Opinion
01 Civ. 7774 (HB)
March 20, 2002
OPINION ORDER
New York City Department of Corrections et al. ("City") moves to remand Article 78 petition of Jose Heredia ("Plaintiff") to state court pursuant to 28 U.S.C. § 1447(c) on the ground that this Court lacks subject matter jurisdiction over Plaintiff's complaint. On October 12, 2001, I entered judgment for the City dismissing Plaintiff's complaint without prejudice. However, on December 4, 2001, I entered an order vacating my earlier dismissal and reopening the case, at which point the City moved to remand Plaintiff's petition to state court. For the reasons stated in detail below, the City's motion is granted.
That statute provides, in relevant part' "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
BACKGROUND
On June 17, 1999, Administrative Law Judge Christen recommended that Plaintiff be dismissed from the City's Department of Corrections following a hearing conducted pursuant to Civil Service Law Section 75. On April 12, 2001, the New York City Civil Service Commission affirmed that decision. Consequently, on July 18, 2001 Plaintiff filed an Article 78 petition in state court under N.Y. C.P.L.R. § 7804 to appeal that decision. However, on July 28, 2001, Plaintiff amended his petition by naming Congressman Jose Serrano as a defendant, who immediately removed the case to federal court pursuant to 28 U.S.C. § 1442(a)(1) (4) and who was immediately dismissed from the case. Because the federal party that allowed for removal of this case to federal court has been dismissed, the City now moves to remand Plaintiff's complaint to state court pursuant to 28 U.S.C. § 1447(c) on the ground that this Court lacks subject matter jurisdiction over Plaintiff's appeal.
That statute provides, in relevant part, "A proceeding under [Article 78] shall be brought in the supreme court in the county specified in subdivision (b) of section 506 except as that subdivision otherwise provides."
That statute provides, in relevant part,
A civil action . . . commenced in a State court against any of the following may be removed by them to the district court of the United States . . . (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof. . . . (4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.
DISCUSSION
On a motion to remand, the party seeking to sustain removal from state to federal court must shoulder the burden of demonstrating that removal was proper. Hodges v. Demchuk, 866 F. Supp. 730, 732 (S.D.N.Y. 1994). If that party fails to sustain this burden, then the case must be remanded back to state court. Bellido-Sullivan v. Am. Int'l Group, Inc., 123 F. Supp.2d 161, 163 (S.D.N.Y. 2000). Furthermore, "[w]hen the federal party is eliminated shortly after removal and there has been "no substantial commitment of judicial resources' to the remaining state-law claims, remand to the state court is clearly warranted." Tones v. CBS News, 879 F. Supp. 309, 321 (S.D.N Y 1995), quoting 805 Third Ave. Co. v. Excel Mktg. Enters. Corp., Nos. 85 Civ. 5205 (CSH), 85 Civ. 7030 (CSH) 85 Civ. 7031 (CSH), 1987 WL 12822, at *5 (S.D.N Y June 18, 1987). Finally, unless a federal question appears on the face of plaintiff's well-pleaded complaint, then removal is generally improper.Bellido-Sullivan, 123 F. Supp.2d at 163.
Plaintiff in this case has failed to sustain his burden of demonstrating that removal of his Article 78 petition to federal court was proper. Although Plaintiff provided for removal to this Court pursuant to 28 U.S.C. § 1447(c) when he named Congressman Jose Serrano as a defendant, he failed to sustain removal once Congressman Serrano was dismissed from the case. In addition, Plaintiff has failed to demonstrate that a "substantial commitment of judicial resources" were expended on the remaining nonfederal claims, thus justifying retention in the federal court. Finally, Plaintiff has failed to allege facts in his petition to support a federal claim. Accordingly, the City's motion to remand Plaintiff's Article 78 petition to state court is granted.
CONCLUSION
For the foregoing reasons, the City's motion to remand Plaintiff's Article 78 petition to state court is granted, and the clerk of the court is instructed to remove this case from my docket.