Any advice would be appreciated for describing how a plaintiff in a stayed New York Civil Court case can have that case removed to the U.S. District Court for the Southern District of New York following the civil court judge's decision to stay the case and compel arbitration that the SDNY has previously deemed unenforceable because of cost-prohibitive reasons (Sutherland v. Ernst & Young LLP). Although removals typically are available to defendants and not plaintiffs, can CPLR 602 and supplemental jurisdiction be leveraged to consolidate the civil case with a related federal case that would add a co-defendant and additional causes of action? The civil court judge baselessly claimed that it's well-settled that courts must enforce contractual arbitration provisions.
So, in a nutshell, you have generally described facts and circumstances regarding a case stuck in a New York Civil Court seemingly bound by "bad" case law precedent, while removal of the state court action to a federal district court might change this equation, for you, for the better.
You are, of course, correct that, as per the rules, generally speaking, only a defendant can exercise the right of removal from a state court to a federal court. Here, you raised an interesting argument centered around Rule 602 under its "consolidation" provisions. This argument has indeed been attempted before, and the federal courts remain quite steadfast in strictly enforcing the CPLR, thus likely negating such an argument.
By way of brief discussion, in Odyssey Contracting (2008) before the New York Supreme Court, the court looked at a similar argument (amongst many other arguments, of course) under the same strict interpretation the federal courts approach the rules of the courts. There, the defendant in the state court action chose not to pursue a counterclaim, which claimed "federal question" but then filed a federal case to pursue its "federal claims" even thought defendant already "appeared" in the state court action and then sought to "consolidate" the actions in the federal court based upon an argument that the federal question was the prior and/or main action in the state court for purposes of consolation info the federal court. A novel argument no doubt, but a flawed one in many respects. The consolidation rule, construed strictly, and the rules as a whole simply based on any reasonable reading of their text on their face, simply did not provide the "loop hole" work-around restricting removal only to the plaintiff.
Also look at Rite-Line Transportation (2013) in the federal district court for the Southern District of New York. The court again looked at 602, but again cited back to, and ultimately relied upon the "the fundamental principle that federal courts are courts of limited juridiction," referring to a defendant's right to removal based on subject matter jurisdiction or diversity jurisdiction. The court again noted Congressional intent to restrict federal court jurisdiction. If didn't work there either.
Novel arguments are what we lawyers due, so no door is technically ever "completely shut" (well most), but the end-run around proposition to get into federal court is not likely to work. You should consult with an experienced attorney if you do not already have one given that you are already moving forward with a state court action that appears somewhat complicated given you are already raising interesting arguments out of the Federal Civil rules. Peruse this site to locate many, many excellent attorneys.
All the best, BPG.
I agree with Mr. Galligan and will add that trying to pull such an end-run to get into federal court certainly won't work with you learning the law as you go. Consult with experienced trial counsel with federal court practice experience.
Litigation in federal district court is not a DIY project. You need to employ counsel to litigate this case. You could dismiss the case without prejudice in the state court, and refile the case in federal court. You must allege federal question jurisdiction to keep the case in federal court, though.
