Carro et al v. Gaul

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SHEILA J. CARRO, both individually and as Trustee;
CLARE E. VISK, both individually and as Trustee; and
CHRISTINA MEIER,
Plaintiffs,
vs. 	1:25-cv-01227
(MAD/TWD)
JEFFREY GAUL,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
MEIER LAW FIRM, PLLC 	CHRISTINA W. MEIER, ESQ.
10 Utica Avenue
Albany, New York 12110
Attorneys for Plaintiffs
JEFFREY GAUL
c/o Paula Gaul
2279 Preisman Drive
Schenectady, New York 12309
Defendant pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Jeffrey Gaul ("Defendant") is seeking removal of a case pending in the Rensselaer County
Surrogate's Court to the U.S. District Court for the Northern District of New York. See Dkt. No.
1. The pending case is regarding the trust of the late William Gaul, father of Defendant and
Plaintiffs Sheila Carro and Clare Visk. Id. In his purported notice of removal under 28 U.S.C. §
1441, Defendant mentions Carro, Visk, and attorney Christina Meier (collectively "Plaintiffs").
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Id. Defendant also filed an application for in forma pauperis ("IFP") status. See Dkt. No. 2. On
October 27, 2025, Plaintiffs filed a letter asking the Court to remand the case to the Surrogate's
Court. Dkt. No. 9. The same day, Magistrate Judge Thérèse Wiley Dancks issued a Report-
Recommendation and Order recommending that Defendant's IFP application be denied, and that
the matter be remanded to the Rensselaer County Surrogate's Court due to a lack of federal
subject matter jurisdiction. See Dkt. No. 8. For the reasons set forth below, the Court adopts
Magistrate Judge Dancks's Report-Recommendation and Order.
II. DISCUSSION
A. 	Standard of Review
When a party files specific objections to a magistrate judge's report-recommendation and
order, the district court makes a "de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. §
636(b)(1). However, when a party declines to file objections or files "[g]eneral or conclusory
objections, or objections which merely recite the same arguments presented to the magistrate
judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-
CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After
the appropriate review, this Court "may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
Additionally, federal courts must assess pro se litigants' filings under a more lenient
standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
Likewise, pro se litigants' filings should "be liberally construed," Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), and the Court must read
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Defendant's filings "to raise the strongest arguments that they suggest," Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation and emphasis omitted).
B. 	Defendant's Objections to the Report-Recommendation and Order
Defendant has stated seven numbered objections to Magistrate Judge Dancks's Report-
Recommendation and Order. See Dkt. No. 11 at 2-3. As explained below, even under a liberal
construction, Defendant's objections do not trigger de novo review of the Report-
Recommendation and Order.
Defendant's first objection, that he has not received information regarding his father's trust
from Plaintiffs, reiterates points made in his notice of removal. Id. at 2; see Dkt. No. 1 at ¶¶ 6-9.
Similarly, Defendant's second objection states that his "constitutional rights have been violated"
and asks the Court to "see [his] previous filings as they are relied on by [him] . . . ." Dkt. No. 11
at 2. Because this objection simply invites the Court to revisit Defendant's earlier arguments on
this issue, it does not warrant de novo review. In addition, Defendant's third objection, which
discusses the recommended denial of IFP status, is simply a rehashing of his IFP application with
no new supporting information. See id.; Dkt. No. 2. These objections warrant clear error review
because they either reiterate arguments already made or simply refer the Court to documents
already filed.
Defendant's fourth objection states that Magistrate Judge Dancks "did not address . . . the
constitutional issues[,] so [she] erred in [her] determination that [the Court] lack[s] subject matter
or personal jurisdiction." Dkt. No. 11 at 2. Although this objection appears to challenge
Magistrate Judge Dancks' analysis of subject matter jurisdiction, it fails to specify which
"constitutional issues" she purportedly did not address. Because this objection "fails to
substantively engage with the reasoning of the [Report-Recommendation and Order,]" it is
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conclusory and requires clear error review. Akhtar v. Adams, No. 23-CV-6585, 2024 WL
3862673, *1 (S.D.N.Y. Aug. 19, 2024), appeal dismissed, No. 24-2370, 2025 WL 2625360 (2d
Cir. July 31, 2025).
Defendant's fifth, sixth, and seventh objections are similarly nonspecific. The fifth
objection states Defendant's displeasure with the Report-Recommendation and Order and
emphasizes his desire for assistance from the Northern District of New York Federal Court Bar
Association's Pro Se Assistance Program, but does not identify any particularized issues that
would require de novo review. Dkt. No. 11 at 3. Likewise, the sixth and seventh objections
appear to broadly accuse Magistrate Judge Dancks of failing to "properly investigate" Defendant's
removal arguments, follow Supreme Court directives, and instruct Defendant on the proper way
to proceed. Id. These objections are conclusory because they fail to contest any specific aspects
of the Report-Recommendation and Order, and clear error review is therefore appropriate.
C. 	Defendant's IFP Application
"In order to proceed IFP in federal court, the court must be satisfied by [Defendant's]
affidavits that [he is] unable to pay the 'cost of these proceedings.'" Mulqueen v. Herkimer Cnty.
