Opinion
No. 99 Civ. 9657 (SAS).
August 30, 2004
Daniel P. Smulewicz, Esq., New York, NY, for Plaintiffs.
David M. Lederkramer, Esq., Karen E. Clarke, Esq., Proskauer Rose L.L.P., New York, NY, for Defendants.
OPINION AND ORDER
Ammon Fisher brings this action individually and on behalf of his companies Elgin Metal and Marble Maintenance, Elgin Restoration, and Elgin Waterproofing against, inter alia, Larry A. Silverstein, Silverstein Properties, Inc. ("SPI"), Silverstein-7 World Trade Company, 7 World Trade Company, and Joseph P. Ritorto (collectively "defendants"). Plaintiffs, who are all in the construction business, allege that defendants tortiously interfered with their existing contracts and prospective business relations. Plaintiffs also assert a cause of action for prima facie tort. Defendants now move for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court must remand this case to state court for lack of federal subject matter jurisdiction.
Throughout this Opinion, I refer to Elgin Metal and Marble Maintenance, Elgin Restoration, and Elgin Waterproofing collectively as "Elgin," while I refer to Elgin and Fisher collectively as "plaintiffs."
Plaintiffs have recently settled their dispute with I.B.G. Industrie-Beteiligungs GMBH Co. K.G., Kemper System GMBH Co., K.G., and Kemper Systems ("Kemper U.S.A.").
I. BACKGROUND
A. Parties and Their Relationships
Defendant SPI is a real estate management company that until September 11, 2001, managed 7 World Trade Center ("7 WTC"). Chi Chu is SPI's Vice President of Operations, Joseph Ritorto was SPI's Senior Executive Vice President and Chief Operating Officer until May 2001, and Cynthia Rice, now deceased, was SPI's General Manager of 7 WTC until August 1, 1997.
See Memorandum of Law in Support of Silverstein Defendants' Motion for Summary Judgment ("Def. Mem.") at 5.
See Deposition Transcript of Joseph Ritorto ("Ritorto Dep."), attached as unnumbered exhibit to the Affidavit of Daniel P. Smulewicz, plaintiffs' counsel, in Opposition to Defendants' Motion for Summary Judgment ("Smulewicz Aff."), at 595.
See Def. Mem. at 5.
See Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Opp.") at 3.
Sometime in early January 1997, Rice became aware that Chu had been promoted to Director of Operations, the position Rice sought. After SPI declined to interview Rice for that position, Rice met with Ritorto on January 20, 1997, at which time Rice suggested that the decision was motivated by gender bias.
See Deposition Transcript of Cynthia Rice ("Rice Dep."), Ex. 1 to the Affidavit of David M. Lederkramer, defendants' counsel, in Support of the Silverstein Defendants' Motion for Summary Judgment ("Lederkramer Aff."), at 775.
See id. at 797 (stating that the failure to promote her was "a woman thing").
Rice was married to plaintiff Fisher, the owner of Elgin. SPI had retained Elgin to perform maintenance at 7 WTC on at least five separate occasions beginning in 1991, the year Fisher purchased Elgin. The scope of Elgin's maintenance at 7 WTC included installation of a proprietary waterproofing system called Kemperol, which is manufactured and owned by Kemper U.S.A.
See Def. Mem. at 1.
See Deposition of Ammon Fisher ("Fisher Dep."), Ex. 1 to Lederkramer Aff., at 318, 1054-55; 4/15/91 Letter from Fisher to Jim Halpin, Senior Property Manager at Silverstein Properties, Ex. 5 to Lederkramer Aff.; 5/24/93 Letter from Fisher to Rice, Ex. 5 to Lederkramer Aff.; 7/21/94 Letter from Fisher to Ritorto, Ex. 5 to Lederkramer Aff.; 9/6/94 Letter from Fisher to Angelo Croce, Vice President of Silverstein Properties, Ex. 5 to Lederkramer Aff.
See Pl. Opp. at 2.
Lehrer McGovern Bovis, Inc. ("Lehrer McGovern") is a non-party, general contractor that had a claim against plaintiffs arising out of a construction project at 888, 7th Avenue in New York ("7th Avenue project"). The 7th Avenue project was secured by a sizable bond guaranteed by Rice. Plaintiffs allege that defendants induced Lehrer McGovern to collect on the bond by awarding it a contract for a larger construction project on 42nd Street in New York ("42nd Street project").
See Compl. ¶¶ 42-50.
