     08-4071-cv
     Kenmore Associates, L.P. v. Burke



                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



            At a stated term of the United States Court of Appeals for the Second Circuit,
     held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
     the City of New York, on the 17th day of February, two thousand ten.

     PRESENT:
                 ROSEMARY S. POOLER,
                 DEBRA ANN LIVINGSTON,
                           Circuit Judges,
                 DENNY CHIN,*
                           District Judge.
     ___________________________________________________

     Kenmore Associates, L.P., Housing & Service, Inc.,
     Norris, McLaughlin & Marcus,

                                   Plaintiffs-Appellees,

                    v.                                                  08-4071-cv

     Brian Burke,

                             Defendant-Appellant.
     ____________________________________________________

     FOR APPELLANT:                Brian Burke, pro se, New York, New York.

     FOR APPELLEES:                Dean M. Roberts, Norris, McLaughlin & Marcus, P.A., New
                                   York, New York.




            *
               Denny Chin, of the United States District Court for the Southern District of New York,
     sitting by designation.
      Appeal from a judgment of the United States District Court for the Southern District
of New York (Daniels, J.).

    IT IS HEREBY ORDERED that the judgment of the district court be
REVERSED and the matter REMANDED with instructions.

       Appellant Brian Burke, pro se, appeals from a judgment1 of the district court
denying his “attempt to remove” a state court matter to the district court and dismissing the
case. We assume the parties’ familiarity with the case.

         “[R]emoval is effected by the defendant taking three procedural steps: filing a
notice of removal in the federal court, filing a copy of this notice in the state court, and
giving prompt written notice to all adverse parties.” 14 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 3736 (4th ed. 2009) (footnote omitted); see 28
U.S.C. § 1446(d). In the present case, it is undisputed that Appellant took each of these
three steps, and thus that the case was properly removed as a procedural matter. Although
the district court correctly determined that it lacked subject matter jurisdiction over the
case, see Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003), the court purported to
“deny” Appellant’s “attempt to remove this matter,” rather than remand the case to state
court. This was error. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”
(emphasis added)); see also Parker v. Della Rocco, 252 F.3d 663, 666 (2d Cir. 2001) (per
curiam) (noting that “§ 1447(c)…addresses the consequences of a jurisdictional flaw, i.e., it
mandates a remand rather than a dismissal” (emphasis in the original)). Accordingly, we
REVERSE the district court’s judgment and REMAND with instructions for the district
court to remand the matter to state court. We take no view on whether the pendency of this
appeal tolled Appellant’s time to appeal the housing court judgment, or on Appellant’s
entitlement to relief in the state appellate courts based on the fact that the state proceeding
continued to judgment after it had been removed.

       Appellant’s motions to submit corrected briefs, to strike the Appellees’ brief and
opposition, and for sanctions, injunctive relief, admission of documents, and a subpoena
duces tecum are DENIED.


                                              FOR THE COURT:

                                              Catherine O’Hagan Wolfe, Clerk




       1
          While no separate judgment was entered in this matter, the dismissal order was entered
in July 2008 and under the 2002 amendments to Federal Rule of Civil Procedure 58 and Federal
Rule of Appellate Procedure 4(a)(7), if a required separate judgment is not entered, it is deemed
to have been entered 150 days after entry of the dispositive order.

                                              2
