KENMORE ASSOCIATES, L.P., Housing & Service, Inc., Norris, McLaughlin & Marcus, Plaintiffs-Appellees, v. Brian BURKE, Defendant-Appellant, 367 F. App'x 168

SUMMARY ORDER Appellant Brian Burke, pro se, appeals from a judgment of the district court 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. “[Rjemoval 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.” 14C Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Joan E.

Steinman, 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, 123 S.Ct. 2058, 156 L.Ed.2d 1 (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(e) ... 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. .

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