B. Procedural Background
Defendants were served with the complaint in this action on August 13, 1999 and promptly removed the case to federal court pursuant to section 1441(b) of Title 28. Defendants asserted that plaintiffs' third cause of action arose under the Constitution and laws of the United States because plaintiffs alleged that defendants had acted "to deprive plaintiff Fisher of his civil rights under the federal and New York State Constitutions to associate and speak freely with his wife, Cynthia Rice and to support her in the assertion of her rights under . . . antidiscrimination laws." The theory behind Fisher's claim was that defendants tried to ruin him financially so that he would be unable to support his wife in asserting her discrimination claims against defendants, and that defendants' actions were "interwoven" with governmental authorities.
Notice of Removal ¶ 2. Plaintiffs' third cause of action states: "Defendants individually, and conspiring together, have acted egregiously and with malice using governmental instrumentalities and agencies, to wit the Port of New York/New Jersey Authority [sic] and the federal and state instrumentalities providing funding for the 42nd Street project, to deprive Plaintiff Fisher of his civil rights under the federal and New York State Constitutions to associate and speak freely with his wife, Cynthia Rice and to support her in the assertion of her rights under the New York State and New York City and federal antidiscrimination laws." Compl. ¶ 65.
See Compl. ¶ 58.
The complaint alleged four bases of state action: (1) the Port Authority of New York and New Jersey ("Port Authority") owns 7 WTC; (2) the Port Authority retains substantial control of defendants under the terms of the lease; (3) the Port Authority was used as an instrument of defendants' allegedly retaliatory conduct; and (4) federal and state authorities would be funding the 42nd Street project.
See id. ¶ 59 ("The acts of Defendants are intricately interwoven with governmental authorities and actions. The World Trade Center is owned and controlled by the Port of New York/New Jersey Authority [sic] (`Port Authority'), which is a governmental authority created by act of Congress and is an instrumentality of the states of New York and New Jersey. On information and belief the lease of 7 World Trade Center from the Port Authority to Silverstein retains substantial amounts of control to the Port Authority and contains extensive antidiscrimination provisions. On information and belief River Place I and II, the $380,000,000 construction project on 42nd Street in New York City is to be built primarily with a combination of federal and state loans, therefore the funds used to put economic pressure on Lehrer McGovern, Kemper, and Providence Washington [the bonding company] will be from governmental agencies.").
Plaintiffs did not move to remand, and the Court accepted jurisdiction. This case was reassigned to me on July 23, 2003, when the previously assigned judge retired. Plaintiffs voluntarily dismissed their third cause of action in May 2004. Because the dismissed cause of action was the only purported federal claim, the Court must consider, as a threshold matter, whether to exercise supplemental jurisdiction over the remaining state law claims.
II. LEGAL STANDARD
A. Federal Question Jurisdiction
"While the district court may, at its discretion, exercise supplemental jurisdiction over state law claims over which it had original jurisdiction, it cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction." A case falls within the original "federal question" jurisdiction of the United States district courts if it "aris[es] under the Constitution, laws, or treaties of the United States." A case "arises under" federal law when federal law creates the cause of action, or "where the vindication of a right under state law necessarily turn[s] upon some construction of federal law."
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
28 U.S.C. § 1331.
See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986).
Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983).
It is well established that to determine whether a claim arises under federal law, courts examine the "well pleaded" allegations of the complaint and ignore potential defenses. However, "parties cannot confer subject matter jurisdiction where the Constitution and Congress have not." Therefore, the court must assure itself that it has federal subject matter jurisdiction before deciding any case. "Simply raising a federal issue in a complaint will not automatically confer federal question jurisdiction. Rather, we ask `whether the cause of action is so patently without merit as to justify . . . the court's dismissal for want of jurisdiction.'" Where the complaint is drawn to seek recovery under federal law, the district court must entertain the suit unless the alleged claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous."
See Merrell, 478 U.S. at 808; Carlson v. Principal Fin. Group, 320 F.3d 301, 306 (2d Cir. 2003); Nowak, 81 F.3d at 1189.
Perpetual Secs., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002) (quoting Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001)).
Id. at 137 (quoting Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 70 (1978)).
Nowak, 81 F.3d at 1188 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)).
"If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." "Out of respect for the independence of state courts, and in order to control the federal docket, `federal courts construe the removal statute narrowly, resolving any doubts against removability.'" B. Right of Intimate Association and the State Action Requirement
Kings Choice Neckwear, Inc. v. DHL Airways, Inc., No. 02 Civ. 9580, 2003 WL 22283814, at *2 (S.D.N.Y. Oct. 2, 2003) (quoting Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991)). See also Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 31 (2002).
