Comm'r of Soc. Servs. v. Clarke ( 2019 )

18-1579-cv
Comm’r of Soc. Servs. v. Clarke
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of May, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
COMMISSIONER OF SOCIAL SERVICES,
PETITIONER/ASSIGNEE ON BEHALF OF TAMMY
BOERTLEIN, ASSIGNOR,
Petitioner-Appellee, 18-1579-cv
v.
ROGER W. CLARKE, JR.,
Respondent-Appellant.
FOR PETITIONER-APPELLEE: Brian C. Mitchell, Assistant County
Attorney, Suffolk County Attorney’s
Office, Hauppauge, NY.
1
FOR RESPONDENT-APPELLANT: Roger W. Clarke, Jr., pro se, Yaphank, NY.
Appeal from orders of the United States District Court for the Eastern District of New York
(Joanna Seybert, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of jurisdiction.
Respondent-Appellant Roger W. Clarke, Jr. (“Clarke”), pro se, appeals from orders of District
Court remanding this action to the Family Court of the State of New York and denying
reconsideration of that decision. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We conclude that we lack jurisdiction over this appeal. When a district court timely remands
an action because of “a flaw encompassed by [28 U.S.C.] § 1447(c)—i.e., a defect in the removal
procedure or the absence of subject matter jurisdiction—§ 1447(d) makes the remand
unreviewable.” In re WTC Disaster Site, 414 F.3d 352, 364 (2d Cir. 2005); see also 28 U.S.C. § 1447(d)
(“An order remanding a case to the State court from which it was removed is not reviewable on
appeal or otherwise.”).1 Here, the District Court remanded the action pursuant to § 1447(c) after
finding that removal was untimely, and that Clarke failed to attach certain required documents to his
notice of removal. See Comm’r of Soc. Servs. v. Clarke, No. 17-CV-6030, 2017 WL 5195228, at *2
(E.D.N.Y. Nov. 9, 2017).. Because these defects constitute “flaw[s] encompassed by § 1447(c),” we
lack jurisdiction to review the merits of Clarke’s appeal.
We have reviewed all of the arguments with respect to jurisdiction raised by Clarke on appeal
and find them to be without merit. For the foregoing reasons, the appeal is DISMISSED for lack of
jurisdiction.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
1
Indeed, we have previously held that “the ‘or otherwise’ language of section 1447(d) [even] bars
district courts from reconsidering orders remanding cases on section 1447(c) grounds.” Shapiro v.
Logistec USA, Inc., 412 F.3d 307, 312 (2d Cir. 2005).
2