Doe 1 et al v. Starpoint Central School District et al

Filing 31

DECISION AND ORDER: The plaintiffs' motion to remand, Docket Item 7, and their motion to proceed by pseudonym, Docket Item 26, are GRANTED, but their request for attorney's fees and costs, Docket Item 7, is DENIED. The case is REMANDED to New York State Supreme Court, Niagara County. The Clerk of the Court shall close the case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/10/2023. (WMH)Clerk to Follow up

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN DOE 1, as Parent and Natural
Guardian of his son, John Doe 2, a
person under the age of 18; et al.,
Plaintiffs,

23-CV-207-LJV
DECISION & ORDER

v.
STARPOINT CENTRAL SCHOOL
DISTRICT, et al.,
Defendants.
On February 28, 2023, the plaintiffs—a student in the Starpoint Central School
District in Lockport, New York (“Starpoint”), and the parents of another Starpoint
student—commenced this action in New York State Supreme Court, Niagara County. 1
Docket Item 1-1; see also Docket Item 26-2 (redacted petition). They claim that the
students’ “emergency removal” 2 from Starpoint High School was based on unfounded
allegations of sexual harassment and therefore is arbitrary and capricious. See id. And

Because of one of the students is a minor, he is proceeding through his
parents. See Docket Item 1-1. This Court therefore refers to “the students” when it
means the two removed students in particular and to “the plaintiffs” when it means the
plaintiffs generally.
1

Under the Title IX regulation titled “[e]mergency removal,” a school may
“remov[e] a respondent from the [school’s] education program or activity on an
emergency basis, provided that the [school] undertakes an individualized safety and risk
analysis, determines that an immediate threat to the physical health or safety of any
student or other individual arising from the allegations of sexual harassment justifies
removal, and provides the respondent with notice and an opportunity to challenge the
decision immediately following the removal.” 34 C.F.R. § 106.44(c).
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they seek an order under Article 78 of the New York Civil Practice Law and Rules
(“C.P.L.R.”) vacating Starpoint’s decision to remove the students from school. See id.
On March 7, 2023, the defendants—Starpoint, the Starpoint Board of Education,
and Starpoint Superintendent Dr. Sean Croft—removed the case to this Court. Docket
Item 1. They maintain that this Court has subject matter jurisdiction over the plaintiffs’
Article 78 petition because the plaintiffs’ claims really arise under federal law—namely,
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, and the
regulations governing emergency removal, see 34 C.F.R. § 106.44(c). Docket Item 1.
On March 16, 2023, the plaintiffs moved to remand and to expedite the resolution
of that motion. Docket Item 7. This Court granted the motion to expedite that same
day, Docket Item 8, and on March 29, 2023, the defendants responded to the motion to
remand, Docket Item 14. The plaintiffs replied on March 31, 2023, Docket Item 15, and
three days later, this Court heard oral argument on the motion to remand, Docket Item
17.
For the reasons that follow, the motion to remand is granted, and the case is
remanded to New York State Supreme Court, Niagara County. The plaintiffs’ motion to
proceed by pseudonym also is granted, but their request for attorney’s fees and costs is
denied.
FACTUAL BACKGROUND 3
As mentioned above, the plaintiffs are a student at Starpoint High School and the
parents of another Starpoint student. Docket Item 1-1 at ¶¶ 2-3. Both students are
The following facts are taken from the plaintiffs’ Article 78 petition, Docket Item
1-1. “On a motion to remand for lack of subject matter jurisdiction, courts assume the
3

