Manus v. Pincione

Background

This action was removed from the Supreme Court of the State of New York, New York County, on July 17, 2023. Defendant Max Pincione asserted that federal jurisdiction existed based on diversity of citizenship under 28 U.S.C. § 1332(a). The opinion states that Plaintiff Ninotchka Manus is a citizen of Florida and that Pincione is a citizen and resident of New York State.

Removal issue

Under 28 U.S.C. § 1441(a), a defendant may remove a state-court action when the federal district court has original jurisdiction. But the diversity-removal statute contains a forum-defendant rule: a case generally may not be removed when a properly joined and served defendant is a citizen of the state where the action was filed. The court stated that the rule applied here because Pincione is a New York citizen and appears to have been served in June 2023, before removal.

The court also explained that Second Circuit precedent treats the forum-defendant rule as procedural, meaning a party may waive it. The opinion noted contrary authority from the Eighth Circuit, which treats the rule as jurisdictional and not waivable.

Order

Judge Jessica G. L. Clarke ordered that, if Manus wished to invoke § 1441(b)(2), she must file a motion by August 16, 2023. Pincione’s opposition was due August 30, 2023, and Manus’s reply was due September 6, 2023. The court further ordered Pincione’s counsel to promptly provide Plaintiff’s counsel with a copy of the order by email, fax, or hand delivery.

The opinion did not itself grant or deny a motion, decide whether the forum-defendant rule was waived, or determine whether the case would remain in federal court.