Archer-Vail v. LHV Precast Inc.
1:17-cv-01113
N.D.N.Y.Oct 30, 2017Background
- Plaintiff Patricia A. Archer‑Vail sued as administratrix of John F. Vail’s estate (and individually) in Ulster County Supreme Court against LHV Precast Inc., Wieser Concrete Products, Wieser Roxana, Spillman Company, and fictitious ABC entities.
- Wieser Products and Wieser Roxana removed the action to the Northern District of New York on October 5, 2017, asserting diversity jurisdiction.
- LHV (a New York citizen) had been served and consented to the removal; Spillman’s consent was not indicated.
- Removal rested solely on diversity jurisdiction under 28 U.S.C. § 1332(a).
- The court found removal improper under 28 U.S.C. § 1441(b)(2) because a defendant (LHV) is a citizen of the state where the action was filed.
- The court sua sponte remanded the case to New York Supreme Court, Ulster County, and denied as moot pending motions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was proper despite a defendant being a citizen of the forum state | Archer‑Vail argued the case belongs in state court (implicit) | Removing defendants argued federal diversity jurisdiction supported removal | Removal improper under 28 U.S.C. § 1441(b)(2); remand ordered |
| Whether the court may sua sponte remand for procedural defect after removal | Archer‑Vail implicitly sought remand | Defendants relied on removal notice; at least one defendant consented | Court may sua sponte remand within 30 days for procedural defect; exercised that authority |
| Effect of procedural remand on pending motions to dismiss | N/A (procedural) | N/A (procedural) | Motions to dismiss denied as moot due to remand |
| Standard for construing removal statutes | N/A | N/A | Removal statutes construed narrowly; doubts resolved against removability |
Key Cases Cited
- Shapiro v. Logistec USA, Inc., 412 F.3d 307 (2d Cir. 2005) (treats § 1441(b)(2) as procedural rather than jurisdictional)
- Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127 (2d Cir. 2006) (district courts may sua sponte remand for procedural defects within 30 days)
- Confer v. Bristol‑Myers Squibb Co., 61 F. Supp. 3d 305 (S.D.N.Y. 2014) (courts construe removal statute narrowly and apply § 1441(b)(2) to bar removal when a forum defendant is served)