throbber
FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
`FILED: NASSAU COUNTY CLERK 10m2017 01:07 PM
`NYSC 3F DOC. NO. 42
`NYSCEF DOC. NO. 42
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`IND
`EX NO.
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`INDEX NO. 601659/2016
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`Case 2:16-cv-03364-LDW-AKT Document 16 Filed 09/05/17 Page 1 of 14 PagelD #: 329
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`F l L E D
`IN CLERK'S OFFICE
`us. DISTRICT COURT E.D.N.Y.
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`*
`
`SEP 05 2017
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`*
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`LONG ISLAND OFFICE
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`W
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`16-CV-3364
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`(Wexler, J.)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`—_"-_------ u--------— _---.. .— ------¢M- -g-.-w.._----—-_-_*. X
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`YOSSEF KAHLON a/k/a Jossef Kahlon and
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`ATLAS SOLAR HOLDINGS LLC,
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`Plaintiffs,
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`-against-
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`ERICA T. YITZHAK, THE LAW OFFICES OF
`ERICA T. YITZHAK, and ERICA T. YITZHAK
`ESQ. P.C.,
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`Defendants.
`______________________________________________________________ X
`
`ERICA T. YITZHAK, THE LAW OFFICES OF
`ERICA T. YITZHAK, and ERICA T. YITZHAK
`ESQ. P.C.,
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`Third Party Plaintiffs,
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`-against-
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`TROY LAMBE and SUNRAY SOLAR INC.,
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`Third Party Defendants.
`..............................................................x
`APPEARANCES:
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`LAW OFFICE OF ELIAS C. SCHWARTZ, PLLC
`By: Jennifer J. Bock, Esq. and Keri Ann Joeckel, Esq.
`343 Great Neck Road
`
`Great Neck, New York 11021
`Attorneys for Plaintiffs
`
`VERNER SIMON
`
`By: Paul W. Verner, Esq.
`30 Wall Street, 8"1 Floor
`New York, New York 10005
`Attorney for Defendants/Third Party Plaintiffs & Third Party Defendants
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`WEXLER, District Judge:
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`

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`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
`FILED: NASSAU COUNTY CLERK 10m2017 01:07 PM
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`NYSCEF DOC. NO. 42
`NYSCEF DOC. NO. 42
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`INDEX NO. 601659/2016
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`Case 2:16-cv-03364—LDW-AKT Document 16 Filed 09/05/17 Page 2 of 14 PagelD #: 330
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`Plaintiffs Yossef Kahlon (“Kahlon”) and Atlas Solar Holdings LLC (“Atlas”)
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`(collectively “plaintiffs” or “Kahlon/Atlas”) commenced a legal malpractice action in New York
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`Supreme Court, Nassau County, against defendants Erika T. Yitzhak and her firms, the Law
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`Offices of Erica T. Yitzhak, and Erika T. Yitzhak, Esq., P.C. (collectively “Yitzhak”). Yitzhak
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`filed a third-party action against Troy Lambe and Sunray Solar Inc. (collectively, “third-party
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`defendants” or “Lambe/Sunray”). Defendants Yitzhak and/or third-party defendants
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`Lambe/Sunray (collectively, the “removing parties”) jointly removed the action to this Court.
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`Plaintiffs have moved to remand the matter to state court and for attomeys’ fees. Motion,
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`Docket Entry (“DE”) [12]. For the reasons set forth below, the motion is granted and the case
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`remanded.
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`I. BACKGROUND
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`A. General Litigation History
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`This case is one of several involving the same parties. Familiarity with the general
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`factual history is assumed and the background set forth here is limited matters pertaining to this
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`litigation. The cases arise from the collapse of a business relationship between plaintiffs
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`Kahlon/Atlas and third-party defendants Lambe/Sunray. As that relationship deteriorated,
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`plaintiffs retained Yitzhak to pursue claims against Lambe/Sunray. Plaintiffs and Yitzhak are all
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`residents of New York, while third-party defendants Lambe/Sunray are New Jersey residents.
