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, Page66 20 ong>ofong> ong>ofong> 27 119 PageID #: 4355 2. Improper Venue The Class Representatives contend that the Eastern District ong>ofong> New York is not the proper venue for the Removed Actions. The actions were coordinated in Oneida County for pre-trial purposes, and Oriska was granted permission to try the cases in the counties in which they were originally filed. (See, e.g., Bay Park Ctr., 20-cv-6291, State ong>Courtong> ong>Docong>ket at 3 (entering an order to transfer venue on September 30, 2020).) At the time ong>ofong> removal, the cases remained in the pre-trial stage in Oneida County and had not been returned to their original counties for trial. Thus, the Class Representatives were required to file any notice ong>ofong> removal in the Northern District ong>ofong> New York, where Oneida County is situated. See 28 U.S.C. § 1446(a) (requiring a removing defendant to file the notice ong>ofong> removal “in the district court ong>ofong> the United States for the district and division within which such action is pending”). It is notable that Kernan, their counsel, has been disbarred from the Northern District and that he was readmitted to the Eastern District only a few months prior to attempting to remove these actions to this District. These circumstances suggest that his removal to an improper venue may have been a willful attempt to avoid the Northern District, where he cannot practice law. In any event, remand ong>ofong> the Removed Actions is warranted because the Class Representatives attempted to remove them to an improper federal venue. 3. Federal Jurisdiction The parties seeking remand also argue that the federal district court does not have jurisdiction over the eighteen Removed Actions because the operative complaints do not raise any federal causes ong>ofong> action. The parties seeking to remand the Nassau County Action are correct. Based on the parties’ submissions, the court lacks sufficient information to reach a conclusion as to its jurisdiction over the other seventeen Removed Actions. 20

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, Page67 ong>21ong> ong>ofong> ong>ofong> 27 119 PageID #: 4356 “Only state-court actions that originally could have been filed in federal court may be removed to federal court.” Caterpillar. Inc. v. Williams, 482 U.S. 386, 392 (1987). For removal based on federal question jurisdiction pursuant to 28 U.S.C. § 1331, “jurisdiction exists only when the plaintiff’s own cause ong>ofong> action is based on federal law as demonstrated on the face ong>ofong> a wellpleaded complaint.” Arrow Financial Servs. LLC v. Massil, No. 08- cv-437 (NGG), 2009 WL 348553, at *2 (E.D.N.Y. Feb. 11, 2009). Because ong>ofong> this principle, courts routinely reject removal attempts made by third-party and intervenor litigants. See, e.g., Arrow Fin. Servs., 2009 WL 348553, at *2 (“It is clear . . . that the jurisdiction ong>ofong> the district court over the claims ong>ofong> the plaintiffs is not enhanced by third party complaints.”); Childs v. Valente, No. 1:07- cv-18, 2007 WL 805820, at *1 (D. Vt. Mar. 15, 2007) (explaining that the intervenor litigant’s argument for removal “runs counter to substantial case law holding removal may not be predicated on an intervening petition or complaint”). The complete preemption doctrine is a corollary to the wellpleaded complaint rule. Caterpillar Inc., 482 U.S. at 393. This doctrine provides that an action may not be removed on the basis ong>ofong> a federal defense, including a preemption defense, unless federal law completely preempts the relevant area ong>ofong> state law. Id. This doctrine authorizes removal in a limited set ong>ofong> circumstances, including when state law claims are completely preempted by Section 502 ong>ofong> ERISA. See Aetna Health Inc. v. Davila, 542 U.S. 200, 204 (2004). Oriska and the Class Representatives contend that removal is proper under the complete preemption doctrine based on the claims in the original state court complaint, which they argue is an artfully pleaded attempt to recover million in fund benefits governed by ERISA. (See Class Opp. at 8-12.) This court does not have jurisdiction over the removed Nassau County Action. The operative Amended Complaint asserts only ong>21ong>