American Atheists, Inc. et al v. Port Authority of New York and New Jersey et al

Filing 1

NOTICE OF REMOVAL from Supreme Court, County of New York. Case Number: 11-108670. (Filing Fee $ 350.00, Receipt Number 465401015132).Document filed by Port Authority of New York and New Jersey, Lower Manhattan Development Corporation, State of New Jersey, Silverstein Properties, Inc., World Trade Center Properties, LLC, World Trade Center Memorial Foundation/National September 11 Memorial And Museum, Governor Chris Christie, Church Of The Holy Name Of Jesus, Brian Jordan.(pl) Modified on 9/2/2011 (pl). (Additional attachment(s) added on 9/2/2011: # 1 Supplement Complaint) (pl).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN ATHEISTS, INC.; DENNIS
HORVITZ; KENNETH BRONSTEIN;
MARK PANZARINO; AND JANE
EVERHART,

No. 11 Civ.

Plaintiffs,

ECF Case

v.

JOGE BATTS

Removed from the Supreme Court of the
State of New York,
Index No. 11-108670 (Hon. Richard F.
Bxaun)

PORT AUTHORITY OF NEW YORK
AND NEW JERSEY; STATE OF NEW
JERSEY; GOVERNOR CHRIS
CHRISTIE, in his official capacity;
SILVERSTEIN PROPERTIES, INC.;
LOWER MANHATTAN
DEVELOPMENT CORPORATION;
WORLD TRADE CENTER MEMORIAL
FOUNDATION / NATIONAL
SEPTEMBER 11 MEMORIAL AND
MUSEUM; WORLD TRADE CENTER
PROPERTIES, LLC; CHURCH OF THE
HOLY NAME OF JESUS; AND BRIAN
JORDAN,
Defendants.

J,

CIV 6026
nil
iUi!

jwUl

I
"

—

CASHIERS
"

"

"

—

—

—

-•

*

-

.

•

ii

NOTICE OF REMOVAL
PLEASE TAKE NOTICE THAT, pursuant to 28 U.S.C. §§ 1441 and
1446, defendants World Trade Center Memorial Foundation / National September 11
Memorial and Museum1; Lower Manhattan Development Corporation; Port Authority of
New York and New Jersey; Silverstein Properties, Inc.; World Trade Center Properties,
LLC; Church of the Holy Name of Jesus (collectively, "Removing Defendants," and
Plaintiffs have named "World Trade Center Memorial Foundation / National September 11
Memorial and Museum" as a defendant. Plaintiffs appear to be referring to the National
September 11 Memorial & Museum at the World Trade Center Foundation, Inc. At the
appropriate time, that defendant will petition the Court for an order that the pleadings reflect
its correct name.

together with Brian Jordan, the State of New Jersey and New Jersey Governor Chris
Christie, "Defendants")2, by and through undersigned counsel, hereby remove the abovecaptioned action (the "Action") from the Supreme Court of the State of New York,
County of New York to the United States District Court for the Southern District of New
York. As grounds for removal. Removing Defendants state as follows:
SUMMARY
This Court has original jurisdiction over the causes of action for
"Violations of the United States Constitution" alleged in this Action pursuant to 28
U.S.C. § 1331, because it "aris[es] under the Constitution, laws, or treaties of the United
States." The Action is therefore removable pursuant to 28 U.S.C. § 1441. This Court has
supplemental jurisdiction over the remaining causes of action alleged in this Action
pursuant to 28 U.S.C. § 1367(a), because they are so related to the alleged violations of
the United States Constitution that they form part of the same case or controversy.
Procedural History and Background
1.

