Denny Chin, of the United States District Court for the Southern District of New York, *

sitting by designation.

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 17 day of February, two thousand ten. th

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.
 While no separate judgment was entered in this matter, the dismissal order was entered

1

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

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 judgment of the district court

1

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