Child Prot. Servs., No. 6:22-CV-1301, 2023 WL 4931679, *1 (N.D.N.Y. Aug. 2, 2023) (citing 28
U.S.C. § 1915), order and report-recommendation adopted, 2024 WL 756833 (N.D.N.Y. Feb. 23,
2024). Magistrate Judge Dancks correctly referred to poverty standards to determine whether
Defendant's IFP application should be granted, see Dkt. No. 8 at 1-2, but comparison to the
standards becomes impossible when the movant does not identify his gross or take-home pay, see
Dkt. No. 2 at 1. Because "[t]he preferred practice is for the Magistrate first to consider the
[party's] economic status and decide whether to grant leave to proceed in forma pauperis[,]"
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), and because the Court is reviewing the IFP
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determination for clear error, the Court sees no reason to depart from Magistrate Judge Dancks's
conclusion that Defendant failed to demonstrate a need for IFP status. See Dkt. No. 8 at 8.
Though Defendant would typically be allowed to amend his application, for the reasons set out
below, this Court's lack of subject matter jurisdiction renders this issue moot.
D. 	Procedural Requirements for Removal
For a defendant to remove a civil action from state court into federal district court, the
movant must file a notice of removal "containing a short and plain statement of the grounds for
removal" within thirty days after receiving "a copy of the initial pleading setting forth the claim
for relief upon which such action or proceeding is based . . . ." 28 U.S.C. § 1446(a), (b)(1). As of
the filing of Defendant's notice of removal, he had not been served with a complaint. See Dkt.
No. 1; Dkt. No. 9 at 1. Because Defendant was not served with the necessary papers, he could not
have complied with the requirement to attach such papers to his notice of removal. Likewise, he
could not have followed this Court's Individual Rules and Practices, which require that all parties
moving pursuant to 28 U.S.C. § 1441 file and serve, within seven days after filing a notice of
removal, a signed statement setting forth the date the defendant received a copy of the state court
summons and complaint. Thus, Defendant's filing without previously receiving service of the
complaint is a procedural defect warranting dismissal.
E. 	Subject Matter Jurisdiction
Even if Defendant had been served with a complaint prior to initiating removal, the Court
must still remand the case because it lacks subject matter jurisdiction. "[A]ny civil action brought
in a State court of which the district courts . . . have original jurisdiction[] may be removed by the
defendant . . . to the district court of the United States for the district and division embracing the
place where such action is pending." 28 U.S.C. § 1441(a). To establish that removal is proper,
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the defendant must show that the action could have been filed in federal court based on either
diversity jurisdiction or federal question jurisdiction. See Caterpillar Inc. v. Williams, 482 U.S.
386, 391-92 (1987). "A district court must remand a case to state court '[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction.'" Vera v. Saks &
Co., 335 F.3d 109, 113 (2d Cir. 2003) (quoting 28 U.S.C. § 1447(c)).
1. 	Diversity Jurisdiction
Diversity jurisdiction requires complete diversity of the parties, which means that if any
plaintiff and any defendant are citizens of the same state, diversity jurisdiction is unavailable. See
Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460 (2d Cir. 1998). Because Defendant and
Plaintiff Visk both appear to be New York citizens (as Magistrate Judge Dancks determined
through Rensselaer County Surrogate's Court records), the Court agrees with Magistrate Judge
Dancks that complete diversity between the parties is lacking. See Dkt. No. 8 at 7 & n.6.
2. 	Federal Question Jurisdiction
"A federal question arises if a substantial, disputed question of federal law is presented on
the face of the well-pleaded complaint." Dumont v. United States, No. 3:13-CV-0873, 2013 WL
6240468, *7 (N.D.N.Y. Dec. 3, 2013) (citing City of Rome v. Verizon Commc'ns, Inc., 362 F.3d
168, 174 (2d Cir. 2004)). More specifically, as was explained in an earlier decision from this
District where Defendant was a party, "[f]ederal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded complaint." Dean v. Gaul, No. 1:22-CV-
1014, 2022 WL 17820154, *3 (N.D.N.Y. Sept. 30, 2022) (quoting Caterpillar Inc., 482 U.S. at
392), order and report-recommendation adopted, 2023 WL 1421454 (N.D.N.Y. Jan. 31, 2023);
see also Dkt. No. 8 at 6-7. As mentioned, Plaintiffs have not served a complaint upon Defendant.
Rather, Defendant makes factual allegations in the notice of removal, which is premature and
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cannot form the basis for federal question jurisdiction. Dkt. No. 1; see Holmes Grp., Inc. v.
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002).
Because the Court lacks subject matter jurisdiction over this case, the Court remands the
action to the Rensselaer County Surrogate's Court for further adjudication.
III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the reasons set forth above, the Court hereby
ORDERS that Magistrate Judge Dancks's Report-Recommendation and Order (Dkt. No.
8) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiffs' letter motion regarding the notice of removal (Dkt. No. 9) is
GRANTED insofar as it requests remand of this case; and the Court further
ORDERS that the case is REMANDED to the Rensselaer County Surrogate's Court
for further adjudication; and the Court further
ORDERS that Defendant’s motion for leave to proceed in forma pauperis is DENIED;
and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 8, 2025
Albany, New York
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