Riano v. Town of Schroeppel et al

Filing 8

MEMORANDUM-DECISION AND ORDER granting in part and denying in part 3 Motion to Remand to State Court: The Court hereby ORDERS that Plaintiff's state law claim is remanded to the New York State Supreme Court for Onondaga County; and the Court further ORDERS that Plaintiff's federal claim is stayed pending resolution of the state law claim; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/18/2013. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRENDA RIANO,
Plaintiff,
vs.

5:13-cv-352
(MAD/TWD)

TOWN OF SCHROEPPEL, by the
TOWN BOARD OF THE TOWN OF SCHROEPPEL,
consisting of PATRICK J. NUGENT, Town Supervisor,
PAUL M. GILBERT, Town Councilman,
RICHARD P. KLINE, Town Councilman,
WILLIAM GODFREY, Town Councilman,
WILLIAM W. VANDYKE, Town Councilman,
ROBERT DALTON, Code Enforcement Officer
of the Town of Schroeppel, and PAUL D. CASPER, JR.,
former Town Supervisor of the Town of Schroeppel,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

NEIL M. GINGOLD, ATTORNEY
5178 Winterton Drive
Fayetteville, New York 13066
Attorney for Plaintiff

NEIL M. GINGOLD, ESQ.

RICE & AMON
Four Executive Boulevard
Suite 100
Suffern, New York 10901
Attorneys for Defendants

TERRY RICE, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On March 1, 2013, Plaintiff commenced this suit by filing a notice of petition and verified
petition in New York State Supreme Court, Onondaga County. See Dkt. No. 1 at 5-50

("Petition").1 In the Petition, Plaintiff asserts claims arising out of Defendants' issuance of a
demolition permit and subsequent stop-work order. Plaintiff seeks a declaratory judgment
pursuant to Section 3001 of the New York Civil Practice Law and Rules and damages under 42
U.S.C. § 1983. See id. On March 28, 2013, Defendants timely removed the action to this Court
pursuant to 28 U.S.C. § 1441 et seq., on the grounds that it "arises under the Constitution and
laws of the United States and involves a federal question." See Dkt. No. 1 at 2, ¶ 3. Currently
before the Court is Plaintiff's motion to remand to New York State Supreme Court. See Dkt. No.
3.
II. BACKGROUND
The following facts are alleged in Plaintiff's Petition. Plaintiff Brenda Riano is an
individual residing in Phoenix, New York. See Petition ¶ 2. Defendant Town of Schroeppel
("Town") is a municipal corporation organized under the laws of the State of New York. Id. ¶ 3.
Defendants Patrick J. Nugent (Town Supervisor), Paul M. Gilbert (Town Councilman), Richard
P. Kline (Town Councilman), William Godfrey (Town Councilman), and Paul W. VanDyke
(Town Councilman), are sued in their official capacities as elected members of the Town of
Schroeppel Town Council. Id. ¶ 4. Defendant Nugent is also sued in his individual capacity. Id.
¶ 5. Defendant Robert Dalton, the Town's Code Enforcement Officer, is sued in both his official
and individual capacity. Id. ¶ 6. Defendant Paul D. Casler, Jr. is the former Town Supervisor and
is sued in his individual capacity. Id. ¶ 7.

Citations to page numbers of documents identified by docket entry number are to the
page numbers assigned by the Court's electronic filing system.
1

2

In 2007, the Town passed a local law titled "Local Law Providing for the Administration
and Enforcement of the New York State Uniform Fire Prevention and Building Code," which
provides:
This local law provides for the administration and enforcement of
the New York State Uniform Fire Prevention and Building Code
(Uniform Code) and the State Energy Conservation Construction
Code (the Energy Code) in this Town. Except as otherwise
provided in the Uniform Code, other state law, or other section of
this local law, all buildings, structures, and premises, regardless of
use or occupancy, are subject to the provisions of this local law.
Id. ¶ 9 (quoting Local Law No. 1 of 2007 of the Town of Schroeppel ("Local Law No. 1")).
Local Law No. 1, Section 5 provides that a building permit which conforms to the requirements
of the Uniform Code is a prerequisite for projects, including demolition of any building or
structure. See id. ¶ 36.
Article 18 of the New York Executive Law, the New York State Uniform Fire Prevention
and Building Code Act, states:
1. The provisions of this article and of the uniform fire prevention
and building code shall supersede any other provision of a general,
special or local law, ordinance, administrative code, rule or
regulation inconsistent or in conflict therewith[.]
2. Nothing herein shall be construed as affecting the authority of
the state labor department to enforce a safety or health standard
issued under provisions of sections twenty-seven and twenty-sevena of the labor law.
Id. ¶ 54 (quoting N.Y. Exec. Law § 383). The New York State Department of Labor, pursuant to
its authority under New York State law, has promulgated regulations regarding asbestos surveys
under 12 N.Y.C.R.R. Part 56. Subsection 56-5.1(g) mandates that an asbestos survey is a
prerequisite to the issuance of a building or demolition permit. See id. ¶ 58.

