F.4th 148, 152 (2d Cir. 2021) (removal procedures are to be strictly construed, with doubts resolved against removability). As such, the case is REMANDED to state court. The Clerk is to close the file. Ordered by Judge Gary R. Brown on 3/11/2022. (Brown, Gary)
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| Filing 1 NOTICE OF REMOVAL by Bank Of America from Supreme Court, County of Nassau, case number 000763/2021. Was the Disclosure Statement on Civil Cover Sheet completed -Yes ( Filing fee $ 402 receipt number ANYEDC-15366759) (Attachments: #1 Civil Cover Sheet, #2 Exhibit Ex A-State Court Documents) (Lipkin, Jason) Modified on 3/11/2022 (Jakubowski, Laura). |
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