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`Plaintiffs claim that Yitzhak took various actions “at their own behest” including filing
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`UCC liens against Lambe/Sunray, and writing potential investors in Lambe/Sunray to advise
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`them of the pending litigation. On or about October 22, 2012, Yitzhak filed and served a
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`summons with notice on behalf of Atlas against Lambe/Sunray in New York Supreme Court,
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`Nassau County. According to plaintiffs, Yitzhak made numerous errors in that litigation which
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`ultimately resulted in its dismissal for lack of personal jurisdiction.
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`On or about May 24, 2013, Lambe/Sunray filed an action in the Eastern District of New
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`York against Kahlon/Atlas and Yitzhak. See 13-cv-3126 (the “federal case”). During the trial,
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`Lambe/Sunray and Yitzhak agreed to a settlement pursuant to which Lambe/Sunray agreed to
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`release its claims against Yitzhak in exchange for the Yitzhak’s payment of the remaining policy
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`limits on her professional liability policy, up to $650,000. Furthermore, Yitzhak accepted a
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`“hold harmless” from Lambe/Sunray providing that, inter alia, in the event Yitzhak were to be
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`sued by her former client, Kahlon/Atlas, her defense would be assumed by Lambe/Sunray and
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`specifically by their counsel, Paul Verner. At the parties’ request, the settlement was placed on
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`the record. See Trial Transcript of 1/29/ 16 (“TL”), 13-cv-3126, DE [155-5]. At Mr. Verner’s
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`request, the Court asked the parties if they agreed with their attorneys’ representations about the
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`settlement terms, which they did. Tr. 908-09. The parties did not ask the Court to retain
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`jurisdiction over the settlement agreement.
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`On February 1, 2016, the jury rendered a verdict in favor of Lambe/Sunray on several
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`causes of action including, inter alia, claims for tortious interference with contract and with
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`prospective economic relations, abuse of process, and wrongful filing of a UCC-l Statement, and
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`awarded $750,000 in compensatory damages and $250,000 in punitive damages against
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`Kahlon/Atlas. See 13-cv-3126, DE [133]; Compl. 1173.’
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`B. The Current Case
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`On or about March 9, 2016, Kahlon/Atlas commenced an action against Yitzhak in New
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`York Supreme Court, Nassau County, alleging causes of action for legal malpractice, breach of
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`' Kahlon/Atlas subsequently sued Yitzhak’s insurance carrier for indemnification and defense costs. See
`l6-cv-2239 Kahlon v. CNA Fin. Corp. That case was removed by defendant to this Court and was
`dismissed. See 2017 WL 26335 I 7.
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`

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`contract, breach of fiduciary duty, breach of quasi-contract, and unjust enrichment. According to
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`the affidavits, service on Yitzhak was effected March 28, 2016. Yitzhak’s answer was filed on
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`May 3, 2016.
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`On April 28, 2016, Yitzhak issued a Third Party Summons and Complaint against
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`Lambe/Sunray. There is no indication as to when, if ever, the third-party complaint was served.
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`It contains a single cause of action seeking an order that Yitzhak should be indemnified and
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`defended under the terms of the settlement agreement in the federal case, and that third-party
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`defendants should be compelled to “specifically perform” the settlement agreement.
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`A notice of removal was filed “jointly” by Yitzhak and Lambe/Sunray on June 22, 2016.
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`Notice of Removal (“Notice”), DB [1]. In the Notice, they state that there is “complete diversity
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`of citizenship between the third party plaintiff and the third party defendants” and represent that
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`it is filed within thirty days of the receipt of the third-party complaint by Lambe/Sunray. The
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`Notice characterizes the third party action as “seeking damages and Specific performance of an
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`indemnification in a settlement agreement” made before this Comt. Notice, 113.
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`Yitzhak’s answer, and the third-party summons and complaint were all filed in New York
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`Supreme Court by Mr. Verner as attorney for the Yitzhak entities as defendants/third-party
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`plaintiffs. All filings in this Court on behalf of both Yitzhak and Lambe/Sunray have been made
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`by Mr. Verner.