3

On March 24, 2011, Plaintiff visited the Town Code Enforcement Office ("CEO") to
obtain a permit to demolish a building which formerly housed her bowling alley business, the
Phoenix Bowl Inn Sports Center ("Bowl Inn"). Plaintiff was instructed by a clerk in the CEO that
all she would need to submit in order to obtain the demolition permit is a permit application, a
certificate of insurance, and a thirty dollar ($30.00) fee. See id. ¶¶ 10-17, 24. Thereafter, on
March 25, 2011, the CEO issued Plaintiff the requested demolition permit for the Bowl Inn. See
id. ¶¶ 18-19.
Plaintiff commenced demolition of the Bowl Inn on April 19, 2011, and on April 20,
2011, Plaintiff was verbally issued a stop work order for the demolition by Defendant Dalton, on
the grounds that an asbestos survey had not been conducted prior to issuance of the demolition
permit. See id. ¶¶ 20, 24, 73. On April 25, 2011, Plaintiff received a written Notice of Violation
and Order to Comply from the New York State Department of Labor, Division of Asbestos
Control. This notice informed Plaintiff that, since she had failed to prepare an asbestos survey
prior to the commencement of demolition of the Bowl Inn, the entire site was deemed
contaminated. As a result, all of the remaining debris was to be assumed contaminated with
asbestos containing material and, therefore, had to be handled and disposed of as asbestos. See id.
¶¶ 27-28.
Plaintiff had contracted with non-party Alpco Recycling ("Alpco") for the demolition of
the Bowl Inn. The contract called for Alpco to demolish the entire building, recycle or sell any
material capable of being recycled or sold, level the grade of the site, and remove any remaining
debris. Alpco could not sell or recycle any of the scrap metal and other materials because of the
State Department of Labor's determination that the debris from the demolition that had been
completed, as well as the parts of the Bowl Inn that had not yet been demolished, were deemed
4

contaminated by asbestos. As a result, Alpco backed out of performing the remainder of its
obligations under the contract, and Plaintiff has not completed the demolition and removal See
id. ¶¶ 76-77.
Plaintiff had also contracted with a non-party retail sales company to purchase the Bowl
Inn property for development. This contract required that the site be cleared of the Bowl Inn
structure. Since Plaintiff did not satisfy this condition, the developer withdrew from the contract
for sale. See id. ¶¶ 78-79.
Plaintiff alleges that
Local Law No. 1 is in violation of the State of New York Labor
Law and its regulations dealing with asbestos[.]
The Town of Schroeppel Code Enforcement Officer is prohibited
and would be negligent under the State Labor Law to issue a
Demolition Permit for a building or structure, knowing there has
not been prepared an asbestos survey for that building or structure,
for that violates the Labor Law.
...
[Plaintiff] contends that [Local Law No. 1] is invalid and
unenforceable, both on its face and as construed by [Defendants], in
that [Local Law No. 1] is in clear conflict with the preemptive State
Labor Law and its regulations as to the asbestos and demolition
activities associated therewith, when the Town issued a Demolition
Permit to [Plaintiff] on March 26, 2011, allowing her to commence
the demolition of her building, and then three and a half weeks later
the Town Code Enforcement Officer issued a verbal Stop Work
Order to [Plaintiff] based on [Plaintiff] not having prepared an
asbestos survey of her building prior to commencing the
demolition.
Id. ¶¶ 75, 90, 98. Plaintiff's first cause of action seeks a declaration pursuant to N.Y. C.P.L.R. §
3001 as to the validity of Local Law No. 1 and whether it was "negligently administered" by
Defendants. See id. ¶¶ 99-100, A. Plaintiff's second cause of action seeks money damages
arising out of Defendants' conduct, as well as a determination that Defendants deprived Plaintiff
5

