United States District Court, D. Connecticut
ORDER REMANDING CASE
R. UNDERHILL, United States District Judge
Pastorelli-Cuseo removed a foreclosure action against her
and Albert Cuseo from Connecticut Superior Court.
See Doc. No. 1. When Cuseo previously removed the
same foreclosure action from state court, my colleague United
States District Judge Jeffrey A. Meyer remanded for untimely
removal and lack of subject matter jurisdiction. See
Order, Doc. No. 16, No. 3:17-cv-01190 (JAM) (D. Conn. Aug. 4,
2017). Applying the law of the case doctrine, I adhere to
Judge Meyer's ruling and sua sponte remand the
case to state court.
17, 2014, Bank of America initiated an action to foreclose on
property owned by Cuseo and Pastorelli-Cuseo. See
Compl., No. FBT-CV14-6043796-S (Conn. Super. Ct. June 17,
2014). Bank of America amended its complaint on September 1,
2015. Doc. No. 131.00, id. (Sept. 1, 2015). Both
Cuseo and Pastorelli-Cuseo moved to dismiss the action, Docs.
Nos. 143.00 & 145.00, id. (Apr. 4, 2016), but
the Superior Court denied their motions. Doc. No. 143.10,
id. (June 7, 2017). Shortly after the Superior Court
denied the motions to dismiss, Cuseo removed the case to
federal court. Doc. No. 181.00 (July 18, 2017). The case
was assigned to Judge Meyer and given the docket number
America moved to remand to state court, arguing that removal
was not allowed on the basis of either diversity jurisdiction
(because Cuseo is a citizen of Connecticut),  or federal
question jurisdiction (because no federal claims appeared on
the face of Bank of America's complaint). See
Doc. No. 12, No. 3:17-cv-01190 (JAM) (D. Conn. July 25,
2017). In addition, Bank of America argued that removal was
untimely, having occurred well beyond the statutory period of
“30 days after the receipt by the defendant . . . of a
copy of the initial pleading.” See 28 U.S.C.
§ 1446(b). Cuseo opposed Bank of America's motion to
remand. See Doc. No. 15, No. 3:17-cv-01190 (JAM) (D.
Conn. Aug. 2, 2017).
August 4, 2017, Judge Meyer granted the motion to remand
“for substantially the reasons set forth in
plaintiff's motion.” Order, id. (Aug. 4,
2017). In particular, Judge Meyer noted that “there is
no basis for removal on grounds of diversity jurisdiction in
light of the limitation set forth in 28 U.S.C. §
1441(b), ” and that Cuseo had not “shown that
there is any federal question jurisdiction or that the
removal of th[e] action [was] otherwise timely.”
Id. Because Judge Meyer deemed Cuseo's
“removal . . . [to be] plainly frivolous, ” he
ordered Cuseo to pay Bank of America's attorneys'
fees and costs in connection with the motion to remand.
August 22, 2017, the Clerk effected remand to Connecticut
Superior Court. Doc. No. 18, id. (Aug. 22, 2017);
Doc. No. 184.00, No. FBT-CV14-6043796-S (Conn. Super. Ct.
Aug. 24, 2017). The Superior Court scheduled trial to begin
on October 3, 2017. See Doc. No. 186.50,
id. (Sept. 14, 2017). On October 3, 2017,
Pastorelli-Cuseo removed the case to federal court for a
second time. The case was assigned to me and given the docket
number 3:17-cv-01666 (SRU).
America filed a motion to remand on October 12, 2017. Doc.
No. 8. Because Pastorelli-Cuseo's notice of removal
unquestionably is barred by the law of the case doctrine, I
have not considered Bank of America's submission but
instead order remand sua sponte.
doctrine of the law of the case posits that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same
case.” Christianson v. Colt Indus. Operating
Co., 486 U.S. 800, 815-16 (1988) (internal brackets
omitted). The doctrine “applies to issues that have
been decided either expressly or by necessary implication,
” DeWeerth v. Baldinger, 38 F.3d 1266, 1271
(2d Cir. 1994), and has as much force with respect to
“the decisions of a coordinate court in the same case
as to a court's own decisions.”
Christianson, 486 U.S. at 816. Although the doctrine
is “discretionary, not mandatory, ” Rezzonico
v. H&R Block, 182 F.3d 144, 149 (2d Cir. 1999)-in
that it “does not limit a court's power to
reconsider . . . decisions, ” DiLaura v. Power
Auth., 982 F.2d 73, 76 (2d Cir. 1992)-the law of the
case “expresses the general practice of refusing to
reopen what has been decided.” United States v.