The Supreme Court has recognized a First Amendment right to associate with others in intimate relationships. "[C]laims that some adverse state action burdens an individual's marital relationship have been assessed under a First Amendment doctrine of intimate marital association." Thus, a spouse's claim that adverse action was taken solely against that spouse in retaliation for conduct of the other spouse is analyzed as an intimate association claim. The right of intimate association is made applicable to the states through the Fourteenth Amendment.
See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
Adler v. Pataki, 185 F.3d 35, 43 (2d Cir. 1999).
See id. at 44.
See U.S. Const. amend XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property without due process of law."). See also Williams v. Rhodes, 393 U.S. 23, 38 (1968) ( First Amendment claim applicable to states through the Fourteenth Amendment).
It is well established that the protections of the Fourteenth Amendment extend only to state action and not private conduct abridging individual rights. "`Careful adherence to the `state action' requirement preserves an area of individual freedom by limiting the reach of federal law' and avoids the imposition of responsibility on a State for conduct it could not control." Thus, section 1983 of Title 42, the statutory remedy for constitutional violations, specifies that the conduct at issue must have occurred under color of state law.
See Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) ("That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.") (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)).
National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Lugar Edmonson Oil Co., Inc., 457 U.S. 922, 936-37 (1982)).
"Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ."
For private action to be deemed state action, "the conduct allegedly causing the deprivation of the federal right [must] be fairly attributable to the State." "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." "Faithful adherence to the `state action' requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff's complaint."
Lugar, 457 U.S. at 936.
Blum, 457 U.S. at 1004 (emphasis in original).
Id. at 1003. See also Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 313 (2d Cir. 2003) (when analyzing allegations of state action, the court begins "by identifying the specific conduct of which the plaintiff complains").
"What is fairly attributable [to state action] is a matter of normative judgment. . . . No one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient. . . ." However, some factors that can bear on such attribution include: (1) the state exercises coercive power; (2) the state provides significant encouragement, either overt or covert; (3) private actors operate as willful participants in joint activity with the state or its agents; (4) the private entity is controlled by an agency of the state; (5) the private entity has been delegated a public function by the state; or (6) the private entity is entwined with governmental policies or the government is entwined in its management or control.
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295-96 (2001).
See id. at 297.
III. DISCUSSION
Defendants principally argue that this Court has subject matter jurisdiction because the complaint sufficiently alleges the entwinement of defendants with governmental authorities in accordance with the Supreme Court's decision in Brentwood Academy v. Tennessee Secondary School Athletic Association. According to defendants, plaintiffs pleaded a Brentwood claim by asserting that defendants were state actors due to the "intricately interwoven" activity of the Port Authority and defendants' operations. Finally, defendants assert that plaintiffs' allegations were not so frivolous as to rob the Court of jurisdiction because Brentwood "lends some support, however quixotic, to litigants like the plaintiffs in this case."
531 U.S. 288. See Silverstein Defendants' Supplemental Memorandum of Law in Further Support of Their Motion for Summary Judgment and in Support of the Court's Exercise of Subject Matter Jurisdiction ("Def. Supp. Mem.") at 1-4.
See Def. Supp. Mem. at 3. Plaintiffs allege that defendants are in the business of, inter alia, managing 7 WTC. See Compl. ¶¶ 17-19.
Def. Supp. Mem. at 10.
In Brentwood Academy, a private high school sued an interscholastic athletic association to prevent enforcement of a rule prohibiting the use of undue influence in the recruitment of student-athletes. The issue was whether the association could be regarded as engaging in state action when it enforced its rules against member schools. The Supreme Court held that the association's regulatory activity was state action because of "the pervasive entwinement of state school officials in the structure of the association" and because there was "no offsetting reason to see the association's acts in any other way." In reaching its decision, the Court noted, inter alia, that eighty-four percent of the association's members were public schools, "represented by their officials acting in their official capacity to provide an integral element of secondary public schooling"; the association set binding athletic standards for public schools; State Board of Education members served on the association's committees as non-voting members; and the association's employees were eligible for state retirement benefits. Under those circumstances, the Court found that "the ostensibly private organization ought to be charged with a public character and judged by constitutional standards; entwinement to the degree shown here require[d] it."
531 U.S. at 291 (emphasis added).
Id. at 300.
See id. at 299-301.
Id. at 301.
Contrary to defendants' assertions, Brentwood cannot be fairly read to mean that a bald assertion of entwinement is enough to confer federal jurisdiction. Rather, the contacts between the state and private actor must be such that they create a threshold level of entanglement so that the private action can be fairly attributed to the state. While the pleading standard is a liberal one, naked assertions and conclusions of law will not suffice.
