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>, 55 Filed 06/ong>21ong>/ong>21ong> 3136178, Page88 15 ong>ofong> ong>ofong> 18 119 PageID #: 4404 by [ERISA].’” Diduck v. Kaszycki & Sons Contrs., Inc., 974 F.2d 270, 287-88 (2d Cir. 1992). Here, the litigation involves violations ong>ofong> ERISA affecting employees’ rights for benefits. 31. I based the removal on the original complaint, and I believed in good faith that the language ong>ofong> the statute supported by position. The plain language ong>ofong> the statute governing removal, 28 U.S.C. Section 1446(b)(1), provides that the relevant pleading is the “initial pleading”: “The notice ong>ofong> removal ong>ofong> a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, ong>ofong> a copy ong>ofong> the initial pleading setting forth the claim for relief upon which such action or proceeding is based….” 32. This provision deals with actions that are removable at the time ong>ofong> commencement, and I believed in good faith it applied to this action. 33. A separate provision, 28 U.S.C. Section 1446(b)(3), governs actions which become removable by virtue ong>ofong> an “amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 34. Here, as explained at page 9 ong>ofong> my April 23, 20ong>21ong> Memorandum (see 20-cv-06291, Dkt. No. 40), I believed in good faith that the case was removable by virtue ong>ofong> the initial pleading, pursuant to 28 U.S.C. Section 1446(b)(1). 35. Moreover, as also explained at page 9 ong>ofong> my April 23 rd Memorandum, I also believed in good faith that the allegations in the Amended Complaint asserted claims for relief related to a fund governed by ERISA and, under the broad preemption principles, permitted removal. 36. I was not aware that “voluntariness principal bars removal by parties introduced through intervention.” (Order, at p. 22) This ong>Courtong> stated that “[t]o hold otherwise would deprive plaintiffs ong>ofong> their right to decide where to bring their lawsuit.” Id. However, the doctrine ong>ofong> removal inherently deprives plaintiffs ong>ofong> their right to decide where to bring their lawsuit. I did 15

ong>Caseong> 2:20-cv-06291-NGG-SJB ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 55 Filed 06/ong>21ong>/ong>21ong> 3136178, Page89 16 ong>ofong> ong>ofong> 18 119 PageID #: 4405 not believe that my request for removal was inappropriate simply because it would deprive plaintiffs ong>ofong> their chosen forum. Rather, I believed the cases deal with funds governed by ERISA and that, therefore, the doctrine ong>ofong> federal preemption merited federal court jurisdiction over these matters. 37. This ong>Courtong> stated (at p. 26) that: “The Healthcare Employers were original parties to all eighteen Removed Actions, and the Class Representatives knew or should have known the rules for service via e-filing on existing parties under New York law.” I respectfully submit that I believed in good faith that the Healthcare Employer defendants had not been served at the time I removed the actions. I understood that a named defendant in a lawsuit did not become a party (and would not be subject to e-service) until that defendant was served with process and/or appeared in the case. At the time I removed the eighteen Removed Actions, I believed in good faith that the Healthcare Employer defendants had not appeared in any ong>ofong> the eighteen cases and I believed that they had not been served with process, as explained above. 38. Although the Healthcare Employers appeared in the Nassau County case 609877/2019 by virtue ong>ofong> being the plaintiff, the Healthcare Employers did not file a Notice ong>ofong> Appearance in the other actions (and were not the plaintiffs in those other actions). And although the firm ong>ofong> Cullen Dykman announced that it was representing the Employer and Owner Defendants, I believed that this was different than entering a formal appearance on behalf ong>ofong> a party in a matter. 39. I did not intend to violate the rules governing removal and I believed at the time that I was acting ethically and properly. With the benefit ong>ofong> hindsight, I realize I had erred, and I ong>ofong>fer my apologies. I know that I should have more carefully analyzed the situation. I had never 16