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members of the Starpoint wrestling team. Id. at ¶ 20. On February 7, 2023, Dr. Croft
sent the students a “Notice of Emergency Removal,” which informed them that Starpoint
had “conducted an individualized safety and risk analysis” and “determined that [they]
pose[] an immediate threat to the physical health and safety of students.” Id. at ¶¶ 1011. According to the plaintiffs, those “‘Notices of Emergency Removal’ were deficient in
that they did not identify the ‘emergency threat of physical safety or harm’ perpetrated
by [the students].” Id. at ¶ 12. The notices also “provided no other information on the
allegations of sexual harassment.” Id. at ¶ 13. Immediately after receiving the notices,
the plaintiffs’ attorneys “challenged [the] decision and requested all relevant
documentation associated with [Starpoint’s d]ecision.” Id. at ¶¶ 14-15.
The plaintiffs say that any allegations of sexual harassment are false. They
maintain that the allegations were based on “three . . . ‘piling on’ incidents” involving the
Starpoint wrestling team, which were merely instances of team “roughhousing” and not
sexual harassment. Id. at ¶¶ 22, 25. The plaintiffs also allege that wrestling team
coaches were present during each of the incidents. Id. at ¶¶ 23-30.
Nevertheless, on February 9, Starpoint informed the students “by ‘Notice of
Formal Complaint of Sexual Harassment Under Title IX’” that they had been accused of
sexual harassment. Id. at ¶¶ 16-17. The notices set a hearing date for the following
morning. Id.

truth of non-jurisdictional facts alleged in the complaint, but may consider materials
outside [] the complaint, such as documents attached to a notice of removal or a motion
to remand that convey information essential to the court’s jurisdictional analysis.”
Guzman v. First Chinese Presbyterian Cmty. Affs. Home Attendant Corp., 520 F. Supp.
3d 353, 356 (S.D.N.Y. 2021).
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At the hearing, Starpoint “provided no additional information in support of its
decision.” Id. at ¶ 19. In fact, Starpoint “did not explain how either [of the students]
posed an immediate physical threat to anyone.” Id. The students therefore “objected to
[their] removal” from school “and demanded that [Starpoint] explain how either [of them]
posed ‘an immediate threat to the physical safety’” of other students. Id.
Four days after the hearing, Dr. Croft “upheld the ‘Emergency Removal’ of [the
students] without stating any reason for the determination”; rather, he said only that he
“d[id] not find there to be sufficient grounds to reverse the initial determination.” Id. at ¶
38. Because of their removal from Starpoint, the students are not allowed to attend
school in person and are barred from school property. Id. at ¶ 1. Two weeks after Dr.
Croft upheld the removal, the plaintiffs filed their petition under C.P.L.R. Article 78 in
New York State Supreme Court, Niagara County. Docket Item 1-1.
LEGAL PRINCIPLES
Under 28 U.S.C. § 1441, a defendant may remove a case from state court if that
case “could have been brought originally in [federal] court.” See Freeman v. Burlington
Broads., Inc., 204 F.3d 311, 319 (2d Cir. 2000). “When, as here, there is no ‘diversity of
citizenship, federal[ ]question jurisdiction is required.’” Solomon v. St. Joseph Hosp., 62
F.4th 54, 60 (2d Cir. 2023) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)). “In a case removed to federal court from state court, the removal statute is to
be interpreted narrowly, and the burden is on the removing party to show that subject
matter jurisdiction exists and that removal was timely and proper.” Barone v. Bausch &
Lomb, Inc., 372 F. Supp. 3d 141, 146 (W.D.N.Y. 2019). “All doubts should be resolved

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against removability.” Winter v. Novartis Pharms. Corp., 39 F. Supp. 3d 348, 350
(E.D.N.Y. 2014) (citing Lupo v. Human Affs. Int’l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)).
DISCUSSION
I.

MOTION TO PROCEED BY PSEUDONYM
Immediately after the case was removed to this Court, the defendants moved to

seal the entire docket and all filings, citing the sensitive nature of the allegations and the
fact that the state court docket had been kept entirely under seal prior to removal. See
Docket Item 2. While the motion to seal was pending, the case remained under seal.
But this Court warned the parties that it did not believe that sealing the entire docket
and all filings was appropriate and asked for an explanation of why more targeted
restrictions—for example, redactions or anonymization—were inadequate to protect
privacy interests. See Docket Items 5, 8.
On April 3, 2023, this Court granted the motion to seal only in part and unsealed
the docket. See Docket Item 16. More specifically, this Court found that the First
Amendment and the common law presumption of access to judicial records required
public access both to the docket and to at least redacted versions of the filings. See id.
at 3. To account for the privacy interests implicated in the case, however, and after
weighing the ten factors in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir.
2008), this Court allowed the plaintiffs to proceed temporarily by pseudonym. See
Docket Item 16 at 6-9. Because the plaintiffs had not actually moved to proceed by
pseudonym, this Court ordered them to do so within two days if they wished to continue
to proceed anonymously. See id. at 10.