See id. at 295 ("[S]tate action may be found if, and only if, there is a `close nexus between the State and the challenged action' that seemingly private behavior may be fairly treated as that of the State itself.'") (quoting Jackson, 419 U.S. at 349); Tancredi, 316 F.3d at 312 ("In order to satisfy the state action requirements where the defendant is a private entity, the alleged constitutional conduct must be `fairly attributable' to the state."). See also Doe v. Harrison, 254 F. Supp. 2d 338, 343 (S.D.N.Y. 2003) ("[T]he [ Brentwood] decision is simply a straightfoward application of the close nexus test.").
See Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1992) ("The mere allegation of a substantive due process violation is not sufficient to raise a `colorable' constitutional claim to provide subject matter jurisdiction. `If the mere allegation of denial of due process can suffice to establish subject-matter jurisdiction, then every decision of the Secretary [of Health and Human Services] would be [judicially] reviewable by the inclusion of the [magic] words' `arbitrary' or `capricious'") (alteration in original); Haley v. Childers, 314 F.2d 610, 613 (8th Cir. 1963) ("A mere conclusion of law or, as here, a naked conclusory allegation that a bargaining contract violates a federal statute, has no efficacy and is wholly insufficient to confer jurisdiction upon the federal court where such allegation is unwarranted by the asserted facts."); Sanderson v. Blue Cross and Blue Shield of Ala., 954 F. Supp. 237, 240 (M.D. Ala. 1996) ("[T]he mere fact that ERISA is mentioned in a pleading is insufficient to provide federal subject matter jurisdiction.").
This Court lacks subject matter jurisdiction because plaintiff's complaint — on its face — does not allege state action sufficient to satisfy the Brentwood entwinement standard. In this case, the complaint is completely silent as to any indicia of pervasive entwinement. Plaintiffs have made no allegation that the Port Authority was involved in the day-to-day operations of defendants, nor that defendants played any sort of role in the Port Authority. Instead, the complaint bases its conclusory statement of "intricately interwoven" activities on the fact that the Port Authority owns and controls 7 WTC. It goes without saying that every lease retains at least some control in the landlord. However, that does not mean that the landlord and tenant are pervasively entwined in each other's affairs. Plaintiffs' allegations thus fall short of the pervasive interrelationship envisioned by Brentwood.
See Benn v. Universal Health Sys., Inc., 371 F.3d 165, 173 (3d Cir. 2004) (rejecting entwinement theory because plaintiffs had not alleged that the state was entwined with defendants "in any comparable sense" to the defendants in Brentwood); Logiodice v. Trustees of Maine Cent. Inst., 296 F.3d 22, 28 (1st Cir. 2002) (no entwinement because defendant's day-to-day operations were managed by private citizens); Tomaiolo v. Mallinoff, 281 F.3d 1, 9 (1st Cir. 2002) (the "classic indicia of entwinement, much less pervasive entwinement" were missing because there was no evidence that the state supported the private decision taken, that there was an allocation of traditional state functions to private entities, or that the government was the real actor behind a private facade); Szekeres v. Schaeffer, 304 F. Supp. 2d 296, 307 (D. Conn. 2004) (no pervasive entwinement because there was no indication that the state was entwined in private entity's management); Koerner v. The Garden Dist. Ass'n, No. Civ. A 00-2206, 2002 WL 31886728, at *7 (E.D. La. Dec. 23, 2002) (no entwinement because plaintiff did not allege that the state exercised coercive power or provided significant encouragement).
It is also worth noting that although this case is in the summary judgment phase, no one has produced further facts demonstrating entwinement between defendants and the State.
See Lattibeaudierre v. AMR Servs. Corp., No. CV 95 5269, 1996 WL 518076, at *3 (E.D.N.Y. Sept. 3, 1996) (airline baggage handling company that leased space from JFK airport was not state actor); Atkinson v. B.C.C. Assocs., Inc., 829 F. Supp. 637, 644-46 (S.D.N.Y. 1993) (company retained by State to collect bridge and tunnel toll receipts was not a state actor even though it operated on state-owned land and used state equipment).
Defendants' argument fares no better with respect to the federal and state instrumentalities allegedly funding the 42nd Street project. The complaint alleges that "the funds used to put economic pressure on [certain non-parties] will be from governmental agencies." Speculative future conduct by the government cannot be deemed entwinement, much less pervasive entwinement, for purposes of state action. Moreover, even if plaintiffs had asserted present funding, there is no support for the theory that mere funding is enough to trigger constitutional protections.
Compl. ¶ 59 (emphasis added).