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`II. MOTION TO REMAND
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`Removability of civil actions brought in state courts is governed by 28 U.S.C. §1441,
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`“which permits a case to be removed to federal court only if it ‘originally could have been filed
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`in federal court!” Weinrauch v. N.Y. Life Ins. Co., No. 12 Civ. 5010, 2013 WL 165018, at * 3
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`(S.D.N.Y. Jan. 15, 2013) (quoting Vera v. Saks Co., 335 F.3d 109, 113 (2d Cir. 2003)). In
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`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
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`considering a motion to remand, the removal statutes are strictly construed and any doubts are
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`resolved in favor of remand. See. e.g., Lupo v. Human Aflairs Int '1, Inc, 28 F.3d 269, 274 (2d
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`Cir. 1994); Atanasio v. O'Neill, 235 F. Supp. 3d 422, 424 (E.D.N.Y. 2017). Moreover, the
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`“party seeking removal bears the burden of showing that federal jurisdiction is proper.”
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`Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011).
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`The removal statute is subject to procedural requirements. Under the statute, the notice
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`of removal “shall be filed within 30 days afier the receipt by the defendant, through service or
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`otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such
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`action or proceeding is based, or within 30 days after the service of summons upon the defendant
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`if such initial pleading has then been filed in court and is not required to be served on the
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`defendant, whichever period is shorter.” 28 U.S.C. §1446(b)(1).
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`The Notice purports to be filed “jointly” by Yitzhak and Lambe/Sunray. It is clear,
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`however, that there is no basis for removal of the primary action between Kahlon/Atlas and
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`Yitzhak. That complaint alleges only state law causes of action, and as all parties are New York
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`residents, there is no diversity of citizenship. Thus, the only arguable basis for removal is the
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`third-party action between Yitzhak and Lambe/Sunray.
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`A. Timeliness
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`Plaintiffs argue that any notice of removal was untimely.2 The third-party summons and
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`complaint are dated April 28, 2016, and according to plaintiffs, the complaint was filed on May
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`4, 2016. See Mem. of Law in Support at 7, DE [13]. The Notice states that the removal was
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`filed within 30 days “after receipt by petitioners [Lambe/Sunray] of the summons and complaint
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`2 Nothwithstanding the lack of subject matterjurisdiction over the primary action between Kahlon/Atlas
`and Yitzak, any attempt at removal by Yitzhak is clearly time-barred. The Yitzhak defendants were
`served on March 28, 2016, and the notice of removal was not filed until June 22, 2016, well past the 30-
`day limit.
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`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
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`commanding them to appear and file a written answer to the [Yitzhak] complaint.” Notice, 1l8.
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`There is no indication on the record as to when Lambe/Sunray were served with, or received, the
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`third-party complaint. In addition, despite having the burden of persuasion, Yitzhak and
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`Lambe/Sunray do not address the timing of the removal beyond a heading in their brief that
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`begins “The Removal Was Timely.” No further argument or proof is provided to support the
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`heading language. Significantly, Yitzhak has neither filed below nor otherwise provided
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`affidavits of service regarding when the third-party complaint was served.
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`Under the unique circumstances of this case, however, knowledge of the actual date of
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`service is not essential to a finding of untimeliness. Section 1446 provides that the thirty day
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`period for removal begins to run upon receipt of the initial pleading, “through service or
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`otherwise.” 28 U.S.C. §1446(b) (emphasis added). In this case, both sides of the third-party
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`action are represented by the same counsel, Mr. Vemer. Thus, when Mr. Vemer served the
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`notice of third-party summons and complaint on plaintiffs on April 28, 2016, he clearly had
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`notice and possession of the initial pleading on behalf of his third-party defendant clients that
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`same date. Even giving the removing parties the benefit of the doubt and using the later filing
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`date of May 4, 2016 as a starting point, removal was untimely as the Notice was not filed until
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`June 22, 2016, forty-nine days later.
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`B. Who May Remove
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`Even if removal were timely, it is still improper. As mentioned above, Kahlon/Atlas’s
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`complaint against Yitzhak contains only state law causes of action and cannot alone be the basis
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`for federal jurisdiction. Thus the question is whether a third-party defendant may, under Section
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`1441, properly remove the case despite the plain language permitting removal only “by the
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`defendant or the defendants.” 28 U.S.C. §1441(a). Although this question has not been
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`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
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`answered directly by the Second Circuit, “courts in the Southern and Eastern Districts of New
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`York ‘consistently adhere to the majority position that third-party defendants have no right to
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`remove claims...'” Certain Underwriters at Lloyd 's London v. Art Crating, Inc., No. 12-CV—
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`5078, 2014 WL 123488, at * 16 (E.D.N.Y.