of her rights under the Due Process, Equal Protection, and Contract Clauses of the United States
Constitution and comparable provisions of the New York State Constitution. See id. ¶¶ 101-102,
D.
III. DISCUSSION
Federal district courts are courts of limited jurisdiction. Under 28 U.S.C. § 1331, a federal
court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States." 28 U.S.C. § 1331. A defendant may remove to federal court "'any civil
action brought in a State court of which the district courts of the United States have original
jurisdiction.'" Shapiro v. Logistec USA Inc., 412 F.3d 307, 309-10 (2d Cir. 2005) (quoting 28
U.S.C. § 1441(a)). However, once a case has been removed, it must be remanded "'[i]f at any
time before final judgment it appears that the district court lacks subject matter jurisdiction.'" Id.
at 310 (quoting 28 U.S.C. § 1447(c)). "Where, as here, jurisdiction is asserted by a defendant in a
removal petition, it follows that the defendant has the burden of establishing that removal is
proper." See Cal. Pub. Emps' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004)
(citations omitted). If there are any doubts as to removability, they are resolved against
removability "out of respect for the limited jurisdiction of the federal courts and the rights of [the]
states[.]" In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 124 (2d
Cir. 2007) (citation omitted). Although there is a presumption that the court has jurisdiction when
the matter is brought in federal court in the first instance, "[a] defendant removing a case to
federal court encounters instead the general principle that removal is disfavored and remand
favored." Pollock v. Trustmark Ins. Co., 367 F. Supp. 2d 293, 296-97 (E.D.N.Y. 2005) (citation
omitted).

6

Plaintiff raises several arguments in support of her motion to remand. First, Plaintiff
argues that Defendants' notice of removal was procedurally improper because "[n]one of the
defendants filed any written joinder or consent to remove this case from state court to federal
court within 30 days of their being served with the Verified [P]etition in this case[.]" Dkt. No. 32 at 2. Second, Plaintiff argues that this Court should remand the case because "[t]he state law
cause of action is clearly the predominant matter herein[.]" Dkt. No. 3-1 at 2. Finally, Plaintiff
argues that Defendants' notice of removal failed to allege the proper basis for removal and instead
cited to 28 U.S.C. § 1441(d), which permits the removal of civil actions brought in state courts
against foreign states. See Dkt. No. 7, ¶ 22.
In response, Defendants assert that the Notice of Removal, filed on March 25, 2013, see
Dkt. No. 1, was properly signed by counsel on behalf of all Defendants and thus, was not
procedurally deficient. See Dkt. No. 5, ¶¶ 8-9. Defendants also argue that there is no support for
Plaintiff's proposition that because the state law cause of action is predominant, remand of the
entire case is appropriate. It was Plaintiff who interposed federal constitutional claims,
Defendants argue, and thus, the matter was properly removed. See id. ¶ 11. Since Plaintiff's final
argument, regarding the statutory basis for removal alleged by Defendants in their notice of
removal, was raised in her reply, Defendants have not had the opportunity to respond.
A.

Plaintiff's Procedural Arguments for Remand
28 U.S.C. § 1446, which governs the procedure for removal of civil actions to federal

court, provides:
(a) A defendant or defendants desiring to remove any civil action
from a State court shall file in the district court of the United States
for the district and division within which such action is pending a
notice of removal signed pursuant to Rule 11 of the Federal Rules
of Civil Procedure and containing a short and plain statement of the
7

