The Estate of Theodore Lipin v. Joan C. Lipin , 369 F. App'x 236 ( 2010 )

08-4423-cv
The Estate of Theodore Lipin et al. v. Joan C. Lipin
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
3 the City of New York, on the 11th day of March, two thousand ten.
4
5 PRESENT:
6 JOSEPH M. McLAUGHLIN,
7 Circuit Judge,
8 KIMBA M. WOOD,*
9 District Judge.**
10 ___________________________________________________
11
12 The Estate of Theodore Lipin, Robert G. Lipin, and Ann Susan
13 Markatos,
14 Plaintiffs-Appellees,
15 v. 08-4423-cv
16
17 Joan C. Lipin,
18 Defendant-Appellant.
19 ____________________________________________________
20
21 FOR DEFENDANT-APPELLANT: Joan C. Lipin, pro se, New York, N.Y.
22
23 FOR PLAINTIFFS-APPELLEES: David A. Berger, Allegaert Berger &
24 Vogel LLP, New York, N.Y.
*
The Honorable Kimba M. Wood, Senior Judge of the United States District Court for
the Southern District of New York, sitting by designation.
**
The Honorable Rosemary S. Pooler, originally a member of the panel, did not
participate in consideration of this appeal. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating
Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
1 Appeal from a judgment of the United States District Court for the Southern District
2 of New York (Pauley, Judge).
3 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
4 ADJUDGED, AND DECREED that the judgment of the district court be VACATED and
5 the matter REMANDED with instructions.
6 Appellant Joan C. Lipin, pro se, appeals from a judgment1 of the district court
7 “dismissing” for lack of subject matter jurisdiction the state court action she removed to
8 federal court. We assume the parties’ familiarity with the underlying facts, the procedural
9 history of the case, and the issues on appeal.
10 As an initial matter, upon consideration of the arguments raised therein, Lipin’s
11 pending motion to file her reply brief is hereby GRANTED, and her pending motion for
12 reconsideration of a March 2009 order of this Court regarding subpoenas served on Lipin is
13 hereby DENIED, because it has no basis in law.
14 Generally, with respect to a removed case, “[i]f at any time before final judgment it
15 appears that the district court lacks subject matter jurisdiction, the case shall be remanded”
16 back to state court. 28 U.S.C. § 1447(c) (emphasis added). This Court lacks jurisdiction to
17 review such “remand” orders. See id. § 1447(d). However, the district court here
18 “dismissed” the action for lack of subject matter jurisdiction. Accordingly, we have
19 jurisdiction to review the dismissal, and we review district court rulings on subject matter
1
Although no separate judgment was entered in this matter, the dismissal order was
entered in July 2008. 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
1 jurisdiction de novo. See SEC v. Berger, 322 F.3d 187, 191 (2d Cir. 2003).
2 There is no federal question jurisdiction over the removed action. See 28 U.S.C.
3 § 1441(b); Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). However, we cannot
4 determine on the present record whether diversity jurisdiction exists. See 28 U.S.C.
5 §§ 1332 and 1441(b). Accordingly, we VACATE the district court’s judgment and
6 REMAND the matter with instructions for the district court to conduct further proceedings
7 to determine whether remand to state court is appropriate. See United Food & Commercial
8 Workers Union, Local 919 v. CenterMark Props., 30 F.3d 298, 305-06 (2d Cir. 1994); see
9 also 28 U.S.C. §§ 1332, 1441 and 1447(c).
10
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
3