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`Jan. 10, 2.013). In addition, the “clear majority of
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`federal courts has held that third-party defendants are not ‘defendants' within the meaning of 28
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`U.S.C. § 1441(a) and therefore may not remove an action to federal court.” Id. (citing cases).
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`The removing parties concede that the majority of cases in this District have found that
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`third-party defendants are not ‘defendants’ within the meaning of the removal statute and thus
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`cannot remove a case to federal court. Mem. In Opp. at 9, DE [14]. Instead, they ask this Court
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`to adopt the so-called “minority view” that a third-party defendant be permitted to remove a case
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`where the third-party claims have subject matter jurisdiction that is “‘separate and independent'
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`from the primary action, a statutory reference ‘not to the variety of legal theories advanced but to
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`the underlying occurrence or occurrences giving rise to the litigation)” St. John ’s Univ. v.
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`Certain Underwriters at Lloyd ’5, 760 F. Supp. 2d 381, 383 (S.D.N.Y. 2011) (quoting Gardner &
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`Florence Call Cowles Found. v. Empire Inc., 754 F.2d 478, 481 (2d Cir. 2011)).
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`The ‘minority view’ was premised upon specific language contained in a prior version of
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`§144l (c) that allowed for removal of “a separate and independent claim or cause of action"
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`joined with non-removable claims. That section was amended in 2011 to remove this language,
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`thus eliminating the legal underpinnings of the minority view.
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`In addition, that amendment did
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`not add any reference to third-party defendants, and “[a]s several courts have noted, had
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`Congress intended to permit removal by third—party defendant, it could have amended §1441(a)
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`to clarify the definition of ‘the defendant or the defendants,’ or added additional language to
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`§1441(c) specifying that removal under that subsection is available to parties other than original
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`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
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`defendants. It did not.” Art Crating, 2014 WL 123488, at *17 (internal quotation and citations
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`omitted). None of the cases cited by the removing parties were decided subsequent to this
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`change in the statute. The Court concludes that the arguments and facts presented provide no
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`reason to depart from the majority view and a plain reading of Section 1441 that only a
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`defendant or defendants may remove.
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`III. MOTION FOR ATTORNEYS’ FEES
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`A. Objective Reasonableness of Removal
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`Having determined that remand is appropriate, the Court considers whether the remand
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`order should “require payment ofjust costs and any actual expenses, including attorney fees,
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`incurred as a result of the removal.” 28 U.S.C. §1447(c). Fees may be awarded “only where the
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`removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin
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`Capital Corp., 546 US. 132, 141, 126 S. Ct. 704 (2002). “Objective reasonableness is
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`evaluated based on the circumstances as of the time that the case was removed.” Williams v.
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`Int'l Gun-A-Rama, 416 F. App’x 97, 99 (2d Cir. 2011). An award of fees under §1447 does not
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`require a finding of bad faith on the part of the removing party. See Morgan Guar. Trust Co. v.
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`Republic ofPalau, 971 F.2d 917, 923-24 (2d Cir. 1992) (noting that the statute “makes no
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`reference at all to the state of mind or intent of the party removing the action, instead focusing
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`strictly on the mere absence of subject matter jurisdiction”).
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`The Court’s basis for granting remand is in part procedural. “The question of whether the
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`removing defendants were objectively reasonable to remove is an independent question from
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`whether the removal itself was procedurally proper.” Williams, 416 F. App’x at 101 n.3. Thus
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`the Court looks to whether the removing parties had an objectively reasonable basis to believe
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`that this Court had jurisdiction over the subject matter of the case.
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`Plaintiffs’ complaint is based solely on state law and cannot form the basis for removal.
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`The removing parties do not suggest otherwise; instead, they argue that the claims in the third-
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`party complaint allows removal. Standing alone, the third-party complaint asserts a diversity
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`claim for breach of contract.3 The issue, however, is whether the existence of this claim
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`provided the removing parties with an objectively reasonable basis to believe that removal of the
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`entire action was appropriate. The removing parties argue that application of the “collision of
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`interests” doctrine requires that they be deemed a single party for purposes of diversity
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`jurisdiction.