Birney, 686 F.2d 102, 107 (2d Cir. 1982). Courts
“may depart from the law of the case for
‘cogent' or ‘compelling' reasons, ”
such as “an intervening change in law, availability of
new evidence, or ‘the need to correct a clear error or
prevent manifest injustice.'” Johnson v.
Holder, 564 F.3d 95, 99-100 (2d Cir. 2009) (quoting
United States v. Quintieri, 306 F.3d 1217, 1230 (2d
Cir. 2002)). Nevertheless, “[a] court should be
‘loathe' to revisit an earlier decision ‘in
the absence of extraordinary circumstances.'”
N. River Ins. Co. v. Phila. Reins. Corp., 63 F.3d
160, 165 (2d Cir. 1995) (quoting Christianson, 486
U.S. at 817).
district court's remand order “establishes the law
of the case” with respect to the case's
removability. Midlock v. Apple Vacations W., 406
F.3d 453, 457 (7th Cir. 2005); accord Jackson v. Metro.
Prop. & Cas. Ins. Co., 2008 WL 58953, at *2 (M.D.
Fla. Jan. 3, 2008) (“When a case is remanded back to
state court after an improper removal, the remand becomes the
law of the case.”); cf. Christianson, 486 U.S.
at 816 n.5 (law of the case applies to decisions that
“implicate . . . jurisdiction”). Moreover, a
federal statute, 28 U.S.C. § 1447(d), effectively makes
the doctrine mandatory in removal cases. That statute
provides that “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal
or otherwise.” Thus, a defendant may only “file a
second removal petition when subsequent pleadings or events
reveal a new and different ground for removal.” One
Sylvan Road N. Assocs. v. Lark Int'l, 889 F.Supp.
60, 62 (D. Conn. 1995); compare St. Paul & Chi. Ry.
Co. v. McLean, 108 U.S. 212, 217 (“[A] party is
not entitled . . . to file a second petition for the removal
upon the same grounds, where, upon the first removal by the
same party, the federal court declined to proceed and
remanded the suit . . . .”), with Fritzlen v.
Boatmen's Bank, 212 U.S. 364, 372 (1909)
(“[I]f, after an order to remand has been made, it
results, from the subsequent pleadings or conduct of the
parties to the cause, that the cause is removable, . . . a
second application to remove may be made . . . .”). In
other words, section 1447(d) and the law of the case doctrine
collectively bar “a successive removal by the same
party on the same grounds if nothing of significance has
changed since the prior removal.” Hughes v. Mylan
Inc., 2011 WL 5075133, at *6 (E.D. Pa. Oct. 25, 2011)
(citing Bank of N.Y. Mellon v. Ribadeneira, 2011 WL
3843817, at *1 (D. Ariz., Aug. 30, 2011)).
present case, Judge Meyer already concluded that the lawsuit
is not removable. Pastorelli-Cuseo has not identified any
“cogent and compelling reasons” or
“extraordinary circumstances” that would warrant
revisiting Judge Meyer's determination. See
Johnson, 564 F.3d at 99; N. River Ins. Co., 63
F.3d at 165. Indeed, Pastorelli-Cuseo's notice of removal
is almost identical to Cuseo's earlier one. Furthermore,
“subsequent pleadings or events” have not
“reveal[ed] a new and different ground for
removal.” See Lark Int'l, 889 F.Supp. at
62; see Deutsche Bank Nat'l Tr. v. Jenkins, 2008
WL 4926968, at *1 (S.D. Fla. Nov. 17, 2008) (“[A]
pleading must establish that the Court's consideration of
the second removal is more than reconsideration of the
‘same grounds' upon which the case was first
removed.”). To the contrary, “from a removal
perspective, this case is the same as it ever was. The same
Plaintiff ha[s] sued the same Defendants, . . . bring[ing]
the same legal claims and seek[ing] the same relief as sought
previously.” Hughes, 2011 WL 5075133, at *6.
As such, Pastorelli-Cuseo's second notice of removal
constitutes an improper attempt to ‘circumvent section
1447(d)'s prohibition on reconsideration, ” see
Nicholson v. Nat'l Accounts, 106 F.Supp.2d 1269,
1271 (S.D. Ala. 2000), and is “barred by the doctrine
of the law of the case.” See Midlock, 406 F.3d
adhere to Judge Meyer's earlier ruling on the basis of
the law of the case doctrine, and conclude that there is no
federal subject matter jurisdiction over this case.
Therefore, I order the case remanded to Connecticut Superior
Court. Because Pastorelli-Cuseo's removal “served
to delay ongoing state court proceedings” and (in light
of Judge Meyer's ruling) was even more “plainly
frivolous” than Cuseo's, see Doc. No. 16,
No. 3:17-cv-01190 (JAM) (D. Conn. Aug. 4, 2017), I ...