See Blum, 457 U.S. at 1011 (rejecting argument that state subsidization of operating and capital costs of facilities and payment of medical expenses of more than ninety percent of patients in facility constituted state action); Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 552 (2d Cir. 2001) ("In the absence of such a [close] nexus [between the State and the regulated entity], a finding of state action may not be premised on the private entity's creation, funding, licensing, or regulation by the government."); Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996) ("Extensive regulation and public funding, either alone or taken together, will not transform a private actor into a state actor. . . ."); Szekeres, 304 F. Supp. 2d at 307 ("[T]he Supreme Court has repeatedly made clear that government funding of a private entity, no matter how extensive, is insufficient in and of itself to establish state action."); Atkinson, 829 F. Supp. at 643 (receipt of state subsidies insufficient to justify a conclusion of state control); Alcena v. Raine, 692 F. Supp. 261, 266 (S.D.N.Y. 1988) ("Plaintiff's reliance on the fact that the institutional defendants are regulated by the state and receive substantial public funding is, without more, woefully insufficient to impute state action to the conduct of the defendants.").
Even assuming arguendo that the complaint had alleged greater connections between defendants and the State, the actions complained of cannot be "fairly attributed" to either the Port Authority or government authorities funding the 42nd Street project. The complaint states that "[ d] efendants . . . have acted egregiously and with malice using governmental instrumentalities and agencies . . . to deprive Plaintiff Fisher of his civil rights. . . ." Thus, on it face, the complaint attributes responsibility to defendants. I therefore find that plaintiffs' dismissed federal claim was so "patently without merit" that this Court lacks subject matter jurisdiction.
Compl. ¶ 65 (emphasis added).
See Koerner, 2002 WL 31886728, at *7 (allegation that private actors encouraged the city and its officials to violate plaintiff's constitutional rights failed to establish that the private actors were entwined with the government).
Defendants rely heavily on Tancredi v. Metropolitan Life Insurance Co., for the proposition that plaintiffs' federal claim was not frivolous because Brentwood lends some support for plaintiffs' allegations of state action. However, defendants reliance is misplaced because the Brentwood decision was issued two year after plaintiffs filed their complaint. In Tancredi, the Second Circuit held that the plaintiff's claim was not wholly insubstantial or frivolous — i.e., the claim was colorable — because at the time the plaintiffs filed their complaint, there was at least some foundation, "albeit a weak one," for the argument that the defendants' conduct constituted state action. Specifically, there was one directly analogous case that supported the plaintiffs' contention.
No. 03-9296, 2004 WL 1773237 (2d Cir. Aug. 9, 2004).
See Def. Supp. Mem. at 7-10.
See Tancredi, 2004 WL 1773237, at *8.
See id. at *9.
In this case, however, defendants have not demonstrated that plaintiffs' claim would have been colorable under any previous theory of state action. Defendants have not cited — and the Court has not found — any authority to support the proposition that private action can be deemed state action by virtue of the lessor-lessee relationship or state funding. Furthermore, even if Brentwood had been decided prior to the institution of this action, plaintiffs' claim would be frivolous because the complaint fails to allege any indicia of pervasive entwinement.
In fact, this Court has found quite the opposite. See supra notes 48, 50 (citing cases).
Perhaps anticipating this response, defendants raise the additional argument that the complaint satisfies notice pleading, and therefore, plaintiffs did not have to plead state action with greater particularity. Defendants rely on the Supreme Court's opinion in Swierkiewicz v. Sorema N.A., holding that a complaint in an employment discrimination case need not allege facts establishing all the elements of the claim. Swierkiewicz is inapplicable here, however, because the case dealt with pleading the substance of the claim and not pleading the jurisdictional facts. Because federal courts must assess subject matter jurisdiction from the face of the complaint, it necessarily follows that they must be given more than notice that they may have jurisdiction; parties must set forth the matters that raise a federal question or diversity of citizenship. In this case, plaintiffs' failure to do so defeats defendants' removal of this action.
See Def. Supp. Mem. at 5.
534 U.S. 506 (2002).
See Fed.R.Civ.P., App. Form 2 n. 2 ("The general allegation of the existence of a Federal question is ineffective unless the matters constituting the claim for relief as set forth in the complaint raise a Federal question."). See also Leeds v. Meltz, 85 F.3d at 53; Ortiz v. Duffy Int'l Corp., No. 01-1073, 2001 WL 1636812, at * 1 n. 1 (D.P.R. Nov. 29, 2001) (complaint did not sufficiently allege personal jurisdiction because it did not specify that defendants' place of business was not in plaintiffs' jurisdiction); supra note 46 (citing cases).
IV. CONCLUSION
For the reasons set forth above, this Court lacks federal subject matter jurisdiction and remands this case to state court. The Clerk of the Court is directed to close this motion [#34 on the docket sheet] and this case.
SO ORDERED.