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`Diversity jurisdiction is not determined by the parties’ determination of who are plaintiffs
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`or defendants, but rather only exists where there is an “actual, substantial controversy between
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`citizens of different states.” City ofIndianapolis v. Chase Nat '1 Bank ofN. Y., 314 US. 63, 69,
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`62 S. Ct. 15 (1941) (internal citations omitted). The court may re-align parties to reflect the
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`actual interests of the parties, and the Second Circuit has adopted a collision of interests test to
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`consider “the multiple interests and issues involved in the litigation” and determine whether re-
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`alignment is necessary. Maryland Cas. Co. v. W.R. Grace & C0,, 23 F.3d 617, 622 (2d Cir.
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`1993).
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`The removing parties argue that application of the collision of interests leads to the
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`conclusion that Yitzhak and Lambe/Sunray “should be treated as one diverse litigant with the
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`3 The Court rejects the removing defendants’ argument that federal questionjurisdiction to enforce the
`settlement agreement between Yitzhak and Lambe/Sunray also exists. Such a proceeding “is more than
`just a continuation or renewal of the dismissed suit, and hence requires its own basis forjurisdiction.”
`Kokkonen v. Guardian Life Ins. Co., 51 1 US. 375, 378, 114 S. Ct. 1673 (1994). It is' clearly established
`that a court may only exercise ancillaryjurisdiction to enforce a settlement agreement if it “manifested an
`intent to retain jurisdiction or made the agreement part of its order of dismissal.” Scelsa v. City Univ. of
`MK, 76 F.3d 37, 41 (2d Cir. 1996). Here, the Court did neither. Although the Court permitted the
`parties, at their request, to put the settlement on the record, it made no statement regarding the retention of
`jurisdiction. The stipulation of discontinuance So Ordered by this Court is also silent on this point. See
`l3-cv—3126, DE [136].
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`. Case 2:16-Cv-03364-LDW-AKT Document 16 Filed 09/05/17 Page 10 of 14 PageID #: 338
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`Lambe Parties‘ undisputed New Jersey domicile.” Mem. of Law in Opp. at 12. Implicit in this
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`argument is the idea that upon re-alignment, a court may completely disregard a party’s
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`domicile. They have provided no case law to support such a proposition. Assuming arguendo
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`that the collision of interests doctrine were applicable to the current case, the result would be that
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`the New York-based Yitzhak defendants would be united in interest with Lambe/Sunray,
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`residents of New Jersey, against Kahlon/Atlas, residents ofNew York. The result is a lack of
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`complete diversity among the parties such that this Court lacks subject matter jurisdiction.
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`Upon consideration of the circumstances and the legal arguments presented, the Court
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`finds that there was no objectively reasonable basis for removal of this case. Accordingly, an
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`award of attorneys’ fees under 28 U.S.C. §l447(c) is warranted.
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`B. Calculation of a Reasonable Attorneys’ Fee Award
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`Plaintiffs may recover fees for a reasonable number of hours expended in making the
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`motion to remand. See Naxos Art, Inc. v. Zoullas, No. 16 Civ. 7269, 2017 WL 2894142, at *2
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`(S.D.N.Y. July 7, 2017).
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`In the Second Circuit, “the lodestar—the product of a reasonable hourly
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`rate and the reasonable number of hours required by the case—creates a ‘presumptively
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`reasonable fee."’ Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting
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`Arbor Hill Concerned Citizens v. County ofAlbany, 522 F.3d 182, 183 (2d Cir. 2008)). “While a
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`court may, in exceptional circumstances, adjust the lodestar, it may not disregard it entirely.”
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`Millea, 658 F.3d at 169 .
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`In addition, this Circuit adheres to the “forum rule,” generally
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`requiring the “use of ‘the hourly rates employed in the district in which the reviewing court sits
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`in calculating the presumptively reasonable fee.'” Bergerson v. N. 1’. State Oflice ofMental
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`Health, Cent. N. Y. Psychiatric Ctr., 652 F.3d 277, 290 (2d Cir. 2011) (quoting Simmons v. N. Y.
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`City Transit Auth, 575 F.3d 170, 174 (2d Cir. 2009) (internal quotations omitted».
