Opinion
01 CIV. 2736 (DLC)
March 18, 2002
Neil Gronowetter, Law Offices of Tom Stickel, Bronx, New York, For Plaintiff.
Arthur J. Robb, Clifton Budd DeMaria, LLP, New York, NY, For Defendant Flintlock Construction.
MEMORANDUM OPINION AND ORDER
Plaintiff Norma Varela ("Varela") brought this action for employment discrimination against defendants Flintlock Construction, Inc. ("Flintlock"), Andrew Weiss ("Weiss") and Gregory Steck ("Steck"). Because all federal claims in the action have been dismissed, the plaintiff now requests that this Court decline to exercise supplemental jurisdiction and remand the action to state court. For the reasons that follow, the plaintiff's motion is granted.
BACKGROUND
Varela first filed this action in New York State Supreme Court, Bronx County, in June of 1994, alleging that defendants Flintlock and Steck sexually harassed her, unlawfully discharged her, and discriminated against her on the basis of gender and race, in violation of federal and state law. Plaintiff filed an amended complaint on March 7, 2001, in which she added additional causes of action under state law, and named Weiss as a defendant.
Weiss removed the action to this Court on March 30, 2001. By request of the plaintiff, all causes of action against defendant Weiss were subsequently dismissed with prejudice. After Flintlock filed a motion for judgment on the pleadings, the plaintiff consented to the dismissal of her only federal law claim. With the dismissal of this claim, and in the absence of diversity jurisdiction, this Court exercised supplemental jurisdiction over the remaining state law claims in order to decide Flintlock's pending motion to dismiss. The motion for judgment on the pleadings was denied on February 13, 2002.
On June 26, 2001, this Court denied plaintiff's motion to remand the action to state court, concluding that the removal petition was timely. Varela v. Flintlock Constr., Inc., 148 F. Supp.2d 297 (S.D.N.Y. 2001).
On March 5, 2002, Flintlock's motion for reconsideration of this decision was granted for the limited purpose of clarification.
Thereafter, the parties were invited to address whether this Court should continue to exercise supplemental jurisdiction over the remaining state law claims or remand the action.
DISCUSSION
Where no federal claims remain in an action, and diversity jurisdiction is lacking, a district court is not required to retain jurisdiction of remaining state law claims. 28 U.S.C. § 1367(c)(3); Rocco v. New York State Teamsters Conference Pension Retirement Fund, 281 F.3d 62, 72 (2d Cir. 2002). A district court may, however, "at its discretion, exercise supplemental jurisdiction over state law claims even where it has dismissed all claims over which it had original jurisdiction." Parker v. Della Rocco, 252 F.3d 663, 666 (2d Cir. 2001) (citation omitted).
"In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well." Marcus v. ATT Corp., 138 F.3d 46, 57 (2d Cir. 1998) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994)); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.").
The court must "consider and weigh in each case, at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity" in order to decide whether to exercise jurisdiction over pendent claims. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 445 (2d Cir. 1998) (quoting Carnegie-Mellon, 484 U.S. at 350); see also Mauro v. Southern New England Telecomm., Inc., 208 F.3d 384, 388 (2d Cir. 2000). Where an action commenced in state court was properly removed to a federal district court, the district court has discretion to remand the case to state court when all federal law claims in the action have been eliminated and only state law claims remain. Carnegie-Mellon, 484 U.S. at 357.
It is proper to decline to exercise supplemental jurisdiction over the remaining state law claims in this action, and to remand the action to state court for further proceedings.
It is true that discovery in this action has been completed, with the exception of one outstanding and disputed request, and the parties have participated unsuccessfully in settlement discussions with a magistrate judge. Nonetheless, this Court has had no involvement with the merits of the claims, having concluded only that removal was proper and that the remaining allegations in the complaint are sufficient to withstand dismissal. There are no pending motions and the case has not progressed to trial. Judicial economy does not, therefore, weigh in favor of retaining jurisdiction. This forum and the state forum are equally convenient to the parties. While issues of fairness do not predominate in this decision, the plaintiff urges that she be allowed to return to her chosen forum now that there is no independent basis for federal jurisdiction. Comity also favors a remand, since the remaining claims are entirely state law claims and one of them — the conspiracy claim — raises a legal issue which does not appear to have been resolved by state courts, to wit, whether the predicate for a state law civil conspiracy claim can be a statutory as opposed to a common law cause of action.
The plaintiff contends that she has not yet received a response to her request for information as to whether any similarly situated employees kept their jobs. Flintlock contends that it has "provided all responsive documents it is able to produce."
Flintlock cites to Admin. Comm. of the Time Warner, Inc. Benefit Plans v. Biscardi, No. 99 Civ. 12270 (DLC), 2001 WL 392645 (S.D.N.Y. April 17, 2001), in which this Court exercised supplemental jurisdiction over remaining state law claims after the dismissal of all federal claims. In Biscardi, however, a fully briefed summary judgment motion was pending. There is no unresolved motion pending before this Court. Flintlock expresses concern that years might pass before a trial date is set in state court, while there will be no delay in bringing this case to trial in federal court, and suggests that it will likely forego the filing of a summary judgment motion if the case remains in federal court. These reasons are not sufficient to cause this Court, in a case in which it has had minimal involvement with the merits of the action, to exercise its discretion to retain jurisdiction.
CONCLUSION
The motion to remand is granted. The Clerk of Court shall remand the case to the New York State Supreme Court, Bronx County.
SO ORDERED.