grounds for removal, together with a copy of all process, pleadings,
and orders served upon such defendant or defendants in such action.
...
(b)(2)(A) When a civil action is removed solely under section
1441(a), all defendants who have been properly joined and served
must join in or consent to the removal of the action.
28 U.S.C. § 1446.
Plaintiff argues that the notice of removal was procedurally deficient because it "contains
no joinder or consent by any of the defendants," Dkt. No. 3-2 at 2, and because Defendants cited
section 1441(d) as the basis for removal, "which is clearly inapplicable to the facts herein," Dkt.
No. 7, ¶ 22. With regard to the first argument, Defendants note that the notice of removal was
"signed by [counsel] in his capacity as the attorney for all of the 'Respondents.'" Dkt. No. 5, ¶ 8;
see also Dkt. No. 1.
"While courts generally do not require all defendants to sign the removal petition itself,
most courts have required some form of unambiguous written evidence of consent to the court in
timely fashion[,]" a requirement known as the "rule of unanimity." Heller v. N.Y.C. Health and
Hosps. Corp., No. 09 Civ. 6193, 2010 WL 481336, *2 (S.D.N.Y. Feb. 1, 2010) (citations
omitted); see also Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998) (discussing
requirement that some form of unambiguous written evidence of consent be submitted to the court
in timely fashion); Sleight v. Ford Motor Co., No. 10 Civ. 3629, 2010 WL 3528533, *1 (E.D.N.Y.
Sept. 3, 2010) (holding that, "in cases where there are multiple defendants, the Rule of Unanimity
requires that 'all named defendants over whom the state court acquired jurisdiction must join in
the removal petition for removal to be proper'"). "Without such consent, 'there would be nothing
on the record to bind the allegedly consenting defendant' or 'prevent[ ] one defendant from
choosing a forum for all.'" Glatzer v. Cardozo, No. 05 civ. 10113, 2007 WL 6925941, *2
8

(S.D.N.Y. Sept. 26, 2007) (citing Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.11
(5th Cir. 1988)); see also Town of Moreau v. State Dep't of Envtl. Conserv., No. 96-CV-983, 1997
WL 243258, *5 (N.D.N.Y. May 5, 1997).
"It is insufficient for a defendant who has not signed the removal petition to merely advise
the removing defendant that it consents to removal and that the removing defendant may
represent such consent to the Court on its behalf." Edelman v. Page, 535 F. Supp. 2d 290, 292
(D. Conn. 2008) (internal quotation marks and citation omitted). Nevertheless, a defendant may
consent to removal through counsel. See Ferreira v. New York Daily News, No. 08-CV-1520,
2009 WL 890577, *2 (E.D.N.Y. Mar. 31, 2009).
Plaintiff, in apparent recognition that Defendants' notice of removal satisfied the "rule of
unanimity" on its face, argues in reply that "there is serious question as to how and when the
unified concurrence on the part of all seven individual respondents occurred." Dkt. No. 7, ¶ 12;
see also id., ¶ 5 ("I question whether [Defendants' counsel] signed the Notice of Removal in his
capacity as the attorney for all of the respondents"). In support of this argument, Plaintiff refers
to several Town Board minutes which, it is alleged, demonstrate that no resolution was raised or
approved regarding the retention of counsel in this matter. Plaintiff also raises questions
regarding certain conflicts of interest that may exist among the Defendants. Since these
arguments are raised by Plaintiff for the first time in her reply brief, the Court is well within its
discretion to decline to consider them. See, e.g., Lee Valley Tools, Ltd. v. Indus. Blade Co., 288
F.R.D. 254, 263 n.7 (W.D.N.Y. 2013) (citing, inter alia, In re Dobbs, 227 Fed. Appx. 63, 64 (2d
Cir. 2007)).

9

Nevertheless, the Court finds that these arguments are not appropriately raised at this time.
Counsel for Defendants filed the notice of removal pursuant to Fed. R. Civ. P. 11, and represented
to the Court that he did so on behalf of all Defendants. Rule 11 requires that
[e]very pleading, written motion, and other paper must be signed by
at least one attorney of record in the attorney's name–or by a party
personally if the party is unrepresented[.]
By presenting to the court a pleading, written motion, or other
paper–whether by signing, filing, submitting, or later advocating
it–an attorney or unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper
purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions
are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law or for establishing new law;
(3) the factual contentions have evidentiary support
or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified, are
reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(a), (b); see also id., subsection (c) (providing that failure to abide by the
requirements of Rule 11 can subject responsible attorneys, law firms, and parties to sanctions for
their violations). Thus, counsel for Defendants has represented to this Court, upon penalty of
Rule 11 sanctions, that he was authorized to file the notice of removal on behalf of all
Defendants. Based upon this record, the Court finds Defendants have satisfied the rule of
unanimity. Plaintiff may pursue her theories regarding the manner of consent and the extent of
any conflicts among Defendants during discovery and, providing Defendants notice and an
opportunity to respond, renew her motion at a later time.
10

