Henry v. Gershan
- Vernon Broderick
- 1:20-cv-06133
- U.S. District Court · Southern District of New York
- 2
In Henry v. Gershan, Judge Broderick reiterated dismissal of the action after ruling a state-court summary-judgment motion was filed after removal.
The action involving Seana Henry, Steven Gershan, James Kim, and Dream NJ, Inc. remains dismissed; the state-court summary-judgment motion was not decided on its merits.
What happened
In Henry v. Gershan, the defendants James Kim and Dream NJ, Inc. removed the case from New York Supreme Court, Bronx County, to federal court on August 6, 2020. Plaintiff Seana Henry provided the state-court docket, while Defendant Steven Gershan did not provide the copy of his summary-judgment motion that the court had requested.
The docket showed that Gershan filed his summary-judgment motion in state court on September 23, 2020, after the case had been removed. The court explained that the state court could no longer act after removal, so it did not have authority over that motion. The federal court had already dismissed the action without prejudice on February 11, 2021.
Judge Vernon S. Broderick reiterated that the action was dismissed. The order did not decide the merits of Gershan’s summary-judgment motion or the underlying claims.
The detailed version
- Henry v. Gershan · No. 1:20-cv-06133
- Vernon Broderick
- Mar. 31, 2021
Background
The case was removed from New York Supreme Court, Bronx County, to the U.S. District Court for the Southern District of New York on August 6, 2020. On March 12, 2021, the court directed Steven Gershan to provide a stamped copy of his state-court summary-judgment motion. It also directed James Kim and Dream NJ, Inc. to provide a stamped copy of their notice of removal and directed the parties to provide the state-court docket.
Kim and Dream provided the notice of removal, which showed that it was filed in state court on August 6, 2020, the same day it was filed in federal court. Seana Henry provided the state-court docket. Gershan did not respond to the court’s request.
Court’s Analysis
The docket indicated that Gershan filed his summary-judgment motion on September 23, 2020, after the notice of removal had been filed. The court explained that, under 28 U.S.C. § 1446(d), a state court must stop proceeding after a case is removed unless the case is sent back. The court stated that the state court therefore did not have jurisdiction—the legal authority to act—over Gershan’s motion.
The court also stated that the federal court obtained jurisdiction when the notice of removal was filed in federal court on August 6, 2020. It noted that, on February 11, 2021, it had dismissed the action without prejudice.
Disposition
The court reiterated that the action was dismissed. The order did not decide whether Gershan was entitled to summary judgment and did not resolve the merits of the underlying claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.