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HERRMANN v. BROOKLYN LAW SCH.

June 30, 1976

William S. Herrmann, Jr., For a Judgment Pursuant to Article 78 CPLR of the State of New York, Plaintiff-Petitioner,
v.
Brooklyn Law School, Defendant-Respondent.



The opinion of the court was delivered by: MISHLER

Honorable Jacob Mishler, Chief Judge

MISHLER, CH. J.

 Defendant moves to dismiss the complaint on the ground that the court lacks subject matter jurisdiction, F.R.C.P. 12(b)(1). *fn1"

 For the purposes of this motion, the court assumes the material allegations of the complaint to be true.

 THE COMPLAINT

 The lengthy complaint (consisting of more than thirty pages (99 paragraphs)), in addition to thirty pages of exhibits, seeks review of the proceedings *fn2" conducted by the faculty of the Brooklyn Law School and the final determination made by the law school's Board of Trustees on September 17, 1975, dismissing plaintiff as a member of the faculty of the law school and revoking his appointment as a tenured professor of law. The complaint charges that the determination was arbitrary and capricious and not supported by substantial evidence, and that the procedures employed in the hearings contravened the regulations of the law school and the criteria, standards, and policies of the Association of American Law Schools relating to dismissal of tenured faculty members and violated plaintiff's constitutional right to administrative due process. *fn3"

 Plaintiff invokes the jurisdiction of this court by reason of diversity of citizenship and his claim for damages in excess of $10,000, i.e., loss of compensation at the annual rate of $33,000, and his loss of tenured status and reputation in the legal and educational communities in the amount of $1,000,000.

 Defendant bases its challenge to this court's jurisdiction on the claim that the federal court is without power to issue a writ of mandamus where a jurisdictional ground is not otherwise asserted. The cases cited in defendant's supporting memorandum, i.e., Rosenbaum v. Bauer, 120 U.S. 450, 7 S. Ct. 633, 30 L. Ed. 743 (1887), and United States ex rel. Vassel v. Durning, 152 F.2d 455 (2d Cir. 1945) support this view. *fn4" The weakness in defendant's argument is its failure to recognize that plaintiff has asserted diversity jurisdiction under 28 U.S.C. § 1332, and seeks mandamus as relief ancillary to damages. Plaintiff seeks review of the procedures employed by the law school resulting in his dismissal. Plaintiff's request for the direction to be restored to his professorship can be satisfied by mandatory injunction, Stern v. South Chester Tube Co., supra. His prayer for mandamus is not fatal. The label of the relief is unimportant.

 The question posed by this attack on jurisdiction is whether the court should decline jurisdiction despite plaintiff's compliance with the jurisdictional requirements of 28 U.S.C. § 1332. Plaintiff claims his right to litigate his claim in the federal court is absolute. However, case law has limited diversity jurisdiction in some instances, including matrimonial matters, proceedings involving the parent-child relationship, probate proceedings and adoption proceedings. The analysis in these cases bears on plaintiff's right to proceed here.

 Matrimonial matters and actions and proceedings involving the parent-child relationship were considered matters reserved for the states. Mr. Justice Holmes in Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384, 50 S. Ct. 154, 155, 74 L. Ed. 489 (1930), cited the basis for declining jurisdiction in domestic relations matters on the ground that historically, they were not matters "of a civil nature at common law or in equity" being within the competence of the ecclesiastical courts. Judge Friendly, writing for the court in Phillips, Nizer, Benjamin, Krim and Ballon v. Rosenstiel, 490 F.2d 509, 516 (2d Cir. 1973), pointed to the strong interest and the well-developed competence of state courts as an additional reason for abstention. In Kamhi v. Cohen, 512 F.2d 1051 (2d Cir. 1975), the action sought to enjoin a state court appointed receiver from seizing the husband's property. The proceeding in which the receiver was appointed was supplementary to the divorce action. The federal court abstained, indicating that plaintiff should pursue available state remedies. The court in Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975), taking note of related state court litigation, declined jurisdiction over a case arising out of a separation agreement involving claims of support for a child and the father's right of visitation. The court indicated it would assume jurisdiction where there was no history of litigation of related issues in the state court and ". one court system off against the other . . . ." Id. at 1025.

 Federal courts will also decline jurisdiction in probate proceedings where the estate is under the control of the probate court, 13 C.Wright, A. Miller, E. Cooper, Federal Practice and Procedure, § 3610 (1975), or where the federal court judgment would affect the state court determination, Bassler v. Arrowood, 500 F.2d 138 (8th Cir. 1974).

 The court's research uncovered only one case where diversity jurisdiction was assumed on a claim seeking review of a determination, with a prayer for mandamus relief. In Sleeth v. Dairy Products Company of Uniontown, 228 F.2d 165 (4th Cir. 1955), cert. denied, 351 U.S. 966, 76 S. Ct. 1031, 100 L. Ed. 1485 (1956), plaintiff, asserting diversity jurisdiction, sought review of a determination by a state health official who had refused to issue a permit for the distribution of milk on the ground that plaintiff failed to met federally approved standards. The court found no abuse of discretion and dismissed the petition. *fn5" In Stern v. South Chester Tube Co., supra, the granting of a writ of mandamus directing a Pennsylvania corporation to permit a New York stockholder to examine corporate records was an order to perform a purely ministerial duty, consistent with the common law definition of mandamus, albeit against a non-governmental agency. The proceeding in the case at bar is significantly different. It would require this court to delve into the policies and structure of the law school and inquire into the good faith of the plaintiff and the various members of the faculty who have exchanged charges, in addition to inquiring into the procedures employed to determine whether they complied with the law school's regulations and with administrative due process. Actions are presently pending in the state court which present some of the very issues in this proceeding. On April 2, 1973, plaintiff instituted an action in the state court against Professor Joseph Crea charging slander. On July 18, 1975, plaintiff instituted an action against the law school, the dean and two (2) professors, for an injunction restraining defendants from taking an action affecting his tenure, stating and seeking damages in the amount of $1,000,000. *fn6"

 NATURE OF ARTICLE 78 PROCEEDING

 Article 78 of the CPLR (N.Y. CPLR §§ 7801 to 7806) re-enacts Article 78 of the Civil Practice Act. Relief under this article was "previously obtained by writs of certiorari to review, mandamus, or prohibition . . . ." N.Y. CPLR § 7801 (McKinney 1963). It provides for a special proceeding for the judicial review of action by "every court, tribunal, board, corporation, officer, or other person, or aggregation of persons . . .", N.Y. CPLR § 7802(a)(McKinney 1963). It was enacted to simplify the procedure with regard to certiorari, mandamus, and prohibition and eliminate technical problems arising from distinctions between the remedies in granting relief where the petitioner showed he was entitled to some form of relief. Newbrand v. City of Yonkers, 285 N.Y. 164, 33 N.E.2d 75 (1941); Davidson v. Common Council of City of White Plains, 40 ...


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