Plaintiff also argues that the notice of removal was procedurally defective because
Defendants cite to 28 U.S.C. § 1441(d) as the basis for removal. See Dkt. No. 1, ¶ 3 ("this action
may be removed to this Court pursuant to 28 U.S.C. §§ 1441(d) and 1331"); see also id., ¶¶ 5, 6.
As Plaintiff correctly notes, section 1441(d) is not an appropriate basis for removal of the instant
action. That provision allows for the removal of actions brought in a state court against a foreign
state. Since this argument was only raised by Plaintiff on reply, as noted supra, the Court is well
within its discretion to disregard it. See Lee Valley Tools, 288 F.R.D. at 263 n.7.
In the interest of resolving disputes on the merits, the Court finds that this argument to be
unpersuasive. Although Defendants have not had an opportunity to respond to this argument, it is
clear that none of the Defendants contend that they are a foreign state, and thus, removal under
section 1441(d) is appropriate. Rather, Defendants clearly contend that removal is appropriate
because this case raises a federal constitutional question, which it does. Nor has Plaintiff argued
that removal of the federal claim was jurisdictionally inappropriate. Although Defendants
mistakenly cited to section 1441(d), this scrivener's error does not change the fact that Defendants
sought removal "pursuant to 28 U.S.C. § 1441 et seq.," because this "civil action arises under the
Constitution and laws of the United States and involves a federal question." Dkt. No. 1 at 2.
Accordingly, the Court denies Plaintiff's motion to remand on this basis. See Camacho v. Varela,
No. 05-CA-341, 2005 WL 2931949, *1 (W.D. Tex. Nov. 4, 2005) (rejecting the plaintiff's
argument that the defendants' notice of removal was procedurally defective because they
incorrectly cited to 28 U.S.C. § 1332(a)(2), rather than 28 U.S.C. § 1332(a)(1), as the basis for
diversity jurisdiction).
B.

Plaintiff's Jurisdictional Arguments in favor of Remand

11

Plaintiff next argues "the Court should remand the entire case back to State Supreme
Court, under 28 U.S.C. § 1367(c)(1) that the claim raises a novel or complex issue of State law, or
under 1367(c)(2), that the claim substantially predominates over the claim which the district court
has original jurisdiction [sic]." Dkt. No. 7, ¶ 34. In the alternative, Plaintiff argues, "the court
should remand the state cause of action for a declaratory judgment, while this court retains the
1983 cause of action, but hold the federal cause of action pending the state court disposition." Id.
¶ 35.2
Under 28 U.S.C. § 1441, the federal removal statute, a defendant may remove a civil
action from state court to federal court if the action could originally have been brought in federal
court pursuant to either the court's federal question (28 U.S.C. § 1331) or diversity (28 U.S.C. §
1332) jurisdiction. See 28 U.S.C. § 1441(a), (b). A federal question arises if a substantial,
disputed question of federal law is presented on the face of a plaintiff's "well-pleaded complaint."
Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004). The removal statute provides, in pertinent
part, that "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

In her opening brief, Plaintiff also argued that 28 U.S.C. § 1441(c) requires that "state
claims are to be severed and remanded back to the state courts from which the claims originated."
Section 1441(c) applies to civil actions that include "a claim not within the original or
supplemental jurisdiction of the court or a claim that has been made non-removable by statute."
Since the Court finds, and Plaintiff concedes, that the state law claims are within the Court's
supplemental jurisdiction, and Plaintiff has not argued that the state law claims are nonremovable by statute, section 1441(c) is inapplicable to the instant motion. See Moore v. Svehlak,
No. 12-2727, 2013 WL 3683838, *8-9 (D. Md. July 11, 2013) (stating that "[i]t is only when a
federal claim is combined with a state law claim over which the court lacks supplemental or
original jurisdiction that 'removal under subparagraph (1)' of section 1441(c) is authorized")
(quoting 28 U.S.C. § 1441(c)(2) and legislative history of 2011 amendments thereto). Moreover,
as discussed supra, Plaintiff herself argued that Defendants failed to satisfy the rule of unanimity
under section 1446(b)(2)(A), which by its terms applies only to "civil action[s] [ ] removed solely
under section 1441(a)." 28 U.S.C. § 1446(b)(2)(A).
2

