# Williamson v. Cestaro

> District Court, E.D. New York · May 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10306223

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306223

## How later opinions describe it (automated extraction)

- holding that third-party defendants may not remove a case from state court under 1441(c) in light of the Supreme Court’s directive to resolve ambiguities against removal
- holding that “removal by a defendant rather than by a third-party defendant is a logical limitation on Section 1441(c),” because “Section 1441(c) . . . receive[s] its vitality from the general removal section, 1441(a

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

ANTHONY WILLIAMSON, et al.

Plaintiffs, MEMORANDUM & ORDER
21-CV-2465(EK)(PK)
-against-

JOSEPH CESTARO,

Defendant.

------------------------------------x
ERIC KOMITEE, United States District Judge:
This case concerns the upcoming election being held by
a union, the Construction & General Building Laborers Local 79
(“Local 79”). The parties dispute who may use the phrase “Clean
Slate” in the election. The lawsuit was initially filed in
state court, but third-party counterclaim defendants Michael
Prohaska and Local 79 removed it here on May 3, 2021. For the
reasons set forth below, I conclude that the removal was
improper and remand the case.
Background

On March 31, 2021, Anthony Williamson and Chaz
Rynkiewicz (members of Local 79’s Executive Board) brought a
state-law action in the Supreme Court of the State of New York,
Kings County, against Joseph Cestaro, a fellow citizen of New
York. Cestaro is a candidate for business manager in Local 79’s
upcoming election. See State Complaint, ECF No. 9, Ex. 6. They
allege that Cestaro’s New York State service-mark registration
for the phrase “Clean Slate” was procured by fraud because
Cestaro misrepresented to the New York Department of State that

he “owned” the term personally, even though the phrase has been
used by candidates for union office for decades. Id. They
asked the state court to revoke the mark.
In response, Cestaro brought counterclaims against
Williamson and Rynkiewicz seeking, among other things, a
declaratory judgment that he is the rightful owner of the mark.
See Answer with Counterclaims and Cross-Claims, ECF No. 9, Ex.
7. Cestaro also filed counterclaims against others — namely,
third-party counterclaim defendants Michael Prohaska and Local
79, alleging, inter alia, trademark infringement, wrongful
termination, and defamation, and challenging the draft ballot
prepared by the Local 79 Judges of Election. Id. Prohaska is

campaigning for the same position at Local 79 — business manager
— as Cestaro. Both candidates are using the “Clean Slate”
moniker.
On May 3, 2021, Prohaska and Local 79 (the “Third-
Party Counterclaim Defendants”) removed the case pursuant to
28 U.S.C. § 1441. See Notice of Removal, ECF No. 1. In the
Notice, they assert that federal jurisdiction exists under
Section 301(a) of the Labor Management Relations Act, 29 U.S.C
§ 185(a), because Cestaro’s counterclaims against them are
“substantially dependent” on the application of Local 79’s
constitution. See Notice of Removal ¶ 8 (citing Whitehurst v
1199 SEIU United Healthcare Workers E., 928 F.3d 201, 208 (2d
Cir. 2019)).

On May 11, 2021, Cestaro filed a motion in this Court
for a temporary restraining order and a preliminary injunction.
He seeks to enjoin anyone on the ballot from using the phrase
“Clean Slate.” ECF No. 9.
Legal Standard
Federal courts are possessed of limited jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (federal courts “possess only that power authorized by
Constitution and statute, which is not to be expanded by
judicial decree” (internal citations omitted)). “Only state-
court actions that originally could have been filed in federal
court may be removed to federal court.” Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987). Where an action has been

removed from state court, “[i]f at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
The removing party “has the burden of establishing
that removal is proper.” United Food & Com. Workers Union, Loc.
919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d
298, 301 (2d Cir. 1994). The right to remove is statutory,
established by 28 U.S.C. §§ 1441-1445. As a result, the Supreme
Court in Shamrock Oil & Gas Corp. v. Sheets directed federal
courts addressing removal to “scrupulously confine their own

jurisdiction to the precise limits which the statute has
defined.” 313 U.S. 100, 109 (1941). For this reason, “federal
courts construe the removal statute narrowly, resolving any
doubts against removability.” Somlyo v. J. Lu–Rob Enters.,
Inc., 932 F.2d 1043, 1045–46 (2d Cir. 1991). If there is
ambiguity as to whether removal is appropriate, a court must
adopt a construction consistent with this restrictive approach,
rather than expand the scope of removability. See Am. Fire &
Cas. Co. v. Finn, 341 U.S. 6, 9-10 (1951).
Discussion

A. 28 U.S.C. § 1441(a)
In their Notice of Removal, the Third-Party
Counterclaim Defendants originally invoked Section 1441(a) of
the removal statute. They now concede, however, that they have
no right to remove under that Section. See Letter by
Construction and General Building Laborers Local 79, Michael
Prohaska, ECF No. 7.
Clear authority compels this concession. Section
1441(a) does not contemplate removal by third-party defendants
(i.e., defendants who were not named in the original complaint).
Section 1441(a) states that “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 . . . .” (emphasis added).

