Opinion
736/04.
Decided March 24, 2004.
Isaac Shamie is a 92-year old disabled veteran, suing Empire Medical Services in the Small Claims Part because he was supplied with a defective wheelchair. According to Assistant United States Attorney Keisha-Ann G. Gray, Empire administers Medicare benefits under a contract with the United States Department of Health and Human Services. Mr. Shamie returned the defective wheelchair, and was told, he says, that he might wait five years for a replacement.
On March 10, 2004, the first trial date, Ms. Gray orally moved for dismissal of Mr. Shamie's action, on the ground that the Civil Court lacks subject matter jurisdiction over the claim. No motion papers were filed, no statutes or caselaw handed up, no affirmations or affidavits submitted, to establish the legal and factual foundation for the motion. No one attended for Empire other than Ms. Gray, and no one attended for Health and Human Services. This Court attempted strenuously to convince Ms. Gray to arrange for someone in the office of the U.S. Attorney to monitor Mr. Shamie's attempts to obtain a replacement wheelchair before his 97th birthday, but Ms. Gray insisted that the U.S. Attorney would do no more than provide Mr. Shamie with the name and telephone number of another person in the government's healthcare administration with whom he might speak.
The Court adjourned the action to a date to be determined when this judge would again be sitting in the Small Claims Part. In the interim, Mr. Shamie could continue his efforts to obtain a wheelchair, and the U.S. Attorney could move on proper papers for dismissal. Ms. Gray also suggested that Empire might remove the action to the Eastern District, and then move to dismiss for Mr. Shamie's failure to exhaust his administrative remedies. It must be as clear to Ms. Gray as it is to this judge that exhaustion may overtake Mr. Shamie before any administrative remedy. She may, indeed, be correct about the exhaustion doctrine, but there appears to be nothing in the law that would require that it be invoked, and much in common decency that would counsel against it.
Nevertheless, on March 11, a Notice of Removal was filed with the Eastern District, and a Notice of Filing of Notice of Removal was delivered to the Small Claims Park Clerk. The Notice of Removal advises the judges of the Eastern District that "an action pending in the District Court of the County of Nassau, First District Civil has been removed" to the Eastern District. In addition to this defect, and more importantly, the Notice of Removal states that Empire received the Notice of Claim and Summons "on or about February 4, 2004", which appears to render the removal untimely. ( See 28 USC § 1446[b] [2004].)
What should the Civil Court do with a Notice of Removal that on its face reveals such defects? There is language in several older New York cases that suggests that, at the least when there has been compliance with the requirements for removal, the state court loses "jurisdiction" when the notice is filed with the federal court. ( See Case Industrial Supply Co., Inc. v. Truck Drivers and Helpers Local 317, 43 AD2d 1012 [4th Dept 1974]; State of New York v. Fuller, 31 AD2d 71, 72 [2d Dept 1968]; Artists' Representatives Association, Inc. v. Haley, 26 AD2d 918 [1st Dept 1966].) But it appears more accurate to consider that, "until removal is finally determined, the State court's jurisdiction is not terminated but held in abeyance by the statute's direction that the State court refrain from action." ( City of New York v. New York Jets Fooball Club, Inc., 90 Misc 2d 311, 313-14 [Sup Ct, NY County 1977].)
Similarly, although language can be found that characterizes the time period for removal as jurisdictional ( see Walker v. Gunn, 511 F2d 1024, 1027 [9th Cir 1975]), that, too, is overstated:
"It is well established that § 1446(b)'s thirty day filing period, while not jurisdictional, is mandatory and failure to comply with it will defeat a defendant's removal petition . . . Moreover, this requirement has been interpreted strictly, for reasons of comity and the reluctance to interfere with a plaintiff's right to choose his own forum . . . Accordingly, absent waiver or estoppel, the thirty day period cannot be extended by court order, stipulation of the parties, or otherwise." ( Nicola Products Corp. v. Showart Kitchens, Inc., 682 FSupp 171, 172-73 [EDNY 1988]; see also Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F2d 1043, 1046 [3d Cir 1991]; Bryant v. Broadcast Music, Inc., 2004 US Dist LEXIS 2890, *5 [SDNY].)
Empire's Notice of Removal states no grounds for a finding of waiver or estoppel, and this Court is aware of none.
None of that, however, directly answers the question whether the state court may determine the effectiveness of an attempt at removal that appears defective on its face. There is nothing in the removal procedure that permits a challenge in state court. ( See Echevarria v. Silberglitt, 441 F2d 225, 227 [2d Cir 1971]; see also Brown v. National Presto Industries, Inc., 2001 Mich App LEXIS 1456, *6 [Ct Apps].) This is to be contrasted with an older removal statute that provided for a removal petition in the state court, and a state court finding that prima facie removal was appropriate. ( See Butler v. King, 781 F2d 486, 488 [5th Cir 1986].)
The language of the current statute is simple and direct. The filing of a notice of removal with the state court "shall effect removal and the state court shall proceed no further unless and until the case is remanded." ( 28 USC § 1446[d] [2004].) The conclusion must be that "[o]nly a federal court may determine whether a case has been improperly removed." ( Lewis v. C.J. Langenfelder Son, Jr., Inc., 266 Va 513, 517, 587 SE2d 697, 700 [Sup Ct 2003].)
The Notice of Filing of Notice of Removal advises the Civil Court that it "should transmit all papers filed on [this] action to the Clerk" of the Eastern District, and a cover letter from Ms. Gray advises the Clerk of the Small Claims Part, "you are required to transmit all papers filed" to the Eastern District. This Court is unaware of any provision of federal law that gives the U.S. Attorney the power to give such a direction to the Clerk of this court, and the statement that transmission of the state court file is "required" is inaccurate. Only the district court may require the transmittal. ( See 28 USC § 1447[b].)
In the interest of comity, and the hope that it will speed a favorable resolution for Mr. Shamie, this Court is directing the Clerk of the Small Claims Part to expeditiously deliver to the Clerk of the Eastern District the file card that is used to record the course of proceedings in the Part, together with a copy of this Decision and Order and any other papers related to this action. The Court is mailing a copy of this Decision and Order to Mr. Shamie and Ms. Gray.
This Court is fully confident that, at a time when our government is putting young men and women in harm's way halfway around the world, any Eastern District judge to whom Mr. Shamie's action is assigned will give his claim the attention, compassion and respect it deserves.