US Court of Appeals Second Circuit Case 21-1575, Doc 6, Pre-Argument Statement on Appeal 07-12-2021

ong>Caseong> 2:20-cv-06291-NGG-SJB ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 47 Filed 05/27/ong>21ong> 3136178, Page62 16 ong>ofong> ong>ofong> 27 119 PageID #: 4351 10-mc-351, Order (Dkt. 5); Nov. 7, 2018 ECF Order; Order (Dkt. 6).) Almost two years later, in August 2020, Kernan submitted a request for reconsideration. (In re Kernan, 10-mc-351, Mot. for Reconsideration (Dkt. 7).) He was readmitted to the District on August 25, 2020. (In re Kernan, 10-mc-351, Aug. 25, 2020 ECF Order.) Kernan also applied for readmission to the Northern District ong>ofong> New York. The Northern District revoked his admission after initially accidentally readmitting him, and he challenged the revocation in the ong>Secondong> ong>Circuitong>. In re Kernan, 783 F. App’x 106 (2d Cir. 2019). He was represented in that litigation by attorney Frank Policelli, who is counsel for Oriska in the 29 pending actions before this court. See id. Kernan ultimately withdrew his appeal, and it does not appear that he has been reinstated in the Northern District ong>ofong> New York. REMAND OF THE REMOVED ACTIONS A. Legal Standard A defendant may remove an action from state court to federal district court if the latter court has original jurisdiction, 28 U.S.C. § 1441(a), and if the applicable procedural requirements are satisfied, 28 U.S.C. § 1446. “The right ong>ofong> removal is entirely a creature ong>ofong> statutes and . . . [the] statutory procedures for removal are to be strictly construed.” Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002). “In light ong>ofong> the congressional intent to restrict federal court jurisdiction, as well as the importance ong>ofong> preserving the independence ong>ofong> state governments, federal courts . . . resolv[e] any doubts against removability.” Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir.1994) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). On a motion to remand to state court, “the burden falls squarely upon the removing party to establish its right to a federal forum by competent proong>ofong>.” R.G. Barry Corp. v. Mushroom 16

ong>Caseong> 2:20-cv-06291-NGG-SJB ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 47 Filed 05/27/ong>21ong> 3136178, Page63 17 ong>ofong> ong>ofong> 27 119 PageID #: 4352 Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979). To carry its burden, the removing party must “demonstrate[e] both the existence ong>ofong> subject-matter jurisdiction and compliance with the relevant procedural requirements.” St. Vincent’s Hosp. ong>ofong> Staten Island v. Taylor, No. 07-cv-967 (ILG) (JO), 2007 WL 2325073, at *2 (E.D.N.Y. Aug. 10, 2007). “If the removing party cannot demonstrate federal jurisdiction by competent proong>ofong>, the removal was in error and the district court must remand the case to the court in which it was filed.” Hill v. Delta Int’l Mach. Corp., 386 F. Supp. 2d 427, 429 (S.D.N.Y. 2005). B. Discussion The Healthcare Employer defendants seek to remand the eighteen Removed ong>Caseong>s. 5 6 They argue that remand is necessary because the Class Defendants violated the rule ong>ofong> unanimity, one ong>ofong> the procedural requirements for removal; because the Class Representatives attempted to remove the actions to an improper federal venue; and because the operative complaints do not provide a basis for federal jurisdiction. (See, e.g., Oriska v. Avalon, ong>21ong>-cv-2040, Mem. in Support ong>ofong> Mot. to Remand (Dkt. 8-1) at 1- 2.) 7 5 Individual defendant Ira Lipsius also seeks remand. See Bay Park Ctr. For Nursing & Rehab., 20-cv-6291, Mot. to Remand (Dkt. 9) (E.D.N.Y. Jan. 19, 20ong>21ong>). 6 At the time ong>ofong> publication, these defendants have either moved to remand or requested leave to do so in each ong>ofong> the Removed Actions. Because ong>ofong> the redundancies among the cases, and in the interests ong>ofong> judicial efficiency and economy, this court decides the remand issue sua sponte in the cases where it has not yet been briefed. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (District courts have the inherent authority “to manage their own affairs so as to achieve the orderly and expeditious disposition ong>ofong> cases”.). 7 In certain actions, the remanding parties additionally argue that removal was untimely. (See, e.g., Oriska v. Hodge, ong>21ong>-cv-1999, Mem. in Support ong>ofong> 17