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The plaintiffs now have moved to proceed by pseudonym. Docket Item 26. That
motion does not add anything further to the analysis in this Court’s prior order,
presumably because the plaintiffs incorporate the Court’s analysis by reference. For
their part, the defendants “do not oppose” the plaintiffs’ request to proceed by
pseudonym. Docket Item 28 at 2.
In the absence of any opposition by the defendants, and for the reasons stated in
this Court’s prior order, Docket Item 16, the plaintiffs’ request to proceed by pseudonym
is granted.
II.

MOTION TO REMAND
“Congress has authorized the federal district courts to exercise original

jurisdiction in ‘all civil actions arising under the Constitution, laws, or treaties of the
United States.’” Gunn v. Minton, 568 U.S. 251, 257 (2013) (quoting 28 U.S.C. § 1331).
Generally, a case arises under federal law where the plaintiff’s “well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal law.”
Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S.
1, 27-28 (1983). By and large, “the plaintiff is the master of the complaint” and is “free
to avoid federal jurisdiction by pleading only state claims even where a federal claim is
also available.” Marcus v. AT&T Corp., 138 F.3d 46, 52 (2d Cir. 1998).
In this case, the plaintiffs have pleaded only a state law claim: they say that the
students’ removal from Starpoint High School was arbitrary and capricious and
therefore should be vacated under C.P.L.R. Article 78. See Docket Item 1-1. They do
not raise a standalone claim under Title IX, nor do they raise any claim under some
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other federal statute (for example, 42 U.S.C. § 1983). And because a plaintiff is “free to
avoid federal jurisdiction by pleading only state claims,” Marcus, 138 F.3d at 52, the
absence of a federal claim here normally would end the jurisdictional inquiry.
Nevertheless, the defendants argue that this Court has jurisdiction because the
plaintiffs’ petition necessarily raises an actually disputed, substantial federal issue that
can be resolved in this Court without disrupting the balance between state courts and
federal courts. 4 See Docket Item 14 at 6-9. And they argue that this Court also has
jurisdiction because of a Title IX regulation that explicitly preempts conflicting state laws.
See id. at 9. For the reasons that follow, neither of those arguments carries the day.
A.

The Plaintiffs’ Claims Do Not Raise a Substantial Federal Issue.

“In the mine run of cases, a suit arises under the law that creates the cause of
action.” Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1350 (2020) (alterations,
citation, and internal quotation marks omitted). But “in certain cases” where a plaintiff
has not asserted a federal cause of action, a claim nevertheless may arise under

The defendants also invoke the “artful-pleading” doctrine, a “corollary to the
well-pleaded[ ]complaint rule,” which “rests on the principle that a plaintiff may not
defeat federal subject[ ]matter jurisdiction by ‘artfully pleading’ his complaint as if it
arises under state law where the plaintiff’s suit is, in essence, based on federal law.”
Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005). “The precise scope of
the artful-pleading doctrine is not entirely clear,” see id. at 272 n.4, but the Second
Circuit has said that it applies in cases of complete preemption, see Romano v.
Kazacos, 609 F.3d 512, 519 (2d Cir. 2010), and has cited it in passing in cases
involving a substantial, disputed federal question, see NASDAQ OMX Grp., Inc. v. UBS
Secs., LLC, 770 F.3d 1010, 1019 (2d Cir. 2014) (briefly referring to the artful-pleading
doctrine before noting that “even in the absence of artful pleading, federal jurisdiction
may properly be exercised over . . . state claims that present significant, disputed issues
of federal law”). Because neither complete preemption nor the substantial federal
question doctrine supports removal here, the exact nature of the artful-pleading doctrine
is not dispositive.
4