12

court of the United States for the district and division embracing the place where such action is
pending." 28 U.S.C. § 1441(a).
Once a case has been properly removed, a federal court must generally entertain all claims
over which it has original subject-matter jurisdiction. See Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 716 (1996). Here, Defendants' removal was proper because Plaintiff's complaint raises
questions of federal law, specifically violations of 42 U.S.C. § 1983. Plaintiff concedes as much,
but asserts that remand is nevertheless appropriate because the state law claim raises a novel or
complex issue of state law and substantially predominates over the federal claim.
As an initial matter, this Court does not have the authority to remand Plaintiff's federal
claims at this stage of the litigation. There is substantial precedent in this Circuit which holds that
neither the removal statute, 28 U.S.C. § 1441, nor the supplemental jurisdiction statute, 28 U.S.C.
§ 1367, authorizes a federal court to remand claims over which it has original jurisdiction. See,
e.g., Hickerson v. City of New York, 932 F. Supp. 550, 557-59 (S.D.N.Y. 1996); City of New
Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d 353, 371-73 (S.D.N.Y. 2000); Law v. City of
Ansonia, No. 05-CV-1515, 2005 WL 3132703, *1 (D. Conn. Nov. 22, 2005); Nelson v. City of
Rochester, 492 F. Supp. 2d. 282, 287-88 (W.D.N.Y. 2007). Thus, "this Court has an obligation to
exercise jurisdiction over federal claims properly before it." Sherman v. City of Chester, No. 01
CIV. 8884, 2001 WL 1448613, *5 (S.D.N.Y. Nov. 15, 2001). Having found that the Court cannot
remand Plaintiff's federal claim, the Court will next analyze whether exercising supplemental
jurisdiction over Plaintiff's state law claims is appropriate. See GBI Holding Co. v. City of
Chelan, No. 12-CV-89, 2012 WL 1610093, *2 (E.D. Wash. May 7, 2012); 14B Charles A.
Wright, et al., Federal Practice and Procedure § 3722 (4th ed. 2012) (stating that "the federal

13

court, in its discretion under Section 1367(c), may decline to hear supplemental state law claims,
and remand them to state court").
A federal court must perform a two-step inquiry when deciding whether to exercise
supplemental jurisdiction over state law claims upon removal. First, the court must determine
whether the state law claims "are so related to claims in the action within [the court's] original
jurisdiction that they form part of the same case or controversy[.]" 28 U.S.C. § 1367(a); see also
Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989) (observing that supplemental jurisdiction is
appropriate where "the state and federal claims derive from a common nucleus of operative fact"),
partially abrogated on other grounds by Graham v. Connor, 490 U.S. 386 (1989). If this
requirement is not satisfied, the court must remand the state law claims to the state court in which
they were originally filed for lack of subject matter jurisdiction. 28 U.S.C. § 1441(c)(2). Second,
if the court concludes that the "same case or controversy" requirement is satisfied, it must then
decide whether to exercise supplemental jurisdiction based upon the factors set forth in 28 U.S.C.
§ 1367(c). Those factors are: (1) whether the state claims raise novel or complex issues of state
law; (2) whether the state claims substantially predominate over the federal claims; (3) whether
the federal claims have been dismissed; and (4) whether there are exceptional circumstances or
other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c). "Once a court identifies
one of the factual predicates which corresponds to one of the subsection 1367(c) categories, the
exercise of discretion 'is informed by whether remanding the pendent state claims comports with
the underlying objective of most sensibly accommodat[ing] the values of economy, convenience,
fairness, and comity.'" Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 446
(2d Cir. 1998) (citation omitted). If the court declines to exercise supplemental jurisdiction after
consideration of the statutory and common law factors, the court may then remand the state law
14

