Case 2:17-cv-06839-JFB-SIL Document 1 Filed 11/22/17 Page 1 of 4 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

WILLIAM J. OREILLY,
NOTICE OF REMOVAL
Plaintiff,
v. ECF Case

MICHAEL J. PANTER, Case No.

Defendant.

TO THE CLERK OF THE COURT:

PLEASE TAKE NOTICE that Defendant Michael J. Panter (Defendant), by and

through his undersigned counsel, hereby removes the above-captioned action from the Supreme

Court of the State of New York, County of Nassau, to the United States District Court for the

Eastern District of New York pursuant to 28 U.S.C. 1332, 1441, and 1446, and states as

follows:

1. On October 27, 2017, William J. OReilly (Plaintiff) filed a summons with

notice (the Summons) against Defendant in the Supreme Court of the State of New York,

County of Nassau. The Index # is 611541/2017. A true and correct copy of the Summons is

attached hereto as Exhibit A, which constitutes all pleadings and process in this action.

2. Defendant has not been served with a copy of the Summons.

3. According to the Summons, Plaintiff claims that Defendant is liable to him for

defamation and for intentional infliction of emotional distress, and Plaintiff seeks damages of at

least $5 million.

4. The Court has original jurisdiction over this action under 28 U.S.C.

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1332(a)(1), because this is an action between citizens of different states and the amount in

controversy exceeds $75,000.

5. No prior application for this relief has been made.

6. Less than thirty days have passed since Plaintiff filed the Summons on October

27, 2017. On information and belief, Plaintiff has not yet filed a complaint.

7. Although Defendant has not been served with the Summons, [s]ervice of

process upon a removing defendant is not a prerequisite to removal. La Russo v. St. Georges

University School of Medicine, 747 F.3d 90, 97 (2d Cir. 2014).

8. In this case, the Summons was disseminated to and published by media outlets,

and Plaintiff has spoken to the media and the public about the action. Defendant learned of the

Summons through Plaintiffs publicity.

9. Given that Defendant has seen the Summons, which contains sufficient

information to ascertain removability, Defendant is filing this Notice of Removal before the

thirty-day removal period could be considered to have lapsed pursuant to Rule 1446(b).

DIVERSITY OF CITIZENSHIP

10. The Summons alleges that Plaintiffs place of resident is Nassau County, New

York.

11. An allegation of residence made by the plaintiff in a summons is sufficient to

allow the defendant to allege citizenship for removal purposes. Gutierrez v. Home Depot USA,

Inc., No. 03 Civ. 3709, 2003 WL 22801808, at *1 (S.D.N.Y. Nov. 26, 2003); see also MBIA

Ins. Corp. v. Royal Bank of Canada, 706 F.Supp.2d 380 (S.D.N.Y. 2009).

12. The Summons in this case also lists Defendants address as a P.O. Box in New

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Jersey. Defendants residence and domicile is in the State of New Jersey. Defendant is a

citizen of New Jersey for purposes of 28 U.S.C. 1332, and of no other state or jurisdiction.

13. It is unknown to Defendant whether Plaintiff is a resident or domiciliary of any

other state or jurisdiction other than New York, and whether he is a citizen of any state or

jurisdiction other than New York for purposes of 28 U.S.C. 1332.

14. At the time of filing of the Summons and at the time of removal, Plaintiff is and

was a citizen of New York, and Defendant is and was a citizen of New Jersey; therefore the

parties are completely diverse pursuant to 28 U.S.C. 1332(a)(1).

AMOUNT IN CONTROVERSY

15. The Summons demands no less than $5 million in monetary damages.

16. As the Summons seeks $5 million, the amount in controversy exceeds $75,000,

exclusive of interest and costs, as required by 28 U.S.C. 1332(a).

CONCLUSION

17. Pursuant to 28 U.S.C. 1446(d), Defendant will promptly give written notice of

this Notice of Removal to Plaintiffs counsel of record and will file a copy of this Notice of

Removal with the clerk of the state court in which the New York State action is pending.

18. Pursuant to Local Rule 81.1, Plaintiff must file in the office of the Clerk a

statement of omitted information within twenty-one days of removal. Omitted information

includes Plaintiffs residence, domicile, and citizenship for purposes of 28 U.S.C. 1332.

WHEREFORE, Defendant requests that this civil action be removed from the Supreme

Court of the State of New York, County of Nassau, to the United States District Court for the

Eastern District of New York.

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Dated: New York, NY

November 21, 2017

Respectfully submitted,

MARK RISK, PC

/s/ Mark Risk______________

Mark Risk
60 East 42nd Street
47th Floor
New York, NY 10165
(212) 682-4100

THE BLOOM FIRM

Lisa Bloom
Anna Levine-Gronningsater*
20700 Ventura Boulevard
Suite 301
Woodland Hills, CA 91364
(818) 914-7397
(*pro hac vice forthcoming)

Attorneys for Defendant

TO:
Hoguet Newman Regal & Kenney, LLP
Fredric S. Newman, Andrew N. Bourne
10 East 40th Street, 35th Floor
New York, NY 10016