On or about July 27, 2011, Plaintiffs American Atheists, Inc.,

Dennis Horvitz, Kenneth Bronstein, Mark Panzarino, and Jane Everhart ("Plaintiffs")
filed summonses and a complaint captioned American Atheists, Inc., et al. v. Port

2

Brian Jordan, the State of New Jersey, and New Jersey Governor Chris Christie also are
named as defendants in the Action. Those three defendants have not yet expressed a position
on whether they will ultimately join in this Notice of Removal. As discussed in paragraph 3,
upon information and belief, none of the Defendants have been served with Summonses, the
Complaint, or the First Amended Complaint. Accordingly, none of the non-Removing
Defendants need join in, or consent to, this Notice of Removal. See, e.g., Williams v. Int 7
Gun-A-Rama, 416 F.App'x 97, 99 (2d Cir. Mar. 25, 2011); NXIVM Corp. v. Ross, 2009 WL
1765240, at *4 (W.D.N.Y. June 22, 2009) ("Although there is a general rule requiring that all
defendants consent to removal, an exception exists where 'the non-joining defendants have
not been served with service of process at the time the removal petition is filed.'") (quoting
Ell v. S.E.T. Landscape Design, Inc., 34 F.Supp.2d 188, 194 (S.D.N.Y. 1999)).

Authority of New York and New Jersey, et al. Index No. 11-108670 (the "Complaint") in
the Supreme Court for the State of New York, County of New York (the "State Court"),
against Defendants and also Mayor Michael Bloomberg, in his official capacity, and the
City of New York.
2.

On or about August 15, 2011, Plaintiffs filed a First Amended

Complaint bearing the same caption (the "First Amended Complaint") in the State Court
against Defendants. Mayor Michael Bloomberg and the City of New York were no
longer named as defendants in the First Amended Complaint.
3.

Upon information and belief, as at the date of filing of this Notice

of Removal, Plaintiffs have not served Summonses, the Complaint, or the First Amended
Complaint on any of the Defendants. On or around August 25, 2011, certain of the
Defendants received notices purporting to be given under section 312-a of the New York
Civil Practice Law and Rules and requesting that those Defendants complete and return
acknowledgements of receipt to effect service. However, upon information and belief, as
of the date of filing of this Notice of Removal, those acknowledgements of receipt have
neither been executed by those Defendants nor mailed or delivered to Plaintiffs, and
therefore service has not been effected on any of the Defendants.
4.

Accordingly, no process, pleadings or orders have been served

upon Defendants within the meaning of 28 U.S.C. § 1446(a). Copies of certain pleadings
received by Removing Defendants are attached hereto as Exhibit A.
5.

In the Complaint, Plaintiffs alleged that the proposed display of a

cross-shaped steel beam recovered from the World Trade Center site at the National
September 11 Memorial and Museum violates the United States Constitution, the

Constitution of the State of New York, and New York's Civil Rights Act. Plaintiffs
allege the same claims in their First Amended Complaint, and further allege violations of
the New Jersey Constitution and New Jersey civil rights laws. Removing Defendants
deny that there is any merit to any of these claims.
6.

Because Defendants have not yet been served, their time to answer

the Summonses and First Amended Complaint has not started to commence. None of the
Defendants have served or filed an answer.
7.

No motions or other proceedings in this Action are pending in the

State Court, aside from a motion for an order granting Edwin F. Kaginpro hac vice
admission to the New York State Bar dated August 12, 2011.
8.

This Notice of Removal is timely under 28 U.S.C. § 1446(b)

because it is not being filed more than thirty (30) days after the receipt of the Summonses
and Complaint or First Amended Complaint.
9.

The action is removable to this Court because the Southern District

of New York embraces the place where the State Court action is pending. See 28 U.S.C.
§ 1441(a).
Basis for Removal
A.

Federal Question Jurisdiction
10.

Removal is proper under 28 U.S.C. § 1441(b), which provides that

"Any civil action of which the district courts have original jurisdiction founded on a
claim or right arising under the Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the parties."
11.

