Gentile v. American Express Company
1:21-cv-07210
E.D.N.YApr 8, 2022Background:
- Pro se plaintiff Anthony Gentile sued several defendants (including American Express entities and debt-collection counsel) in Kings County, alleging FDCPA violations based on allegedly improper service in a prior debt collection action.
- Gentile initially filed a Summons with Notice alleging federal claims; defendants removed to federal court. After removal, Gentile filed a state-court complaint that omitted federal claims, and the case was remanded for lack of federal-question jurisdiction.
- On remand Gentile amended the state-court complaint to reassert FDCPA claims; defendants again removed to federal court within ten days of that amended pleading.
- Gentile moved to remand, arguing the second removal was procedurally improper: it reviewed a prior remand in violation of 28 U.S.C. § 1447, constituted an improper successive removal, and was untimely under 28 U.S.C. § 1446.
- The magistrate judge recommended denial of the remand motion, holding the second removal was not a prohibited successive removal (it was based on different grounds—the amended complaint), was timely under § 1446(b)(3), and was properly effected by notice rather than by motion.
- The R&R also denied Gentile’s request for oral argument; parties were advised of the 14-day objection period to the report and recommendation.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1447(d) bar and general rule against successive removals prohibit the second removal | Gentile: second removal impermissibly revisits prior remand and is a successive removal | Defendants: second removal is based on different pleading (amended complaint) so not the same-ground successive removal | Denied: removal allowed — different grounds (amended complaint) distinguish it from the first removal |
| Whether the second removal was timely under 28 U.S.C. § 1446 | Gentile: initial pleading was removable so § 1446(b)(1) applies and defendants’ removal was untimely (>30 days) | Defendants: § 1446(b)(3) controls where amendment first makes case removable; they removed within 30 days of the amended pleading | Denied: removal timely under § 1446(b)(3); clock runs from when removability is ascertainable |
| Whether defendants should have filed a motion/petition rather than a notice of removal | Gentile: defendants should have sought a different procedural vehicle | Defendants: removal by notice is the correct statutory procedure under § 1446 | Denied: notice of removal was proper under the statute |
| Whether federal-question jurisdiction exists | Gentile: did not contest federal jurisdiction in opposition | Defendants: FDCPA claims in the amended complaint create federal-question jurisdiction | Held: court has federal-question jurisdiction over FDCPA claims; jurisdiction not contested |
Key Cases Cited
- Fouad v. Milton Hershey School and School Trust, 523 F. Supp. 3d 648 (S.D.N.Y. 2021) (different-grounds rule limits § 1447(d) bar on reviewability of successive removals)
- St. Paul & C.R. Co. v. McLean, 108 U.S. 212 (1883) (successive-removal prohibition applies only to removals on the same grounds)
- Whitaker v. Am. Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001) (removal clock tied to when defendant can ascertain removability)
- Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (notice/ascertainability principles informing removal timing)
- Marcella v. Capital Dist. Physician’s Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002) (failure to timely object to a magistrate judge’s R&R generally waives further review)