Attia v. Diarbi et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MINA ATTIA,
Plaintiff, 	REPORT AND
RECOMMENDATION
-against- 	25 CV 3883 (LDH)(RML)
SERGE DIARBI and SARKIS DIARBI,
Defendants.
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LEVY, United States Magistrate Judge:
Plaintiff Mina Attia moves pursuant to 28 U.S.C. § 1447(c) to remand this action
to Florida state court. By order dated August 19, 2025, the Honorable LaShann DeArcy Hall,
United States District Judge, referred plaintiff’s motion to me for report and recommendation.
For the reasons explained below, I respectfully recommend that the motion to remand be denied
and that this case be transferred to the United States District Court for the Southern District of
Florida.
B ACKGROUND
Plaintiff Mina Attia (“plaintiff”), a Florida resident, filed this case on June 5, 2025
in the Eleventh Judicial Circuit in Miami-Dade County, Florida, asserting claims for defamation
and unjust enrichment against defendants Serge Diarbi and Sarkis Diarbi (“defendants”) under
Florida state law. (See Complaint, dated June 5, 2025 (“Compl.”), Dkt. No. 1-1.) According to
the complaint, defendant Serge Diarbi resides in Georgia and defendant Sarkis Diarbi resides in
New York. (Id. ¶¶ 2, 3.) Defendants removed the case to this court on July 11, 2025. (See
Notice of Removal, dated July 11, 2025, Dkt. No. 1.) As of the date of removal, plaintiff had
served Serge Diarbi but not Sarkis Diarbi with the summons and complaint. (Id. ¶¶ 2, 4.)
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Nonetheless, both defendants filed an answer on July 25, 2025. (See Answer and Counterclaims,
dated July 25, 2025, Dkt. No. 4.)
Plaintiff moves to remand the case to Florida state court on the ground that
defendants improperly removed it to this court. (Plaintiff’s Motion to Remand, dated July 28,
2025, Dkt. No. 5; Plaintiff’s Memorandum of Law, dated July 28, 2025 (“Pl.’s Mem.”), Dkt. No.
6.) Defendants concede that this case was removed to the wrong federal district but argue that it
was properly removed to federal court pursuant to 28 U.S.C. § 1441 and that “[t]his inadvertent
error is curable per 28 U.S.C. § 1406” such that “remand of this case to state court is not the
appropriate remedy.” (Defendants-Counterclaim Plaintiffs’ Opposition to Plaintiff-Counterclaim
Defendant’s Motion to Remand to State Court, dated Aug. 6, 2025 (“Defs.’ Mem.”), Dkt. No. 8,
at 9.) Instead of remanding this case to Florida state court or transferring it to the United States
Court for the Southern District of Florida, they argue “this Court should retain jurisdiction over
[this] case in the interest of justice and convenience of the parties and witnesses.” (Id. at 12.)
DISCUSSION
A. Remand
“[R]emoval statutes are to be strictly construed against removal and all doubts
should be resolved in favor of remand.” Am. Standard, Inc. v. Oakfabco, Inc., 498 F. Supp. 2d
711, 715 (S.D.N.Y. 2007) (citations omitted); see also Purdue Pharma L.P. v. Kentucky, 704 F.3d
208, 213 (2d Cir. 2013) (“federal courts construe the removal statute narrowly, resolving any
doubts against removability”) (quoting Lupo v. Hum. Affs. Int’l, Inc., 28 F.3d 269, 274 (2d Cir.
1994)). Therefore, on a motion to remand, “the [removing] defendant bears the burden of
demonstrating the propriety of removal.” Cal. Pub. Emps. Ret. Sys. v. WorldCom, Inc., 368 F.3d
86, 100 (2d Cir. 2004) (citation omitted); see also Wilds v. United Parcel Serv., Inc., 262 F. Supp.
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2d 163, 171 (S.D.N.Y. 2003) (“On a motion to remand, the party seeking to sustain the removal,
not the party seeking remand, bears the burden of demonstrating that removal was proper.”)
(quoting Hodges v. Demchuk, 866 F. Supp. 730, 732 (S.D.N.Y. 1994)).
Pursuant to 28 U.S.C. § 1441(a):
Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed by
the defendant or the defendants, 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) (emphasis added). In this case, the federal district “embracing the place”
where the state court action was pending is the Southern District of Florida. Thus, this case was
improperly removed to this district, as defendants admit. See J.S. Held, LLC v. Malesardi, No.
