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Michael Kennedy v. Susan Rockwell

August 21, 2012

MICHAEL KENNEDY
v.
SUSAN ROCKWELL



The opinion of the court was delivered by: Honorable J. Garvan Murtha United States District Judge

OPINION AND ORDER (Docs. 4, 15, 16, 17 and 19)

Susan Rockwell, an attorney proceeding in this case pro se, is the subject of a disability proceeding being brought by Vermont Disciplinary Counsel Michael Kennedy. That proceeding was initiated in the Vermont Supreme Court, and was subsequently assigned to a hearing panel of the Vermont Professional Responsibility Board.

Rockwell commenced this case by filing a Notice of Removal and removing the disability proceeding to this Court. Her Notice of Removal includes a series of counterclaims, some of which allege violations of federal law. Kennedy has filed a motion to remand. For the reasons set forth below, the motion to remand is GRANTED, and this case is REMANDED to state court.

Factual Background

In October 2011, Kennedy opened a disciplinary investigation into Rockwell's conduct as an attorney. He subsequently petitioned the Vermont Supreme Court for the immediate interim suspension of Rockwell's law license. On November 29, 2011, the Vermont Supreme Court, acting under its own administrative procedures, granted the petition.

On December 13, 2011, Kennedy filed a petition to commence formal disability proceedings ("Petition") against Rockwell in the Vermont Supreme Court. On January 3, 2012, Kennedy sent a copy of the Petition to Rockwell via certified mail. Rockwell signed for receipt of the Petition on January 19, 2012.

In an Entry Order dated January 11, 2012, the Vermont Supreme Court directed the Professional Responsibility Board ("Board") to appoint a hearing panel to hear the Petition. The court also authorized the Board to appoint counsel for Rockwell. The Petition was assigned to a hearing panel on January 17, 2012, and counsel was appointed on February 1, 2012.

On February 22, 2012, this Court received Rockwell's pro se Notice of Removal. The Notice bears the docket number of the state court proceeding, names Kennedy as the petitioner, and contends that removal is proper because "this case . . . arose under violations of the Americans With Disabilities Act" and various constitutional provisions. (Doc. 1 at 1.) The Notice also asserts counterclaims alleging denial of access to the courts; libel per se; illegal searches; "reprisal" for protected speech; breach of confidentiality; civil rights allegations; and a wrongful "bill of attainder." Id. at 14. For relief, Rockwell seeks a retraction of defamatory statements, an order requiring an end to all state investigations, and damages. Id. at 15.

On March 13, 2012, Rockwell filed an Amended Notice of Removal and Amended Counterclaim, again alleging violations of her federal constitutional rights and the Americans with Disabilities Act. The Amended Notice also details various filings and other events that occurred during the thirty-day period prior to her amendment. (Doc. 8 at 4-6.)

Kennedy moves to remand the case, arguing Rockwell did not file her Notice of Removal in a timely fashion, and that there is no basis for federal jurisdiction. In the alternative, Kennedy contends the Court should abstain under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971).

Discussion

I. Timeliness

A defendant must file a notice of removal "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading . . . ." 28 U.S.C. § 1446(b)(1). Rockwell received the Petition by certified mail, restricted delivery, on January 19, 2012. She dated and filed her Notice of Removal thirty-four days later, on February 22, 2012.

The thirty-day deadline for removal is "rigorously" enforced. Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir. 1991) ("[A]bsent a finding of waiver or estoppel, federal courts rigorously enforce the statute's thirty-day filing requirement."); see Evans v. Sroka, 2001 WL 1160586, at *3 (S.D.N.Y. Oct. 2, 2001) ("This time limit, although not jurisdictional, is strictly construed and mandatorily enforced.") If there is a defect in the removal procedure, courts are authorized to remand a case to the state court in which the action originated. 28 U.S.C. ยง 1447(c); see also LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 72 (2d Cir. 1994). While a procedural defect in removal does not deprive a federal court of jurisdiction, all doubts as to the procedural validity of removal will be resolved in favor of remand. See Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432, 437 (S.D.N.Y. 2006); see also Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998) (stating that "[t]here is nothing in the removal statute that suggests that a district court has 'discretion' to overlook or excuse prescribed procedures." ...


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