The opinion
UNITED STATES DISTRICT COURT For Online Publication Only
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X MEMORANDUM AND ORDER
DUSTIN HICE, 19-CV-04666-JMA-GRB
Plaintiff,
-against- FILED
CLERK
DON LEMON, 11/26/2019 9 :01 am
U.S. DISTRICT COURT
Defendant.
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
LONG ISLAND OFFICE
AZRACK, United States District Judge:
On August 11, 2019, plaintiff Dustin Hice (“Plaintiff”) filed a complaint in New York State
Supreme Court, Suffolk County, alleging that defendant Don Lemon (“Defendant”) committed
assault and battery, intentional infliction of emotional distress, and negligent infliction of
emotional distress. (ECF No. 1-2.) Two days later, Defendant filed a notice of removal in this
Court pursuant to 28 U.S.C. § 1441, in which he asserted subject matter jurisdiction pursuant to
28 U.S.C. § 1332(a). (ECF No. 1.)
Plaintiff subsequently requested a pre-motion conference to seek leave to move to remand
the matter to state court. (ECF No. 7.) In response, Defendant filed a letter in which he argued
that removal had been proper. (ECF No. 9.) On October 10, 2019, the Court heard argument
regarding the pre-motion letters and reserved judgment. (ECF No. 11.) The Court indicated that
the parties’ pre-motion conference letters would be treated as motions and permitted the parties to
supplement their submissions. (Id.) To date, Plaintiff has submitted two supplemental letters.
(ECF Nos. 12, 13.)
Plaintiff argues that Defendant’s notice of removal was untimely because Plaintiff had not
yet effectuated service of the state complaint when Defendant filed the notice of removal. (ECF
No. 7 at 2.) Further, Plaintiff claims that as a resident defendant, Defendant is barred from removal
by the forum defendant rule, 28 U.S.C. § 1441(b)(2). (Id. at 3.) Therefore, according to Plaintiff,
the case should be remanded to state court. (Id.)
In response, Defendant contends that this Court must deny Plaintiff’s motion to remand
pursuant to Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019). In Gibbons, the
Second Circuit resolved a split among the district courts in this circuit as to whether the forum
defendant rule precludes removal when a defendant removes an action filed in state court before
the defendant has been served in the state court action. The Court held that based on the relevant
statutory text, 28 U.S.C. § 1441(b)(2), the forum defendant rule “is inapplicable until a home-state
defendant has been served in accordance with state law; until then, a state court lawsuit is
removable under Section 1441(a) so long as a federal district court can assume jurisdiction over
the action.” Id. at 705.
Gibbons resolved the precise issue currently before the Court. Plaintiff’s alternative
interpretation of the relevant statutory language, (ECF No. 12), his disagreement with the Second
Circuit’s reasoning, (id.), and his citations to statements critical of Gibbons made during a
Congressional hearing, (ECF No. 13), are unavailing in the face of clear, directly applicable, and
binding precedent.
The Court therefore DENIES Plaintiff’s motion to remand. This case is respectfully
referred to Judge Brown to oversee discovery.
SO ORDERED.
Dated: November 26, 2019
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE