Petition for Writ of Certiorari — Gerald Nelson, Petitioner v. Amalgamated Transit Union Local 1181-1061, AFL-CIO, et al.

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IN THE SUPREME COURT OF THE UNITED STp'ESpjL^Q

Gerald Nelson

Petitioner,

SEP 1 9 2019

OFFICE OF THE CLERK

SUPREME COURT; I IS

V.

Amalgamated Transit Union Local 1181-1061

AFL-CIO MV Transportation, Inc. Jessica D. Ochs,Michalaire Phantor

Respondent,

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATE COURT OF APPEALS

FOR THE SECOND CIRCUIT COURT

PETITION FOR WRIT OF CERTIORARI

Pro Se-Gerald Nelson

293 Ralph Avenue FL. 2

Brooklyn,NY, 11233

Tel. 347-737-2217

LIST OF ALL PARTIES

X all parties appear in the caption of the case.

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TABLE OF CONTENTS

page

QUESTION

1

ORDERS BELOW-

■2

JURISDICTION

•2

CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED----- 2

STATEMENT­

'S

COURT OF APPEALS ORDERS

-5

REASON FOR GRANTING THE PETITION-

—6

I.

II.

III.

THE BELOW CONFLICTS WITH FEDERAL RULES OF

PROCEDURE---------------------------------------------------

6

THE DECISION BELOW CONFLICT WITH PREVIOUS

OF THE UNITED STATES SUPREME COURT-----------

7

THE DECISION BELOW CONFLICT WITH THE UNITED

STATES SUPREME COURT-------------------------------------

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CONCLUSION—

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APPENDIX A- ORDER OF SECOND CIRCUIT

DATED MARCH 14,2019, (1 PAGE)

APPENDIX B- REHEARING ORDER OF SECOND CIRCUIT

DATED APRIL 22, 2019,) (1 PAGE

APPENDIX C- NEW YORK EASTERN DISTRICT ORDER

DATED OCTOBER 22,2018 (2 PAGES)

APPENDIX D -NEW YORK EASTERN DISTRICT REMAND ORDER

DATED DECEMBER 21,2018 (2 PAGES)

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TABLE OF AUTHORITIES

Page

BELL V. HOOD 327 U.S. 678 (1946)

9

CALIFORNIA DIVERSIFIED PROMOTION V MUSIC 393 U.S. 278

-7

(1968)

DODD V. SPOKANE COUNTY COUNTY 393 F2d. 330, (196------

8

GRANNIS V. ORDEAN 234 U.S. 385, (1914)------------------ ------

10

LEWIS V. NEW YORK 547 F2d. 4,6 , (2 Cir. 1976)----------------- -

7

LITERATURE V. QUINN, 482 F.2d. 372 (1st Cir. 1973)--------------

8

Mulane V. HANOVER BANK & TRUST et. al. 339 U.S. 306 (1950)----- 10

m

QUESTIONS PRESENTED

1. Complete-Preemption Doctrine refers to a rule that a federal statue’s

preemptive force may be so extraordinary and all-encompassing that it converts an

ordinary state-common-law complaint into one stating a federal claim for purposes

of the well-pleaded-complaint rule. Question presented can United States Court of

Appeal and District Federal Court, sua sponte a case when plaintiff has not had a

chance to file a complaint and respondent have not presented a federal question ?

2. Subject-matter jurisdiction is the authority of a court to hear cases of a

particular type or cases relating to a specific subject matter. Question presented is

does State Court have Jurisdiction when a case is removed to federal Court with a

summon and notice .or does Federal District Court lack Subject-matter jurisdiction

because a complaint has not been served ?

3. Does a Federal Court violate the Fourteenth Amendment when plaintiff is

not given a chance to respond to anything Respondent or Courts say in the case?

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ORDERS BELOW

The Second Circuit issued an order on March 14,2019 denying poor person

application and dismissing appeal. The Second circuit denied a rehearing

motion for reconsideration on April 22,2019.

JURISDICTION

This courts jurisdiction is invoked under 28 U.S.C. 1254 (1). Justice Ruth Bader

Ginsburgh extended the time to and including September 19,2019.

CONSTITUTIONAL AND STATUTORY PROVISIOS INVOLVED

Supremacy Clause(Article VI, clause 2), Amendment I, Amendment HI,section 2,

Fourteenth Amendment,The doctrine of complete preemption, 301 (a) Labor

Management Relations Act (‘LMRA”), 29 U.S.A. article 185,28 U.S. C. section

1446 (b) procedures for removal of civil action), 28 U.S.C. section 1447 (c),

(procedure after removal generally).

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STATEMENT OF THE CASE

Gerald Nelson (“Nelson”) filed a poor person application on August 15,2019 in

New York State Supreme Court, Kings County.The application was for the cost of

fees and cost related to the index no. bearing 2055/2018. Nelson is still employed

by MV Transportation and on workers compensation.

On September 7,2018, Justice Genine D. Edwards issued an Order to Show

Cause that Nelson submitted ex partte requiring appearances on September 27,

2018.

On September 27,2018, Justice Loren Baily-Shiffinan issued an Order

adjourning the Order to Show Cause to November 8, 2018, and requiring Nelson to

serve the motion papers, and summons and notice on respondents.

Nelson served defendants on October 10,2018. On October 23,2018, Nelson

received a Letter from Richard A. Brooks Attorney for Defendant local 1181-1061.

The Letter Stated: “ Re: Nelson v. Amalgamated Transit Union Local

1181-1061,et al, Index No. 2055/2018- Dear Justice Baily-Schiffinan: This office

represents defendants Local 1181-1061, Amalgamated Transit Union, AFLCIO (“Local 1181”), and Jessica D. Ochs in the above-refrenced matter We

understand that an appearance has been scheduled for November 8,2018.

As we notified plaintiff, on October 19,2018 Local 1181 filed a Notice o

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Removal of this case in the United States District Court for the Eastern of New

York, the venue in which plaintiff previously unsuccessfully sued defendants over

what appears To be the same matter. On October 22,2018, Local 1181 filed a

Notice of Filing of Notice of Removal of this case with the Clerk of the Court,

New York Supreme Court, County of Kings. A courtsey copy of the Notice of

Removal is enclosed.

Pursuant to U.S.C. article 1446(d), the above action by defendants effected the

removal of this case,and this Court no longer has jurisdiction unless and until the

Federal court Remands the case. Accordingly, we respectfully submit that this case

must be removed from the calendar and not rescheduled unless and until the

Federal court remands the case. Also in the light of the above, we will not be

appearing on November 8,2018.”

The Letter was signed by Richard A. Brooks Attorney, for local 1181-1061.

At the the bottom was a foot note numbered as (1), stating “ On October 22,2018,

United States District Judge Brian M. Cogan dismissed plaintiff’s case sjia snonte

Pursuant to 28 U.S.C. section 1915 and warned plaintiff against continuing to file

frivolous actions.”

Nelson never had a chance to respond to the removal because everything was

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done in one day, without any hearing or submission of papers. On October

26,2018, Nelson Appealed the order with the United States Court of Appeals for

the 2nd Circuit.

On November 17,2018 Nelson filed a motion to Remand and Motion to vacate ,

Order dated Oct. 26,2018, entered Oct. 29,2018, pursuant to 28 U.S.C 1447 (c),

and rule 60 (b), (6).

Nelson respectfully asked the District Judge to remand the case back to state

court because it was improperly removed and the federal court lacked Subject

matter jurisdiction.The remand motion by Nelson was denied.

Nelson appealed the Remand Order, that was denied on January 7,2019. On the

same day, January 7,2019. Nelson filed in forma motion with affidavit.

A. The United States Court of Appeals denied Nelson in forma pauperis motion

and dismissed the appeal,saying it lacked an arguable basis either in law or fact.

Nelson was never given a chance to respond, there was no opposition from the

respondents to Neson’s motion in the United States Second Circuit.

B. Panel Hearing in United State Second Circuit was denied

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REASON FOR GRANTING THE PETITION

I. THE DECISION BELOW CONFLICTS WITH FEDERAL RULES OF

PROCEDURE.

Federal rules of procedure, rule 28 U.S.C. Section 1446 (b), (1), states “The notice

of removal of a civil action or proceeding shall be filed within 30 days after the

receipt by the defendant, through service or otherwise, of a copy of the initial

pleadings setting forth the claim for relief upon which such action or proceeding is

based, or within 30 days after the service of the summons upon the defendant if

such initial pleading has then been filed in court and is not required to be served on

the defendant, whichever period is shorter.”

Federal rules of procedure, 28 U.S.C. Section 1447 (c) , states “A motion to the

case on the basis of any defect other than lack of subject matter jurisdiction must

be within 30 days after the filing of the notice of removal under section 1446 (a).

If at any time before final judgement it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded. An order remanding the case may

require payment ofjust cost and any actual expenses, including attorney

fees,incurred as a result of removal. A certified copy of the order of remand shall

be mailed by the clerk of the State court.The state court may thereupon proceed

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with such case” The Respondents removed the case without a complaint. The

Federal District Judge based both of his orders on an affidavit of Nelson’s Order to

Show Cause. The attorney for the local 1181-1061 (“Richard A . Brooks”), Just

totally ignored showing up in State court. Instead of appearing in person, a letter

was sent. The assertion of federal Subject Matter Jurisdiction is insufficient on

removal. When there is no federal question presented by respondents or parties that

remove the case. The well pleaded complaint rule is not satisfied and removal is

not proper without a complaint. The Complete preemption Doctrine was applied

erroneously.

H . THE DECISION BELOW CONFLICTS WITH PREVIOUS DECISION

OF THE UNITED STATES SUPREME COURT OF THE SECOND

CIRCUIT, AND OTHER CIRCUITS,FIRST CIRCUIT AND NINTH

CIRCUIT.

The Second Circuit decision in Nelson’s case is not in uniformity with it’s own

decision in Lewis v. New York 547 F2d 4.6 (2 Cir. 1976L Chief Justice Kaufman

States “ Failure to address the court’s sua sponte motion to dismiss is by itself,

grounds for reversal. California Diversified Promotion v Music 505 F2d 278

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(9thCir.l974). States ” The right to a hearing on the merits of a claim over which

The court has jurisdiction is of the essence of our Judicial system and the Judges

feeling that the case is probably frivolous does not justify by- passing the right.

Appellant is entitled to have process issued and served, and to be heard”.

Literature inc. v. Quinn, 482 F2d 372 (19731 States” While no motion to dismiss

had been filed, a district Court may in appropriate circumstances note the

inadequacy of the complaint and, on its own initiative dismiss the complaint Dodd

v. Spokane County, 393 F2d 330 (9th Cir. 1968L 5 Wright and Miller Federal

Practice and Procedure Civil. Sec. 1337. Yet a court may not do so without at

least giving plaintiff notice of the proposed action and affording them an

opportunity to address the issue, Dodd supra, 393 F2d at 334. This alone might

well justify reversal here, since there is no indication that notice of a possible

dismissal was given. Here however, we also find primarily on the bases of legal

developments which have transpired since the district court acted, that the

dismissal was erroneous as a matter of law.”

Nelson was never given a chance to answer, because the case was improperly

removed. If respondent for local 1181-1061 (Richard A. Brooks) would have

followed procedure, Nelson would have filed a complaint.

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CPLR 3012 (b) states “ Service of complaint where summons served without

complaint.If the complaint is not served with summons, the defendant may serve a

written demand for the complaint within the time provided in subdivision (a) of

rule 320 for an appearance. Service of the complaint shall be made within twenty

days after service of the demand. Service of the demand shall extend the time to

appear until twenty days after service of the complaint. If no demand is made, the

complaint shall be served within twenty days days after service of appearance. The

court upon motion may dismiss the action if service of the complaint is not made

as provided in this subdivision. A demand or motion under this subdivision does

not in itself constitute an appearance in the action”. Respondents never demanded

a complaint from Nelson.

HI. THE DECISION BELOW CONFLICTS WITH THE UNITED STATES

SUPREME COURT.

Although the United States Supreme Court has never ruled on whether sua

sponte decision violate due process,it has issued a number of rulings on related

points. In Bell v. Hood 327 U.S. 687 (19461 it states ’’Whether the complaint

states a cause of action on which relief could be granted is a question of law which

must be decided after, and not before, the court assumes jurisdiction”. Nelson was

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never given a chance to submit a complaint. Due to the respondent improperly

removing the case, and violating federal rules. The Fourteenth Amendment

provides “No state shall...deprive any person of life, liberty, or property, without

due process of law... “U.S CONST .amendXIV, section 1. Mullane v. Central

Hanover Bank & Trust et. al. 339 U.S. 306 (19501. The fundamental requisite of

due process of law is to be heard, Grannis v. ordean, 234 U.S. 385.394 (19141. This

right to be heard has little reality or worth unless one is informed that the matter is

pending an can choose for himself whether to appear or default, acquiesce or

contest “.

CONCLUSION

Nelson qualified for in forma pauperis status, The Federal District Court and

The United States Second Circuit, never gave Nelson a chance to respond. Sua

sponte dismissal violate the principles of fundamental rights to the court. Nelson

Respectfully asks this Court to grant Certiorari or in the alternate, remand case

Back to State Court, and any relief the Court deems just and proper.

September 19,2019

Respectfully submitted,

Gerald Nelson/Tel:347-737-2217

293 Ralph Avenue

Brooklyn, NY, 11233

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