claims to the state court in which they were originally filed. See City of New Rochelle v. Town of
Mamaroneck, 111 F. Supp. 2d 353, 370 (S.D.N.Y. 2000) (observing that "where the Court
declines to exercise supplemental jurisdiction, it has discretion to remand the case back to state
court") (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988); 14C Wright, et al., §
3739 (noting that "[a] federal court exercising subject-matter jurisdiction, whether because the
plaintiff commenced the case in federal court or because the defendant removed it there, always
has had the option of hearing or dismissing any state law claims that are supplemental to the
federal claims that are the basis for jurisdiction").
Plaintiff concedes, as she must, that original jurisdiction over her section 1983 claim is
proper. See Dkt. No. 3 (stating that the section 1983 cause of action is "within the original
jurisdiction of this court"). The Court must then decide whether to exercise supplemental
jurisdiction over Plaintiff's state law claim. As an initial matter, the Court finds that Plaintiff's
state law claim arises from the same case or controversy and common nucleus of operative fact as
her section 1983 claim, which Plaintiff does not dispute, see Dkt. No. 31, ¶ 10 (asserting that the
section 1983 claim "is ostensibly based on the underlying facts from the first cause of action [i.e.,
the state law claim]"). Accordingly, the Court concludes that it may exercise supplemental
jurisdiction over this claim pursuant to section 1367(a). As such, the Court must next determine
whether it should exercise supplemental jurisdiction pursuant to section 1367(c). See CarnegieMellon Univ., 484 U.S. at 350 (noting that the doctrine of supplemental jurisdiction "is a doctrine
of discretion, not of plaintiff's right") (quoting United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 726 (1966)).
1.

28 U.S.C. § 1367(c)(1)

15

Plaintiff asserts that this case raises issues of first impression regarding whether Local
Law No. 1 is a violation of New York State Law and whether the Town is applying Local Law
No. 1 in contravention of New York State Law. See Dkt. No. 3-2 at 1; Dkt. No. 7, ¶ 32.
Specifically, Plaintiff seeks
a determination from the court as to whether the Town of
Schroeppel Local Law No. 1 of 2007 was in violation of, and
contrary, to the terms and conditions of the New York State Uniform
Fire Prevention and Building Code (the Building Code); Article 9,
§ 2 Powers and duties of legislature; home rule powers of local
government; statute of local governments, of the New York State
Constitution; New York State Executive Law § 383 Construction
with other laws; severability (as to the Building Code); Article 30
of the New York State Labor Law Asbestos or Products Containing
Asbestos; Licensing under the New York State Labor Law; and
Title 12 of New York Codes, Rules and Regulations Part 56-5.
Dkt. No. 7, ¶ 4.
In deciding the instant motion, the Court is guided by certain fundamental principles
regarding federal court jurisdiction. "Federal courts are [ ] obligated [ ] to avoid deciding a
federal constitutional question unless decision is 'absolutely necessary to a decision of the case.'"
Hickerson v. City of New York, 932 F. Supp. 550, 554 (S.D.N.Y. 1996) (quoting Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 247 (Brandeis, J. concurring)). That is, "a case should be
decided first on state law grounds in order to eliminate the need to decide a federal constitutional
question." Id. (citing Siler v. Louisville & Nashville R.R., 213 U.S. 175, 193 (1909)). As the
Second Circuit has held: "Where a pendent state claim turns on novel or unresolved questions of
state law, especially where those questions concern the state's interest in the administration of its
government, principles of federalism and comity may dictate that these questions be left for
decision by the state courts." Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998).

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The New York State law claim in this case is precisely the type of novel and complex
state law issue which federal courts should avoid deciding, especially on a matter of first
impression. Plaintiff's allegations go to the very heart of the interplay between local and state
law, as it pertains to building codes, labor law, and the proper administration of both. "[I]t is
fundamental that 'needless decisions of state law should be avoided both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed reading of applicable
law.'" Young v. N.Y.C. Trans. Auth., 903 F.2d 146, 163-64 (2d Cir. 1990), cert denied, 498 U.S.
984 (1990) (quoting Gibbs, 383 U.S. at 726). Accordingly, the Court declines to exercise
supplemental jurisdiction over Plaintiff's State law claim pursuant to section 1367(c)(1). See City
of New Rochelle, 111 F. Supp. 2d at 371 (analyzing section 1367(c)(1) and finding that
"[r]esolution of the State issues here require a determination of the parameters of state and
municipal authority, and will therefore have wide-reaching impact on issues fundamental to
governance of New York State"); Sherman, 2001 WL 1448613, at *4-5 (exercising discretion to
remand state law claims because "[t]he crux of plaintiff's state law claim is that the Town's
attempt to block his proposed development exceeded the authority granted to municipalities under
[state law]"); GBI Holding Co., 2012 WL 1610093, at *5 (declining supplemental jurisdiction
over state law claims which "present[ed] complex and interrelated questions of state real property
law, constitutional law and administrative law").
2.