25 CV 4053, 2025 WL 2108550, at *1 (E.D.N.Y. July 28, 2025) (explaining that “as the original
case was brought in the Superior Court of California, County of San Francisco, the correct
district within which this case should have been removed to is the Northern District of
California”); State of New Jersey v. Jeter, No. 15 CV 1562, 2015 WL 12564204, at *1 (E.D.N.Y.
Mar. 27, 2015), report and recommendation adopted sub nom. New Jersey v. Jeter, 2015 WL
12564202 (E.D.N.Y. July 17, 2015) (granting motion for remand and explaining that “even if
removal of [plaintiff’s] proceeding were proper, removal would be ‘to the district court of the
United States for the district and division embracing the place where such action is pending,’”
which was “not within the Eastern District of New York.”) (quoting 28 U.S.C. § 1441(a));
Jackson v. City of New York, No. 07 CV 519, 2007 WL 1871511, at *1 (E.D.N.Y. June 28, 2007)
(“Plaintiff originally filed this case in New York County, which is in the Southern District of
New York. . . . Defendant, therefore, should have removed this case to the Southern District of
New York.”).
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Where the federal court has subject matter jurisdiction, it is not necessary to
remand the case to state court; rather, “[d]efendants’ removal of the action to the wrong district
[i]s a defect ‘akin to an improper venue situation’ which may be remedied under § 1406(a) by
transferring the action to the proper district.” Newco Cap. Grp. VI LLC v. SDLA Courier Serv.,
Inc., No. 24 CV 6553, 2025 WL 2146721, at *3 (W.D.N.Y. July 29, 2025) (collecting cases); see
also ACD Direct, Inc. v. Pacifica Found., Inc., No. 24 CV 1040, 2024 WL 2001179, at *1
(E.D.N.Y. Apr. 16, 2024) (“[T]he remedy for an inappropriate removal under Section 1441(a) is
transfer to the correct federal court.” (quoting Moore v. Moore, No. 23 CV 7334, 2023 WL
7184053, at *2 (E.D.N.Y. Nov. 1, 2023)).
Defendants removed the present action under 28 U.S.C. § 1441, which allows for
removal based on diversity of citizenship under 28 U.S.C. § 1332. Section 1332(a)(1) states, in
relevant part, that “[t]he district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of
different States.” Section 1332 “requires ‘complete diversity,’ i.e. all plaintiffs must be citizens
of states diverse from those of all defendants.” Pa. Pub. Sch. Emps. Ret. Sys. v. Morgan Stanley
& Co., 772 F.3d 111, 117–18 (2d Cir. 2014) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 553 (2005)). Plaintiff does not dispute that the district court embracing the place
where the action was originally filed would have subject matter jurisdiction based on diversity of
citizenship. (See Pl.’s Mem.; Plaintiff’s Reply Memorandum of Law in Further Support of
Motion to Remand to State Court, dated Aug. 11, 2025, Dkt. No. 10.) Thus, transfer to the
appropriate federal district is the proper remedy. ACD Direct, Inc., 2024 WL 2001179, at *1
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(transferring case to correct federal district where party opposing removal did not argue that
subject matter jurisdiction would be lacking in the other district).1
Defendants argue that this court should retain jurisdiction since the Eastern
District of New York “is the most appropriate venue to hear this case, and the related
counterclaims,” under 28 U.S.C. § 1404. (Defs.’ Mem. at 9); see 28 U.S.C. § 1404(a) (“For the
convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought or to any district or
division to which all parties have consented.”) Section 1404 “is purposed to prevent waste of
time, energy and money and to protect litigants, witnesses and the public against unnecessary
inconvenience and expense.” Indian Harbor Ins. Co. v. Factory Mut. Ins. Co., 419 F. Supp. 2d
395, 400–01 (S.D.N.Y. 2005) (internal citations and quotations omitted). Courts have “broad
discretion in making determinations of convenience under Section 1404(a) and notions of
convenience and fairness are considered on a case-by-case basis.” Capitol Recs., LLC v.
VideoEgg, Inc., 611 F. Supp. 2d 349, 365 (S.D.N.Y. 2009) (quoting D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006)). Defendants note that one defendant, Sarkis Diarbi,
resides in this district with his wife, and the other, their son Serge Diarbi, “is a resident of
another state” but “normally visits his parents throughout the year” and “consents to personal
jurisdiction in this district.” (Defs.’ Mem. at 10.) They also contend that “a substantial part of
the events or omissions giving rise to the claim occurred” in this judicial district since plaintiff
1 In addition, the complaint alleges that “[p]laintiff has suffered financial harm in the amount of
$75,000.00,” plus damages for “injury to [p]laintiff’s personal and professional reputation,
shame, mortification, and hurt feelings, and other compensatory damages in an amount to be
determined by the trier of fact.” (Compl. ¶¶ 32, 40.)
