Opinion
01-CV-1087.
December 12, 2001
TISDELL, MOORE WALTER, OF COUNSEL, FRANCIS I. WALTER, ESQ., Attorneys for Plaintiff, Syracuse, NY.
DEVORSETZ, STINZIANO, GILBERTI, LAUREL J. EVELEIGH, ESQ., HEINTZ SMITH, Attorneys for Defendant, Syracuse, NY.
Background
This action was commenced with the filing of a summons and complaint dated June 12, 2001, in the New York State Supreme Court, County of Onondaga. The complaint alleged civil rights violations under state law, New York Executive Law § 296, and federal law, Title VII, 42 U.S.C. § 2000e, et seq. On July 3, 2001, defendant, following the procedure set forth in 46 U.S.C. § 1446 and Rule 11 of the Federal Rules of Civil Procedure for so doing, removed the case to the United States District Court, Northern District of New York, 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, to the district court of the United States for the district and division embracing the place where the action is brought."
Although plaintiff has not filed a motion to remand this action to the state court, this court is obliged to ascertain, sua sponte, if it has the subject matter jurisdiction in this case, and, therefore, whether it was appropriately removed. Padro v. International Institute of the Americas, 597 F. Supp. 241, 242 (D.P.R. 1984). 28 U.S.C. § 1441(b) permits removal of cases presenting "a claim of right arising under the Constitution, treaties or laws of the United States. . . ." 28 U.S.C. § 1447(c) provides in relevant part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." It is well-settled that where the court has federal jurisdiction over an action brought under 28 U.S.C. § 1331 and all the federal claims are eliminated prior to trial, a federal court should decline to exercise jurisdiction. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988): In DiLaura v. Power Authority of New York, 982 F.2d 73, 80 (2d Cir. 1992).
The only federal claims set forth in plaintiff's state court complaint alleged violations of Title VII of the Civil Rights Act as codified in 42 U.S.C. § 2000-e-2, in the third cause of action at paragraph 29, in the fourth cause of action at paragraph 37, and in the fifth cause of action at paragraph 41. Hence, the complaints raised claims which arose under federal law, and removal was proper.
On August 2, 2001, plaintiff filed an amended complaint in the U.S. District Court, Northern District of New York. Reviewing the docket in this case, it does not appear that defendant has served any responsive pleading to date. Plaintiff, thus, may amend her complaint as of right pursuant to Rule 15(c) of the Federal Rules of Civil Procedure. Integrated Technology Development, Inc. v. Rosenthal, 103 F. Supp.2d 574, 578 (E.D.N.Y. 2000). The amended complaint plaintiff filed in this court eliminated all the above referenced federal law claims from the action and only pendent state law claims remain.
In DiLaura, the Second Circuit acknowledged that once all federal claims are removed, the usual course for the district court to take regarding the remaining state law claims is to decline to exercise pendent jurisdiction on the basis of judicial economy, convenience, fairness, and comity, 982 F.2d at 80. In the instant case, the balance of these factors weighs in favor of remanding plaintiff's claims to state court. This lawsuit is in its very early stages. The parties have not appeared for a scheduling conference, and the court has not ruled on any motions. Defendant has not even answered plaintiff's complaint. "When the single federal law claim in the action [is] eliminated at an early stage of the litigation, the District court [has] a powerful reason to choose not to continue to exercise jurisdiction." Carnegie Mellon, 484 U.S. at 351, 108 S.Ct. at 619.
Accordingly, it is ORDERED that this case be and is REMANDED to the State of New York Supreme Court, Onondaga County, and defendant's motion to dismiss the complaint and request for a prohibition order is DENIED as moot.
IT IS SO ORDERED.