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`10
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`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
`FILED: NASSAU COUNTY CLERK 101-32017 01:07 PM
`NYSCI
`3F DOC. NO. 42
`NYSCEF DOC. NO. 42
`
`INDEX NO. 601659/2016
`INDEX NO- 601659/2016
`
`
`
`
`
`R*.C*.IV*.D \iYSCEF:
`10/12/2017
`RECEIVED NYSCEF: 10/12/2017
`
`. Case 2:16-cv-03364-LDW-AKT Document 16 Filed 09/05/17 Page 11 of 14 PageID #: 339
`
`The party seeking reimbursement of attomey’s fees bears the burden of proving the
`
`reasonableness and the necessity of the hours spent and rates charged. See N. 1". State Ass 'nfor
`
`Retarded Children, Inc. v. Carey, 71] F.2d 1136 (2d Cir. 1983). A fee application must be
`
`supported by contemporaneous time records that describe with specificity, by attorney, the nature
`
`of the work done, the hours expended, and the dates on which the work was performed. Cruz v.
`
`Local Union No. 3 ofthe IBEW, 34 F.3d 1148, 1160-1161 (2d Cir. 1994).
`
`In determining
`
`whether a reasonable number of attorney hours were expended, the court should “examine the
`
`hours expended by counsel and the value of the work product of the particular expenditures to
`
`the client's case” and “[i]f the court determines that certain claimed hours are excessive,
`
`redundant, or otherwise unnecessary, the court should exclude those hours in its calculation of
`
`the lodestar.” Gierlz’nger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998) (internal quotations and
`
`citations omitted).
`
`Plaintiffs seek fees in the total amount of $1 8,465.00 and have submitted time records
`
`supporting that request. Yitzhak and Lambe/Sunray dispute the amount sought as unreasonable
`
`and request a hearing. As the parties have provided the necessary materials and arguments, a
`
`hearing is unnecessary.
`
`_1_. Hourly Rate
`
`A reasonable hourly rate must be considered within the context of the relevant legal
`
`“community;” Specifically, “the district where the district court sits.” Arbor Hill, 522 F.3d at
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`190; see also Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541 (1984) (rates should be
`
`“in line with those prevailing in the community for similar services by lawyers of reasonably
`
`comparable skill, experience and reputation”).
`
`In this district, courts have found reasonable
`
`hourly rates to be approximately $300-$450 for partners, $200-$325 for senior associates, and
`
`11
`
`

`

`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
`FILED: NASSAU COUNTY CLERK 10m2017 01:07 PM
`
`NYSCEF DOC. NO. 42
`NYSCEF DOC. NO. 42
`
`601659/2016
`INDEX NO. 601659/2016
`
`INDEX NO-
`
`
`
`
`RfiCfiIVfiD VYSCEF:
`10/12/2017
`RECEIVED NYSCEF: 10/12/2017
`
`- Case 2:16-cv-03364-LDW-AKT Document 16 Filed 09/05/17 Page 12 of 14 PagelD #: 340
`
`$100-$200 for junior associates. See, e.g., Friedman v. SelfHelfCmty. Servs., Inc, No. ll-CV-
`
`3210, 2017 WL 663539, at *2 (E.D.N.Y. Feb. 17, 2017) (internal quotation and citation omitted).
`
`Plaintiffs seek to recover attorneys’ fees for two professionals—attorneys Jennifer J.
`
`Bock and Keri A. Joeckel. Ms. Bock avers that she is a senior associate admitted in 1999, but
`
`provides no further information regarding her credentials or experience. Affidavit of Jennifer J.
`
`Bock (“Bock Aff.”), 1H, DE [12-11]. Ms. Joeckel states that she is an associate admitted to
`
`practice law since 2012, but also fails to provide any details on her qualifications. Affidavit of
`
`Keri A. Joeckel (“Joeckel Aff”), 1|l, DE [12-10]. Both attomeys state the firm charged an
`
`“agreed upon rate” of $300 per hour for their time. Bock Aff, 1|6; Joeckel Aff. 1|7. The Court
`
`finds that the $300 hourly rate sought by Book, which falls well within the range for senior
`
`associates, is reasonable given her advanced level of experience. Ms. Joeckel’s statements,
`
`however, are insufficient to support an award at the requested rate. See, e.g., Fuchs v. Tara Gen.