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visited Sarkis Diarbi in Staten Island and Brooklyn twice in 2020 to discuss and promote the
investment proposal that forms the basis of the allegations in the complaint. (Id.)
To justify transfer of venue, the moving party must show that (1) the action is one
that could have been brought in the district to which the movant wants it transferred, and (2) the
transfer would be appropriate based on convenience of parties and witnesses, and would be in the
interests of justice. Posven, C.A. v. Liberty Mut. Ins. Co., 303 F. Supp. 2d 391, 401 (S.D.N.Y.
2004). Under Section 1404(a), courts generally consider the following factors in determining
whether transfer is appropriate: (1) convenience of witnesses; (2) convenience of parties; (3)
location of relevant documents and access to sources; (4) “locus” of operative facts; (5) ability to
compel unwilling witnesses; (6) relative means of each party; (7) familiarity of each district with
the governing law; (8) weight given to the plaintiff’s choice of forum; and (9) judicial economy
and the interests of justice. New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d
102, 112 (2d Cir. 2010); see also Herbert Ltd. P’ship v. Elec. Arts Inc., 325 F. Supp. 2d 282, 285-
86 (S.D.N.Y. 2004). “[T]he convenience of both party and nonparty witnesses is probably
considered the single most important factor in the analysis of whether a transfer should be
granted.” Howard v. Four Seasons Hotels, No. 96 CV 4587, 1997 WL 107633, at *2 (S.D.N.Y.
Mar. 6, 1997) (quoting Frasca v. Yaw, 787 F. Supp. 327, 331 (E.D.N.Y. 1992)).
28 U.S.C. § 1391(b) states that a civil action may be brought in “a judicial district
in which any defendant resides, if all defendants are residents of the State in which the district is
located” or “a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is situated.”
Id. Defendants do not argue that venue is improper in the Southern District of Florida, merely
that they would prefer to litigate in this district because it is more convenient and less expensive
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for them and the witnesses they expect to call. (See Defs.’ Mem. at 11–15.) Generally, however,
courts give significant deference to a plaintiff’s choice of forum. Iragorri v. United Techs. Corp.,
274 F.3d 65, 70 (2d Cir. 2001). “[U]nless the balance is strongly in favor of the defendant[s], the
plaintiff’s choice of forum should rarely be disturbed.” Id. (citation omitted).
Plaintiff is a Florida resident and chose to commence this case in Florida.
According to the allegations in the complaint, “[t]he false and defamatory statements at issue
were published in Miami-Dade County to third parties located [t]here, and the financial
transactions and agreements at issue were made and carried out in [Miami-Dade] County [in
Florida.] (Compl. ¶ 5.) Since the district court that embraces this matter is the Southern District
of Florida and removal to the Eastern District of New York was improper in the first instance, I
respectfully recommend that the case not be remanded to Florida state court and that the Clerk of
the Court be directed to transfer this action to the United States District Court for the Southern
District of Florida.
B. Sanctions
Plaintiff requests an award of costs and attorney’s fees incurred “as a direct result
of [d]efendants’ improper removal, pursuant to 28 U.S.C. § 1447(c).” (Pl.’s Mem. at 5.) Section
1447(c) states that “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded” and “[a]n order remanding the case may
require payment of just costs and any actual expenses, including attorney fees, incurred as a
result of the removal.” Since I am recommending transfer to the appropriate federal district court
and not remand based on a lack of subject matter jurisdiction, I respectfully recommend that this
request be denied.
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CONCLUSION
For the foregoing reasons, I respectfully recommend that plaintiff’s motion to
remand this case to Florida state court be denied and that this case be transferred to the United
States District Court for the Southern District of Florida. Any objections to this report and
recommendation must be filed with the Clerk of the Court within fourteen (14) days. Failure to
file objections within the specified time waives the right to appeal the district court’s order. See
28 U.S.C. § 636(b)(1); F ED. R. C IV. P. 72, 6(a), 6(d).
Respectfully submitted,
_________________________
ROBERT M. LEVY
United States Magistrate Judge
Dated: Brooklyn, New York
November 4, 2025
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