Abeles v. Wolk, No. 1:2022cv01244 - Document 20 (S.D.N.Y. 2022)

Court Description: MEMORANDUM OPINION AND ORDER re: 19 LETTER MOTION to Stay re: 15 Memorandum & Opinion,, 18 Notice of Appeal, 17 Memorandum & Opinion,, Letter-Motion for Stay Pending Appeal under FRCP 62 addressed to Judge John G. Koeltl from Michael B. Wolk, Esq. dated May 19, 20 filed by Michael Wolk. The motion for a stay is denied. The Clerk is directed to close Docket No. 19. SO ORDERED. (Signed by Judge John G. Koeltl on 5/20/2022) (kv)

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Abeles v. Wolk Doc. 20 Case 1:22-cv-01244-JGK Document 20 Filed 05/20/22 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ALEJANDRO ABELES, 22-cv-1244 (JGK) Plaintiff/ Counterclaim Defendant, MEMORANDUM OPINION AND ORDER - against MICHAEL WOLK, Defendant/ Counterclaim Plaintiff. JOHN G. KOELTL, District Judge: The motion for a stay of the Remand Order in this case is denied. Any appeal of the Remand Order would not be taken in good faith. The Court plainly stated, twice, that the Court lacks subject matter jurisdiction over this action. See ECF No. 15, at 4; ECF No. 17, at 1-2. 28 U.S.C. § 1441(a) provides: "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." The only basis for subject matter jurisdiction invoked by Wolk is diversity of citizenship jurisdiction, 28 U.S.C. § 1332. Section 1332(a) provides, in turn, "The district courts shall have original jurisdiction of all civil actions where the matter in Dockets.Justia.com Case 1:22-cv-01244-JGK Document 20 Filed 05/20/22 Page 2 of 2 controversy exceeds the sum or value of $75,000, exclusive of interest and [there is complete diversity of citizenship between the parties]." The Court held that the non-party contempt motion that Wolk removed is not a civil action. See ECF No. 15, at 4; ECF No. 17, at 1. Because the Court's Remand Order was based on 28 U.S.C. § 1447(c) - the Court's lack of subject matter jurisdiction - the Remand Order "is not reviewable on appeal or otherwise." Id. § 1447(d); see In re WTC Disaster Site, 414 F.3d 352, 364 (2d Cir. 2005) ("It remains well established that if the remand was premised on a flaw encompassed by§ 1447(c)i.e., a defect in the removal procedure or the absence of subject matter jurisdiction-§ 1447(d) makes the remand unreviewable[.J"). The motion for a stay is denied. The Clerk is directed to close Docket No. 19. SO ORDERED. Dated: New York, New York May 20, 2022 , J 'ted 2 G. Koeltl States District Judge

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