And the Supreme Court recently confirmed that third-party
defendants against whom counterclaims are asserted may not
remove under Section 1441(a). Home Depot U.S.A., Inc. v.
Jackson, 139 S. Ct. 1743, 1750 (2019). Courts in this Circuit
have applied this principle to other third-party claims as well.
See, e.g., Broad Coverage Serv. v. Oriska Ins. Co., No. 20-CV-
11108, 2021 WL 930458, at *2 (S.D.N.Y. Mar. 11, 2021) (third-
party defendants who claimed to be “real party-in-interest” were
not “defendants to the original action, and thus they are not
‘defendants’ who can seek removal under § 1441(a)”); Casul v.
Modell’s NY II, Inc., No. 04-CV-7204, 2004 WL 2202581, at *2

(S.D.N.Y. Sept. 30, 2004) (“[C]ourts have routinely held that a
third-party [impleaded] defendant may not remove under section
1441(a).” (collecting cases)).
B. 28 U.S.C. § 1441(c)
The Third-Party Counterclaim Defendants now argue that
removal in this case is proper under a different provision of
the removal statute: 28 U.S.C. § 1441(c). As relevant here,
that provision provides that:
(1) If a civil action includes —

(A) a claim arising under the Constitution, laws, or
treaties of the United States (within the meaning of
section 1331 of this title), and

(B) a claim not within the original or supplemental
jurisdiction of the district court or a claim that has
been made nonremovable by statute,

the entire action may be removed if the action would be
removable without the inclusion of the claim described
in subparagraph (B).
This provision perhaps poses a closer question than
removal under Section 1441(a). Unlike Section 1441(a), Section
1441(c) does not explicitly limit removal to “the defendant or
the defendants” to the action. In light of this distinction,
some courts have read Section 1441(c) to be ambiguous with
regard to whom it allows to remove. E.g., St. John’s Univ. v.
Certain Underwriters at Lloyd’s, 760 F. Supp. 2d 381, 383
(S.D.N.Y. 2011). In resolving this ambiguity, the “majority” of
courts have construed this Section “against allowing removal [by
third-party defendants], as the Supreme Court has directed lower
courts” to do. Id.; see also Casul, 2004 WL 2202581, at *2
(noting that “most courts . . . simply do not read section
1441(c) as permitting removal by a third party defendant”). By
contrast, the “minority view posits that . . . a third-party
defendant can remove the entire lawsuit” under Section 1441(c),
at least in “certain circumstances.” St. John’s Univ., 760 F.
Supp. 2d at 383. Prohaska and Local 79 urge me to adopt the
minority position here. For the reasons set out below, I
conclude that the majority view is correct — both as a textual
matter, and in light of the Supreme Court’s directive to

construe the removal statute against removability when ambiguity
exists.
1. The text of the statute supports the view that third-
party counterclaim defendants may not remove under
Section 1441(c)
As noted above, Section 1441(a) sets out an express
limitation on which parties may remove, by stating that removal
must be by “the defendant or the defendants.” The Third-Party
Counterclaim Defendants do not argue that Section 1441(c)
explicitly expands this authorization to third-party
counterclaim defendants. Instead, they claim that Section
1441(c) does so implicitly, by omitting the “defendant or the
defendants” language found in Section 1441(a). Under this
reading, Section 1441(c) allows an entirely new category of
parties to remove actions, without any express statement from
Congress to that effect.
This argument is unpersuasive. The fact that Congress
did not repeat the term “defendant” in another provision of the
same statute does not imply that it meant to expand the class of
parties who may remove. Instead, the better reading is a
common-sense one. Section 1441(c) is intended to bring
additional clarity to the question of which categories of claims
can be removed – not to expand or contract the universe of
parties who can remove them. Read in this manner, Section
1441(c) serves only “to clarify that in cases removed on the

basis of federal question jurisdiction, the district court
retains discretion to either adjudicate or remand any other
nonremovable claims.” Arrow Fin. Servs., LLC v. Massil, No. 08-
CV-437, 2009 WL 348553, at *6 (E.D.N.Y. Feb. 11, 2009); see also
Gold Town Corp. v. United Parcel Serv., Inc., No. 20-CV-6287,
2021 WL 355057, at *6 (S.D.N.Y. Feb. 2, 2021) (reading Section
1441(c) “as limited to the subset of removed cases involving
both federal and state claims in which the Court would not have
supplemental jurisdiction over the state claims”).
There is substantial support for this reading. For
example, in Bowling v. U.S. Bank Nat’l Ass’n, 963 F.3d 1030,
1036-38 (11th Cir. 2020), the Eleventh Circuit held that “the

most natural reading of the statute is that removal is generally
authorized under (a), with (c) providing additional criteria for
a certain subset of civil actions.” Id. at 1038. Other courts
have adopted this approach as well. See, e.g., Greater N.Y.
Mut. Ins. Co. v. Anchor Const. Co., 326 F. Supp. 245, 248 (E.D.
Pa. 1971) (holding that “removal by a defendant rather than by a
third-party defendant is a logical limitation on Section
1441(c),” because “Section 1441(c) . . . receive[s] its vitality
from the general removal section, 1441(a)[,] which grants the
right to removal to a ‘defendant or defendants’”).
The Supreme Court’s reasoning in Home Depot further

supports this conclusion. There, the Court held that third-
party counterclaim defendants cannot remove under Section
1441(a), in part because the phrase “civil action” in that
Section refers to the action “as defined by the plaintiff’s
complaint,” which (by definition) excludes third-party
counterclaim defendants. Home Depot, 139 S. Ct. at 1748
(cleaned up) (noting that “the civil action . . . of which the
district court must have original jurisdiction is the action as
defined by the plaintiff’s complaint . . . .”). Section 1441(c)
also refers to the removal of a “civil action.” And a settled
canon of statutory interpretation dictates that the contours of
the “civil action” referred to in 1441(c) should be coterminous

with the one referred to in 1441(a), as defined by the Supreme
Court in Home Depot. See Sorenson v. Sec’y of Treasury of U.S.,
475 U.S. 851, 860 (1986) (general rule of statutory construction
assumes that “identical words used in different parts of the
same act are intended to have the same meaning”). This maxim
supports reading the phrase “civil action” in subsection (c) to
require a federal question to appear on the face of the
plaintiff’s complaint. Thus, the Supreme Court’s reasoning in
Home Depot supports the conclusion that third-party counterclaim
defendants cannot remove actions under Section 1441(c). See
Bureaus Inv. Grp. Portfolio No. 15, LLC v. Athey, No. 20-CV-517,
2020 WL 7333377, at *2 (W.D. Wis. Dec. 14, 2020) (adopting this

analysis).
2. Ambiguity must be resolved in favor of remand
This could be the end of the analysis. But, even
assuming — arguendo — that Section 1441(c) is susceptible to
multiple interpretations, binding and settled guidance requires
that I adopt the narrower one — that is, the interpretation that
favors remand. See Shamrock Oil, 313 U.S. 100 at 109 (the
removal statute must be strictly construed against the extension
of federal jurisdiction). For this reason, too, I conclude that
Section 1441(c) does not permit removal here. To conclude
otherwise would “expand federal jurisdiction beyond the
parameters established by Congress,” in contravention of the
Supreme Court’s admonition in Shamrock Oil. Crawford by
Crawford v. Hosp. of Albert Einstein Coll. of Med., 647 F. Supp.

843, 846 (S.D.N.Y. 1986). “This brand of statutory
interpretation is misplaced, especially in the context of the
removal statute.” Id.
Employing this reasoning, courts in the Second Circuit
have — with near unanimity — declined to permit third-party
defendants to remove under Section 1441(c). See, e.g., Certain
Underwriters at Lloyd’s v. Art Crating, Inc., No. 12-CV-5078,
2014 WL 123488, at *17 (“Given the Supreme Court’s guidance that
removal legislation be strictly construed . . . the majority
view that third-party defendants lack standing to remove cases

[under Section 1441(c)] to federal court is more persuasive . .
. .”); St. John’s Univ., 760 F. Supp. 2d at 383 (holding that
third-party defendants may not remove a case from state court
under 1441(c) in light of the Supreme Court’s directive to
resolve ambiguities against removal); Arrow Fin. Servs., LLC,
2009 WL 348553, at *3-7 (remanding and noting that as a rule of
interpretation, “[i]n light of the congressional intent to
restrict federal court jurisdiction, as well as the importance
of preserving the independence of state governments, federal
courts construe the removal statute narrowly”); Fed. Ins. Co. v.
Tyco Int’l Ltd., 422 F. Supp. 2d 357, 373 (S.D.N.Y. 2006) (the
majority “view is more faithful to the Supreme Court’s

instruction . . . to strictly construe the removal statute”);
see also 16 James W. Moore, MOORE’S FEDERAL PRACTICE § 107.41[6] (3d
ed. 2021) (“The better view, consistent with the principle that
removal jurisdiction is to be strictly construed, is that third-
party claims [under Section 1441(c)] are not removable.”). The
Third-Party Counterclaim Defendants present no compelling reason
to depart from the weight of this authority.
Conclusion
For the foregoing reasons, this case is remanded to
the Supreme Court of the State of New York, Kings County. The
Clerk of Court is respectfully directed to remand the action,

send a certified copy of this Order to the Clerk of that court,
and close this case.

SO ORDERED.

_/s/ Eric Komitee________________
ERIC KOMITEE
United States District Judge

Dated: May 24, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306223. Public record. Not legal advice.