Agapov v. UBIF Franchising Co.
- Philip Halpern
- 7:23-cv-02178
- U.S. District Court · Southern District of New York
- 2
In Agapov v. UBIF Franchising Co., Judge Halpern denied UBIF leave to rely on its state-court dismissal motion without prejudice to renewal in federal court.
Dominick Agapov and UBIF Franchising Co.; the order determines how UBIF must renew its motion to dismiss and extends UBIF’s response deadline.
What happened
Agapov v. UBIF Franchising Co. concerns UBIF Franchising Co.’s removal of the case to federal court after it had filed a motion to dismiss in state court. UBIF said the case became removable only after Dominick Agapov indicated in opposition to that motion that he intended to seek federal relief. The opinion identifies Agapov as representing himself.
After removal, UBIF filed a federal-court reply supporting the earlier state-court motion. The court said a new motion was necessary because Agapov needed an opportunity to respond in federal court, federal pleading rules and federal law applied, service of process was disputed, and the court’s practices allowed Agapov to seek permission to amend his complaint.
Judge Philip M. Halpern denied UBIF permission to rely on the state-court motion without prejudice to renewing it in federal court under the court’s procedures. He extended UBIF’s deadline to answer or otherwise respond to April 24, 2023, and directed the Clerk to terminate the motion pending at Doc. 9. The order did not decide the merits of the dismissal arguments.
The detailed version
- Agapov v. UBIF Franchising Co. · No. 7:23-cv-02178
- Philip Halpern
- Mar. 22, 2023
Background
UBIF Franchising Co. removed this case from Westchester County Supreme Court to the Southern District of New York on March 14, 2023. Before removal, UBIF had filed a motion to dismiss in state court. UBIF stated that the case did not become removable until Dominick Agapov indicated, in opposition to that motion, that he intended to assert federal claims for relief.
On March 21, 2023, UBIF filed a reply brief in federal court supporting the motion to dismiss that it had filed before removal. The opinion identifies Agapov as a self-represented plaintiff.
Court’s analysis
Federal Rule of Civil Procedure 81 provides that repleading after removal is unnecessary unless the court orders it. The court nevertheless identified several reasons why UBIF needed to file a substitute motion to dismiss rather than rely on its state-court motion:
- Agapov should have an opportunity to oppose the motion in federal court. - Different pleading standards and the application of federal law required a new motion. - UBIF had argued that service of process was not properly completed before removal, and federal law allows new process to be issued in removed cases. - UBIF needed to comply with the court’s Individual Practices, which allow a plaintiff to seek permission to amend a complaint in response to a pre-motion letter.
Ruling
Judge Philip M. Halpern denied UBIF leave to rely on the motion to dismiss filed before removal, without prejudice to renewal in federal court in accordance with the court’s Individual Practices. The court extended UBIF’s time to answer or otherwise respond to the complaint to April 24, 2023. The Clerk of Court was directed to terminate the motion pending at Doc. 9.
The order addressed the procedure for renewing the motion after removal. It did not rule on whether UBIF’s dismissal arguments were legally or factually valid.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.