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Federal District Court Denies Request for Removal Based on the All Writs Acts

31 Jan 2012
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By Lewis Tesser, Partner, and Timothy Nolen, Associate, of Tesser, Ryan & Rochman, LLP

A case out of the United State District Court for the Southern District of New York demonstrates how Federal courts strictly apply the standards for removal from state court. The case involved issues of tort law, federal practice, statutory interpretation, jurisdiction and constitutional law.

The case, Kirkland v. Rolle, 2011 U.S. Dist. LEXIS 122682 (S.D.N.Y. October 14, 2011) concerned a plaintiff who brought suit against a defendant alleging defamation and libel. The defendant sought to remove (ie transfer) the action to Federal court, citing the All Writs Act and explaining that the defendant would be discouraged from testifying truthfully in a separate action if the case was not removed. Judge Holwell rejected this argument, noting that the All Writs Act did not create jurisdiction in the Federal courts, and there was no other basis for Federal jurisdiction.

At Tesser, Ryan & Rochman, LLP, our attorneys have years of experience practicing in Federal Courts and New York State. Our knowledge of Federal practice and jurisdiction allows us to identify tactical issues such as removal to Federal court and pursue them in our clients’ interests.

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About Post Author

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Lewis Tesser is a senior partner in the New York law firm of Tesser, Ryan & Rochman, LLP, concentrating his practice in litigation and mediation, representing licensed professionals and professional practices, administrative law and commercial law. Lew Tesser is Vice-President of the New York County Lawyers’ Association and Director of its Ethics Institute. Prior to private practice, Mr. Tesser was an Assistant United States Attorney in the Eastern District of New York. In that capacity, he represented various agencies of the United States government in litigation in the United States District Court and United States Court of Appeals. Mr. Tesser also served as a Judge Advocate in the United States Army where he prosecuted and defended criminal cases and was the chief legal advisor to the Commanding General of the U.S. Army War College, Carlisle, Pennsylvania. He also has served as an Arbitrator for the American Arbitration Association, New York City Civil Court, a Judge for the Environmental Control Board of the City of New York and a lecturer for various Bar Associations and New York area law schools. Mr. Tesser, who was admitted to practice in 1971, is a 1970 Honors graduate from the National Law Center, George Washington University, a Masters graduate from the Wharton Business School, University of Pennsylvania (l974) and a graduate of the Harvard Law School Program of Instruction for Lawyers. He is a past President of Congregation Sons of Israel, Nyack, NY. Publications and Speaking Engagements Editor-In-Chief, “The New York Rules of Professional Conduct Annotated”, Oxford University Press, New York, 2010. A complete list of Mr. Tesser’s speaking engagements and publications is available if you would like to learn more about Mr. Tesser’s work. Representative Cases In Re Zhang, 376 Fed. Appx. 104 (2d Cir. 2010) Continental Casualty Co. v. JBS Construct. Mgmt., 2010 U.S. Dist. LEXIS 85467 (S.D.N.Y. 2010)

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Tesser, Ryan, & Rochman Blog

At Tesser, Ryan, & Rochman we are committed to keeping current, former, and future clients up to date. Here on our blog we will have news regarding our firm, as well as business analysis, various cases, case studies, and legal findings for the benefit of our clients.