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federal law “if the vindication of a state law right necessarily turns on a question of
federal law.” Fracasse v. People’s United Bank, 747 F.3d 141, 144 (2d Cir. 2014). That
narrower basis for jurisdiction, sometimes called the “substantial federal question
doctrine, [] recognizes that ‘in certain cases federal[ ]question jurisdiction will lie over
state[ ]law claims that implicate significant federal issues.’” In re Standard & Poor’s
Rating Agency Litig., 23 F. Supp. 3d 378, 393 (S.D.N.Y. 2014) (internal quotation marks
omitted) (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 312 (2005)).
“[T]he Supreme Court has been sparing in recognizing state law claims” that fall
within this category of federal question jurisdiction. NASDAQ OMX, 770 F.3d at 1019;
see also id. at 1024 (“signal[ing] caution in identifying the narrow category of state
claims over which federal jurisdiction may be exercised”). For a state law claim to fall
within this “special and small category,” see Gunn, 568 U.S. at 258 (citation and internal
quotation marks omitted), that claim must “necessarily raise a stated federal issue,
actually disputed and substantial, which a federal forum may entertain without disturbing
any congressionally approved balance of federal and state judicial responsibilities.”
Grable, 545 U.S. at 314. “That is, federal jurisdiction over a state law claim will lie if a
federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the federal-state balance
approved by Congress.” Gunn, 568 U.S. at 258. “Where all four of these requirements
are met, . . . jurisdiction is proper because there is a ‘serious federal interest in claiming
the advantages thought to be inherent in a federal forum,’ which can be vindicated

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without disrupting Congress’s intended division of labor between state and federal
courts.” Id. (citing Grable, 545 U.S. at 313).
According to the defendants, the plaintiffs’ Article 78 petition fits within this
“special and small” category because their claim that the students’ removal was
arbitrary and capricious turns exclusively on whether the defendants properly removed
the students from school under Title IX regulations. Docket Item 14 at 6-9. The
plaintiffs disagree, maintaining that their Article 78 petition “challenges the arbitrary and
capricious removal of [the students]” under state law and does not “alleg[e] the
existence of a legitimate federal issue.” Docket Item 7 at 77.
This Court assumes that the Title IX issue here—whether the Title IX provisions
governing emergency removal were validly invoked—is necessarily raised and actually
disputed. See Grable, 545 U.S. at 314. That is, the Court presumes that the first two
factors under Grable are satisfied because resolving whether the students’ removal was
arbitrary and capricious necessarily will require resolving a dispute about the application
of Title IX regulations.
As in Gunn, however, the defendants’ argument “founders on Grable’s next
requirement, [because] the federal issue in this case is not substantial in the relevant
sense.” Gunn, 568 U.S. at 260. For a federal issue raised in a state law claim to be
substantial, “it is not enough that the federal issue be significant to the particular parties
in the immediate suit; that will always be true when the state claim necessarily raises a
disputed federal issue.” Id. (emphasis in original) (alterations and internal quotation
marks omitted). Instead, “[t]he substantiality inquiry under Grable looks [] to the
importance of the issue to the federal system as a whole.” Id.

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The Supreme Court has found such a “substantial issue” in cases where the
dispute turned on “a nearly ‘pure issue of law’”; in other words, where the state law
claim raised a disputed federal issue “that could be settled once and for all and
thereafter would govern numerous [other] cases.” Empire Healthchoice Assurance, Inc.
v. McVeigh, 547 U.S. 677, 700 (2006) (quoting Richard H. Fallon, Jr., Daniel J. Meltzer
& David L. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System
65 (2005 Supp.)). For example, in Grable, the federal issue raised in that quiet title
action—the requirements for notice under a specific federal statute, see Grable, 545
U.S. at 314-16—was sufficiently substantial because “its resolution was both dispositive
of the case and would be controlling in numerous other cases.” Empire Healthchoice
Assurance, 547 U.S. at 700.
Here, by contrast, the plaintiffs’ Article 78 petition does not raise some
freestanding question of federal law that would have broader implications for numerous
subsequent cases. Instead, the plaintiffs’ claims challenge the specific factual basis for
the students’ removal from school—that is, whether the students in fact posed an
immediate threat to the physical health or safety of another student. So any Title IX
dispute therefore is inextricably tied to this removal of these particular students. That is
the sort of “fact-bound and situation-specific” dispute that is “poles apart from Grable”
and therefore is not a substantial federal issue. See id. at 700-01. And without a
substantial federal issue, this Court lacks federal question jurisdiction. See Gunn, 568
U.S. at 258.
Although the absence of a substantial federal issue means that Grable’s fourth
consideration is not dispositive, this Court addresses that consideration and concludes

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that “the appropriate balance of federal and state judicial responsibilities” likewise cuts
against jurisdiction here. See id. at 264 (citation and internal quotation marks omitted).
As the plaintiffs note, district courts in the Second Circuit have “routinely declined to
exercise supplemental jurisdiction over Article 78 claims” because of the “special
solicitude afforded to this purely state procedural remedy.” Maniscalco v. N.Y.C. Dep’t
of Educ., 563 F. Supp. 3d 33, 42 (E.D.N.Y. 2021) (citation and internal quotation marks
omitted); see also E. End Eruv Ass’n, Inc. v. Town of Southampton, 2014 WL 4826226,
at *18 (E.D.N.Y. Sept. 24, 2014) (“agree[ing] with the essentially unanimous position of
the New York federal district courts that the very nature of an Article 78 proceeding
presents [] compelling reasons” for declining to exercise supplemental jurisdiction
(alterations, citation, and internal quotation marks omitted)). Although this Court need
not, and does not, decide whether a federal court may ever exercise jurisdiction over an
Article 78 petition—a source of some dispute between the parties, compare Docket Item
7 at 77-79, with Docket Item 14 at 9-11—that overwhelming consensus of decisions
shows that at least in most cases, New York State courts are the appropriate tribunals
to hear Article 78 petitions.
For all those reasons, the plaintiffs’ claims in this case are not the sort that can
be “squeezed into the slim category Grable exemplifies.” Empire Healthchoice
Assurance, 547 U.S. at 701. So the defendants cannot show that this Court has subject
matter jurisdiction—and that removal therefore was proper—based on the substantial
federal question doctrine.

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B.

Preemption Is Not a Basis for Removal.