In the first paragraph of the First Amended Complaint, plaintiffs

state that they "seek to redress the violation by Defendants, acting under color of state

law, of Plaintiffs' rights, privileges, and immunities secured by the First and Fourteenth
Amendments to the United States Constitution . .." See First Amended Complaint ("Am.
Compl."), Ex. A 1 1 . Their first cause of action—for "Violations of the United States
Constitution"—further alleges that the display of the steel beam "is facially violative of
the First Amendment.. . [and] Section One of the Fourteenth Amendment to the
Constitution of the United States." See Am. Compl., Ex. A, ^flj 48-50. This cause of
action "aris[es] under the Constitution, laws and treaties of the United States," and the
District Court therefore has original jurisdiction over it pursuant to 28 U.S.C. § 1331.
12.

Because there is a "separate or independent claim or cause of

action within the jurisdiction conferred by [28 U.S.C. § 1331], the entire case may be
removed" under 28 U.S.C. § 1441(c).
B.

Supplemental Jurisdiction
13.

In addition to their federal constitutional claims, plaintiffs allege

violations of the Constitutions of the State of New York and New Jersey, and New York
and New Jersey civil rights laws.
14.

These state law claims are based on the same common nucleus of

operative facts as plaintiffs' federal constitutional claims. Plaintiffs incorporate and rely
on precisely the same facts for each and every cause of action that they allege. See Am.
Compl., Ex. A, Tfl| 48, 54, 60, 68, 74, 80. The federal and state claims are based upon the
same general allegation that the proposed display of the cross-shaped steel beam is an
unlawful attempt to promote one specific religion on government land, and that it
unlawfully discriminates against persons of other religions and persons who do not
believe in religion.

15.

The District Court therefore has supplemental jurisdiction over the

state law claims under 28 U.S.C. § 1367(a), because they are "so related to claims in the
action within . . . original jurisdiction that they form part of the same case or
controversy..."
Other Procedural Requirements
16.

Promptly upon the filing of this Notice of Removal, a true copy of

this Notice of Removal will be provided to all adverse parties pursuant to 28 U.S.C. §
1446(d). Pursuant to Fed. R. Civ. P. 5(d), Removing Defendants will file with this Court
a Certificate of Service of notice to the adverse parties of removal to federal court.
17.

Promptly upon the filing of this Notice of Removal, Removing

Defendants are filing a Notification of Filing of Notice of Removal with the Clerk of the
Supreme Court of the State of New York, County of New York, in accordance with 28
U.S.C. § 1446(d).
18.

Removing Defendants join in this Notice of Removal and consent

to the removal of this Action to this Court, subject to and without waiving any defenses
and rights available to them, and without conceding that the allegations in the Complaint
or the First Amended Complaint state a valid claim under applicable law.

WHEREFORE, Removing Defendants World Trade Center Memorial
Foundation / National September 11 Memorial and Museum, Lower Manhattan
Development Corporation, Port Authority of New York and New Jersey, Silverstein
Properties, Inc., World Trade Center Properties, LLC, and Church of the Holy Name of
Jesus remove this Action from the Supreme Court of the State of New York, County of
New York, to this Court.

Dated: New York, New York
August 26, 2011
Respectfully submitted,
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP

vf//^^?

By:_Z
Mark H. Alcott
Gerard E. Harper
Hannah S. Sholl
Paul A. Paterson

1285 Avenue of the Americas
New York, New York 10019-6064
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
hsholl@p aulweiss. com
[e-mail]
Attorneys for Defendants National
September 11 Memorial & Museum at the
World Trade Center Foundation, Inc. and
Lower Manhattan Development Corporation
This notice is also being submitted on
behalf, and with the express consent, of the
following counsel and defendants:

PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
Megan Lee
225 Park Avenue South, 15th Floor
New York, NY 10003
Tel: [phone]
[e-mail]
Attorney for Defendant Port Authority of
New York and New Jersey

SILVERSTEIN PROPERTIES, INC.
WORLD TRADE CENTER PROPERTIES,
LLC
Jonathan W. Knipe
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]
Attorney for Defendants Silverstein
Properties, Inc. and World Trade Center
Properties, LLC

ARCHDIOCESE OF NEW YORK
James McCabe
1011 First Avenue
New York, NY 10022
Tel: [phone]
Fax: [phone]
[e-mail]
Attorney for Defendant Church of the Holy
Name of Jesus