28 U.S.C. § 1367(c)(2)

Plaintiff argues that her section 1983 claim "is only an incident or adjunct of the state
claim." Dkt. No. 3. The State law cause of action seeks a substantive determination regarding the
validity of Local Law No. 1. The federal cause of action seeks ancillary damages resulting from
the Town's conduct as it pertains to the issuance of her building permit under Local Law No.1.
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Thus, Plaintiff argues, "[t]he state law cause of action is clearly the predominant matter herein."
Dkt. No. 3-1, ¶ 11; see also Dkt. No. 7, ¶ 27 (arguing that "the main conflict [ ] lies in the
question of the extent to which local law in question (Town Local Law No. 1 of 2007) conflicted,
if at all, with the State Labor Department's Article 30 of the State Labor Law, and Title 12 New
York Codes, Rules and Regulations Part 56-5").
Where the state claims "constitute the real body of a case" to which federal claims are "an
appendage," declining jurisdiction under this section 1367(c)(2) is appropriate to prevent a
situation where "permitting litigation of all claims in the district court can accurately be described
as allowing a federal tail to wag what is in substance a state dog." State of New York v. Phillip
Morris Inc., No. 97 CIV. 794, 1998 WL 2574, *2 (S.D.N.Y. Jan. 5, 1998). "State law claims can
predominate 'in terms of proof, of the scope of the issues raised, or of the comprehensiveness of
the remedy sought.'" Dedalus Foundation v. Banach, No. 09 Civ. 2842, 2009 WL 3398595, *5
(S.D.N.Y. Oct. 16, 2009) (citing Gibbs, 383 U.S. at 726). In making this determination, courts
consider "whether the state law claims are more complex or require more judicial resources to
adjudicate or are more salient in the case as a whole than the federal law claims." Id. (citation
omitted).
The State law claim in the instant matter presents the core issue that must be resolved
before any court can reach the federal claim. If it is found that Local Law No. 1 was not adopted
or applied in contravention of controlling State law, such a ruling will significantly narrow the
scope of the issues to be decided on the federal claim. If, on the other hand, it is found that the
Town violated State law, resolution of the federal claim will be largely focused on the issue of
damages. In either event, this case presents a state dog with a federal tail. Accordingly, the Court
also declines to exercise supplemental jurisdiction under section 1367(c)(2). See GBI Holding
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Co., 2012 WL 1610093, at *4 (finding that the state law dispute over a conditional land use
permit substantially predominated over the section 1983 claim for damages).
Finally, the values of economy, convenience, fairness, and comity are promoted by
declining supplemental jurisdiction over Plaintiff's state law claim. The litigation is still in its
early stages; Defendants have not yet answered or otherwise responded to the petition here or in
state court. Litigating the state law issues in state court would not prejudice either party, nor
would doing so be any less convenient to the parties were the case to remain in federal court.
Last, and perhaps most important, resolution of the state law issues in state court will also avoid
needless decisions of state law in the interest of comity. See Dedalus, 2009 WL 3398595, at *6.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court declines to exercise supplemental
jurisdiction over Plaintiff's State law claim pursuant to 28 U.S.C. § 1367(c)(1) and (2), and
remands that claim to the New York State Supreme Court for adjudication. The Court retains
jurisdiction over Plaintiff's federal claim, and stays the case pending resolution of the State law
claim. See City of New Rochelle, 111 F. Supp. 2d at 373; Sherman, 2001 WL 1448613, at *5;
Nelson, 492 F. Supp. 2d at 288-89.
Accordingly, the Court hereby
ORDERS that Plaintiff's state law claim is remanded to the New York State Supreme
Court for Onondaga County; and the Court further
ORDERS that Plaintiff's federal claim is stayed pending resolution of the state law claim;
and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: October 18, 2013
Albany, New York

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