At oral argument, the defendants also invoked the preemptive effect of Title IX as
another basis for removal. “The complete preemption doctrine is an exception to the
well-pleaded complaint rule” and therefore offers a basis for removing what would
appear to be a state law claim. Whitehurst v. 1199SEIU United Healthcare Workers E.,
928 F.3d 201, 206 (2d Cir. 2019). “Complete preemption occurs when a federal statute
preempts and replaces all state[ ]law causes of action so a claim which comes within
the scope of that federal cause of action, even if pleaded in terms of state law, is in
reality based on federal law.” Solomon, 62 F.4th at 60 (alterations, citation, and internal
quotation marks omitted). “In those cases, ‘the pre-emptive force of a statute is so
extraordinary that it converts an ordinary state common-law complaint into one stating a
federal claim for purposes of the well-pleaded complaint rule.’” Id. (internal quotation
marks omitted) (quoting Caterpillar, 482 U.S. at 393).
Like the “special and small” category of jurisdiction under the substantial federal
question doctrine detailed above, jurisdiction based on complete preemption is “rare.”
Id. at 60 n.2. In fact, the Second Circuit surveyed the landscape earlier this year and
found only five instances when either the Supreme Court or the Second Circuit had
found that a federal statute completely preempted state law. See id. (listing those five
statutes: section 301 of the Labor Management Relations Act, section 502(a)(1)(B) of
the Employee Retirement Income Security Act, sections 85 and 86 of the National Bank
Act, section 408 of the Air Transportation Safety and System Stabilization Act, and
section 301 of the Copyright Act). Title IX was not among them. See id.
A look at the preemption provision that the defendants rely on, 34 C.F.R. §
106.6(h), shows why. That regulation provides that “[t]o the extent of a conflict between
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State or local law and [T]itle IX as implemented by [34 C.F.R.] §§ 106.30, 106.44, and
106.45, the obligation to comply with [sections] 106.30, 106.44, and 106.45 is not
obviated or alleviated by any State or local law.” 34 C.F.R. § 106.6(h) (emphasis
added). In other words, that provision simply reiterates the uncontroversial proposition
that federal law preempts conflicting state law.
But “[m]any federal statutes—far more than support complete preemption—will
support a defendant’s argument that because federal law preempts state law, the
defendant cannot be held liable under state law.” See Sullivan, 424 F.3d at 272-73.
And “[t]he Supreme Court has left no doubt[] that a plaintiff’s suit does not arise under
federal law”—and therefore cannot be removed from state court—“simply because the
defendant may raise the defense of ordinary preemption.” Id. at 273.
In this case, the defendants may argue that their decision to remove the students
should not be vacated under Article 78 because Starpoint and its administrators
complied with Title IX and its relevant regulations. And they might then argue that to the
extent that state law conflicts with Title IX, federal law controls. But “it is [] settled law
that a case may not be removed to federal court on the basis of a federal defense,
including the defense of pre-emption, even if the defense is anticipated in the plaintiff[s’]
complaint, and even if both parties concede that the federal defense is the only question
truly at issue.” Caterpillar, 482 U.S. at 393 (emphasis in original). So even if the
preemptive effect of Title IX might be relevant—indeed, even if it may be dispositive—at
some later stage of this case, it does not provide an independent basis for removal.

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III.

REQUEST FOR ATTORNEY’S FEES AND COSTS
For the reasons stated above, this Court lacks subject matter jurisdiction and

grants the plaintiffs’ motion to remand. The plaintiffs also request attorney’s fees and
costs on the grounds that there was “no objectively reasonable basis” to argue that the
plaintiffs’ claims arose under federal law and therefore that this case could be removed.
See Docket Item 7 at 79-80.
After granting a motion to remand, a district court “may require payment of just
costs and any actual expenses, including attorney[’s] fees, incurred as a result of the
removal.” 28 U.S.C. § 1447(c). “Section 1447(c) ‘affords a great deal of discretion and
flexibility to the district courts in fashioning awards of costs and fees.’” Farnum v.
Crown Equip. Corp., 2021 WL 2581266, at *5 (S.D.N.Y. June 23, 2021) (quoting
Morgan Guar. Tr. Co. of N.Y. v. Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992)).
But generally “courts may award attorney[’s] fees under [section] 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal.” Id.
(quoting Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005)).
Although this Court finds that removal based on federal question jurisdiction was
not proper here, it was not objectively unreasonable. The defendants raised colorable
arguments that the plaintiffs’ claims satisfied the Grable test, and the Supreme Court
itself has recognized the “general confusion on [the] question” of whether a particular
state law claim arises under federal law. See Gunn, 568 U.S. at 258. So while removal
here may have the unfortunate effect of delaying the resolution of the plaintiffs’ Article
78 petition, it was not unreasonable. The plaintiffs’ request for attorney’s fees and costs
therefore is denied.

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CONCLUSION
For the reasons stated above, the plaintiffs’ motion to remand, Docket Item 7,
and their motion to proceed by pseudonym, Docket Item 26, are GRANTED, but their
request for attorney’s fees and costs, Docket Item 7, is DENIED. The case is
REMANDED to New York State Supreme Court, Niagara County. The Clerk of the
Court shall close the case.

SO ORDERED.
Dated: April 10, 2023
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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