Rosenberg v. Shemiran Co. LLC

Background

Rudy Rosenberg, appearing without a lawyer, filed what he called a notice of removal seeking to transfer a residential eviction proceeding from the Civil Court of the City of New York, New York County, Housing Part, to federal court. Shemiran Co. LLC had brought that proceeding against Rosenberg, Eltha Jordan, John Doe, and Jane Doe. Shemiran alleged that Rosenberg and Jordan had not paid monthly rent of $2,050 since December 2018 and sought possession of the apartment and related fees and expenses.

Rosenberg had previously tried to remove the same eviction proceeding. In that prior related proceeding, the court ruled that his removal was filed more than 30 days after service of the state-court case, that he had not established the required citizenship differences or the $75,000 amount required for diversity jurisdiction, and that his proposed claims under the Americans with Disabilities Act and Fair Housing Act could not create federal jurisdiction because they did not appear in the state-court petition. The court remanded the proceeding to Housing Court.

Rosenberg filed a second notice of removal, arguing that the earlier remand was wrong. He repeated his diversity and federal-question arguments and also invoked 28 U.S.C. § 1443, asserting that the state court had engaged in racial discrimination. He requested a temporary restraining order. He also listed several Housing Court officials as defendants even though they were not parties to the eviction proceeding.

Analysis

The court applied issue preclusion, a rule that prevents a party from relitigating a specific issue that was already decided after a fair opportunity to present it. The court held that the prior ruling that Rosenberg’s removal was untimely barred him from challenging that issue again. The court also held that the prior determinations concerning federal jurisdiction barred Rosenberg from presenting the same jurisdictional arguments based on the same facts, because he alleged no new facts curing the earlier problems.

The court separately considered removal under 28 U.S.C. § 1443 because the prior related proceeding had not addressed that provision. Removal under that section requires, among other things, a showing that the person seeking removal cannot enforce a federally protected right concerning racial equality in the state courts. The court concluded that Rosenberg had not shown that New York courts could not protect his federal rights. It therefore found removal under § 1443 improper.

Disposition

Judge Louis L. Stanton remanded the action under 28 U.S.C. § 1447(c) to the Civil Court of the City of New York, New York County, Housing Part. The court denied Rosenberg’s request for a temporary restraining order as moot. It terminated all other pending matters, directed that the order be sent to the Housing Court, and closed the federal case.