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`Contracting, Inc, No. O6-CV-1282, 2009 WL 3756655, at * 2 (E.D.N.Y. Nov. 3, 2009) (“The
`
`determination of what constitutes a reasonable hourly rate also requires the submission of
`
`information concerning the credentials or experience of counsel applying for fees. Where such
`
`information is lacking, the court may reduce the award of attorney's fees accordingly” (internal
`
`quotation and citations omitted)). Based on Ms. Joeckel’s experience and the work performed,
`
`the Court finds an hourly rate of $200 to be reasonable.
`
`Mgr}: Perfomted
`
`Plaintiffs have provided contemporaneous time records showing the work performed and
`
`time spent by each attorney. They seek reimbursement for 14.60 hours expended by Ms. Bock,
`
`and 46.95 hours spent by Ms. Joeckel. The removing parties have raised several issues with
`
`12
`
`

`

`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
`FILED: NASSAU COUNTY CLERK 10m2017 01:07 PM
`
`NYSCEF DOC. NO. 42
`NYSCEF DOC. NO. 42
`
`601659/2016
`INDEX NO. 601659/2016
`
`INDEX NO-
`
`
`
`
`RnCfiIVnD VYSCEF:
`10/12/2017
`RECEIVED NYSCEF: 10/12/2017
`
`. Case 2:16-cv-03364-LDW-AKT Document 16 Filed 09/05/17 Page 13 of 14 PageID #: 341
`
`amounts billed. The Court has thoroughly reviewed the time records and has considered the
`
`parties’ concerns in making the following determinations.
`
`The attorneys spent 49.40 total hours researching, writing, and editing the motion for
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`remand— 5.75 hours for Ms. Bock and 43.65 hours for Ms. Joeckel. The Court finds this
`
`amount of time to be unnecessarily high and, in its discretion, reduces these amounts by one-
`
`third. Both attorneys billed 2.5 hours for an appearance before the undersigned on July 1, 2016.
`
`That conference, which lasted approximately 20 minutes, also addressed a second case.
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`Acknowledging that there were likely other activities undertaken by counsel that did not involve
`
`the Court, each attorney may bill 40 minutes for the appearance. As plaintiffs have not indicated
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`what portion of the entry represented travel time, no additional award for that time entry will be
`
`made. Both attorneys bill minor amounts of time for other tasks which the Court awards in full.
`
`The following chart summarizes the ruling of the Court:
`
`
`
`Time Sou ht
`
`Time Awarded IHourly Rate Exward
`I
`
`
`$1,053.00
`l
`MGR...—
`
`
`
`
`Ct a
`earange
`
`_$ 193.00
`
`
`Other char es
`
`
`
`
`Ms. Joeckel
`
`$5,820.00
`
`
`Motion prep_
`
`
`Ms. Joeckel
`Ct at
`earance
`$
`132.00
`
`
`
`
`$
`160.00
`Other charges
`
`
`
`
`
`As Yitzhak and Lambe/Sunray purported to file the Notice of Removal jointly, the attorneys’ fee
`
`award is imposed jointly and severally against these parties.
`
`IV. CONCLUSION
`
`Plaintiffs’ motion to remand is granted, and the Clerk of the Court is directed to remand
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`this case to the New York Supreme Court, Nassau County. The Court retains jurisdiction over
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`plaintiffs’ request for attomeys’ fees and grants that motion. The Clerk of the Court is directed
`
`13
`
`

`

`FILED: NASSAU COUNTY CLERK 10/12/2017 01:07 PM
`FILED: NASSAU COUNTY CLERK 10m2017 01:07 PM
`
`NYSCEF DOC. NO. 42
`NYSCEF DOC. NO. 42
`
`INDEX NO. 601659/2016
`INDEX NO~ 601659/2016
`
`
`
`
`
`
`RnCnIVnD VYSCEF: 10/12/2017
`RECEIVED NYSCEF: 10/12/2017
`
`Case 2:16-cv-03364-LDW-AKT Document 16 Filed 09/05/17 Page 14 of 14 PagelD #: 342
`
`to enter judgment for plaintiffs and against defendants/third-party plaintiffs and third-party
`
`defendants, jointly and severally, in the amount of $9,268.00.
`
`SO ORDERED.
`
`0 _ {EL—
`LEONARD D. WEXLER
`UNITED STATES DISTRICT JUDGE
`
`Dated: Central Islip, New York
`September 5, 2017
`
`14
`
`

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