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Mungin V City Of New York Dsshradhs

UNITED STATES DISTRICT COURT                                              
SOUTHERN DISTRICT OF NEW YORK                                             
CHRISTOPHER MUNGIN,                                                       
                   Plaintiff,                                            
                                         25-CV-5438 (LTS)                
            -against-                                                    
                                             ORDER                       
CITY OF NEW YORK DSS/HRA/DHS, et al.,                                     
                   Defendants.                                           
LAURA TAYLOR SWAIN, Chief United States District Judge:                   
    Plaintiff, who is appearing pro se, initiated this action on June 30, 2025, by filing a 
complaint against Defendants “City of New York DSS/HRA/DHS,” Office of the Comptroller, 
Home Life Services Inc., and Queens Family Residence LLC. The complaint refers to an 
ongoing case that he filed in New York State Supreme Court, New York County, against the same 
defendants, see Mungin v. City of New York DSS/HRA/DHS, Ind. No. 10040/25 (N.Y. Cnty. Sup. 
Ct.), and indicates that he intends to file a notice of removal of the state court case.  
    On July 14, 2025, Plaintiff filed the notice of removal. Both the complaint and notice of 
removal include pleadings from the state court matter, specifically, Plaintiff’s “opposition” to the 
affirmative defenses raised in Defendants’ answer. The Court treats this superseding application 
(ECF 6) as the operative pleading.                                        
    By order dated July 21, 2025, the Court granted Plaintiff’s request to proceed in forma 
pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the action 
is remanded to the New York State Supreme Court, New York County.         
                      STANDARD OF REVIEW                                 
    A defendant in a state-court action may remove a matter to federal district court if the 
district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). To remove a state-
court action to a federal district court:                                 
    [a] defendant . . . shall file in the district court of the United States for the district 
    and division within which such action is pending a notice of removal signed 
    pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short 
    and plain statement of the grounds for removal, together with a copy of all 
    process, pleadings, and orders served upon such defendant or defendants in such 
    action.                                                              
28 U.S.C. § 1446(a). The right of removal is “entirely a creature of statute,” and the “statutory 
procedures for removal are to be strictly construed.” Syngenta Crop Protection, Inc. v. Henson, 
537 U.S. 28, 32 (2002). A federal district court may sua sponte remand an action within 30 days 
of the filing of the notice of removal for a procedural defect, or at any time for a lack of subject 
matter jurisdiction. See 28 U.S.C. § 1447(c); Mitskovski v. Buffalo & Fort Erie Pub. Bridge 
Auth., 435 F.3d 127, 131-33 (2d Cir. 2006); Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643-
44 (2d Cir. 1993).                                                        
                          DISCUSSION                                     
    Removal of this case is improper because only the defendant in a state court action can 
file a notice of removal. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 863 (2d Cir. 
1988) (“Quite simply, a party who is in the position of a plaintiff cannot remove.”); Gehm v. New 
York Life Ins. Co., 992 F. Supp. 209, 210 (E.D.N.Y. 1998) (noting that “ [e]very case to consider 
the question has held that defendants, and only defendants, may remove”) (citation omitted). 
    Moreover, “Section 1441(a) . . . does not permit removal based on counterclaims at all, as 
a counterclaim is irrelevant to whether the district court had “original jurisdiction” over the civil 
action.” Home Depot U. S. A., Inc. v. Jackson, 587 U.S. 435, 442 (2019). To the extent Plaintiff 
seeks to remove this state-court action because he answered defendants’ affirmative defenses, the 
removal statute does not allow for removal in this circumstance. Removal must be initiated by a 
state-court defendant.                                                    
    For this reason, the Court concludes that removal is improper. Thus, the action is 

remanded to the New York State Supreme Court, New York County. See Mitskovski v. Buffalo & 
Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006) (noting that the Circuit has 
“interpreted section 1447(c) to authorize a remand for either a procedural defect asserted within 
30 days of the filing of notice of removal or a lack of subject matter jurisdiction”). 
                          CONCLUSION                                     
    The Court treats Plaintiff’s notice of removal (ECF 6), filed on July 14, 2025, as the 
operative pleading.                                                       
    Because removal of this action is improper, it is remanded under 28 U.S.C. § 1447(c) to 
the New York State Supreme Court, New York County. The Clerk of Court is directed to send a 
copy of this order to that court and to close this action. All pending matters are terminated. 
SO ORDERED.                                                               

Dated:  July 21, 2025                                                    
      New York, New York                                                 

                                   /s/ Laura Taylor Swain                
                                      LAURA TAYLOR SWAIN                 
                                    Chief United States District Judge