Raymond A. Semente D.C., P.C. v. Empire Healthchoice Assurance, Inc. et al

Filing 110

ORDER re 106 : To the extent the County or some other party may be requesting a declaratory judgment to take effect depending upon whether plaintiff and Mr. Scher's defendants actually settle their dispute, the application is denied on the information provided. See attached Order. Ordered by Judge Denis R. Hurley on 5/31/2019. (Bochner, Francesca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RAYMOND A. SEMENTE D.C., P.C.
Plaintiff,

MEMORANDUM AND ORDER
14-CV-5823 (DRH)(SIL)

-againstEMPIRE HEALTHCHOICE ASSURANCE,
INC., VERIZON COMMUNICATIONS,
INC., ET AL.,
Defendants.
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A P P E A R A N C E S:
For Plaintiff:
Quadrino Law Group
225 Broad Hollow Road
Suite 304
Melville, New York 11747
By: Richard J. Quadrino, Esq.
Harold J. Levy, Esq.
For Defendants:
Foley & Lardner LLP
90 Park Avenue
37th Floor
New York, New York 10016
By: Robert Allen Scher, Esq.
For Defendant County of Suffolk:
Suffolk County Attorney's Office
H. Lee Dennison Building
100 Veterans' Memorial Highway
Hauppauge, New York 11788
By: Susan A. Flynn Assistant County Attorney
HURLEY, Senior Judge
Plaintiff Raymond A. Semente ("Semente" or "plaintiff")
has sued three main defendants, viz. Verizon Communications,
Inc., ("Verizon"), Empire Blue Cross Blue Shield ("Empire"), and
Suffolk County ("County").

The attorney representing Verizon and

Empire represents that those two defendants have reached
agreement twice on the "basic terms of the settlement . . . most
recently in January of this year."

(Apr. 15, 2019 Letter of

Robert A. Scher, Esq. to the Court at 1.)

Counsel for plaintiff

confirms that his client is amendable to settling with Verizon
and Empire on agreed terms subject to one condition.
Although the claims against all three defendants are
factually intertwined,1 the cause of action against the County is
state-based unlike the federal ERISA claims leveled against the
other two principal defendants.

Plaintiff takes the position

that it will only consummate the aforementioned settlement if the
Court will retain supplemental jurisdiction over the County under
28 U.S.C. § 1367.

As a result, Verizon and Empire feel that they

are being unfairly held hostage in the litigation which is now in
its sixth year with the concomitant waste of money and other
resources notwithstanding their conditional agreements with
plaintiff.

(Id.)

To resolve this perceived dilemma, I am being

asked to issue an order indicating that I will handle this case
to its conclusion should the subject settlement come about,
rather than dismiss what would then be a solely state-based
action, without prejudice to it being pursued in a state court.
This issue was discussed during a telephone conference

1

7.

See Semente v. Empire et al., 14-CV-05823 (DE No. 53) at
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amongst the parties and the Court held on March 6, 2019.

At that

time, I provided "my preliminary view" that "even if the federal
actions are resolved and thus withdrawn from the fray" I would
retain the case given, inter alia, its age, the fact that it has
been the subject of extensive discovery and motion practice, plus
it is now apparently close to trial ready.

However, I voiced

that view without first hearing from counsel, believing that all
parties would likely concur given the attendant circumstances.
Contrary to my expectations, however, the County
objected; if, it opined, plaintiff and the other two principal
defendants settled, the appropriate venue to hear the claim
against the County would be "the Suffolk County Supreme Court."
(See Mar. 6, 2019 Transcript of Telephone Conference at 4.)

The

County asked for time to brief the matter.
In the County's letter brief of March 26, 2019, it
explained, after acknowledging that such matters are generally
addressed to a court's discretion, that such discretion is
"subject to boundaries."

(Id. at p. 3.)

That was followed by a

listing of a series of cases in which courts declined to retain
supplemental jurisdiction following dismissal of the federal
claims.

(Id.)

However, as noted by counsel for Verizon and

Empire, in each of those cases the dismissal of supplemental
claims occurred, unlike here, in the early stages of the
proceeding.

(Apr. 12, 2019 Letter of Harold J. Levy, Esq. at 1.)
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It was my view then, as it is now, that the issue of whether to
retain supplemental jurisdiction over the pending case or to
remand it to a state tribunal rests in my discretion with a
determinative factor being the state of the litigation undertaken
thus far.

See Ametex Fabrics, Inc. v. Just In Materials, 140

F.3d 101, 104-05 (2d Cir. 1998).
The crux of the present problem is that I am being
asked to render what is in effect an advisory opinion on
hypothetical facts even though broached in an ongoing proceeding.
No case law or statutory authority has been cited in support of
this largely procedural request.
To the extent the County or some other party may be —
and it is unclear to me — requesting a declaratory judgment to
take effect depending upon whether plaintiff and Mr. Scher's
defendants actually settle their dispute, the application is
denied on the information provided.
SO ORDERED.
Dated: Central Islip, New York
May 31, 2019

________________________
DENIS R. HURLEY, U.S.D.J.

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