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December 10, 1985


The opinion of the court was delivered by: KRAM



On August 9, 1979, plaintiff filed charges with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC") alleging that defendant, Banco Real ("the Bank"), and the individual defendants had discriminated against her in the terms and conditions of her employment on the basis of her sex and national origin. One month later, the Bank discharged plaintiff, allegedly for wrongfully taking various confidential bank documents without authorization.

 On November 9, 1979, the Bank instituted a replevin action in New York Supreme Court to recover the documents allegedly taken and sought an order enjoining the plaintiff from disseminating these documents. Additionally, the Bank asserted five causes of action, based on state law, in connection with the documents: conversion, trespass, unfair competition, tortious interference with business and contractual relationships, and breach of fiduciary duty. Plaintiff denied taking these documents and asserted three counterclaims, also based on state law: intentional infliction of physical and emotional distress, defamation, and abuse of process.

 On November 13, 1979, plaintiff filed two additional charges with the EEOC, claiming that both her discharge and the initiation of the state replevin action were in retaliation for the exercise of her rights under the Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").

 On November 15, 1979, two days after filing her retaliation charges, plaintiff removed the replevin action to this Court pursuant to 28 U.S.C. §§ 1441, 1443(1). Defendants then moved to remand the replevin action. On January 21, 1980, Judge Abraham Sofaer granted defendants' motion and in a subsequent opinion, criticized the initial removal to federal court: "Irrespective of the merits of plaintiff's claims, removal was clearly inappropriate."(emphasis added). *fn1"

 Meanwhile, on November 26, 1979, while defendants' motion to remand was sub judice, plaintiff instituted the instant Title VII action in federal court. In her complaint, plaintiff alleged that the defendants discriminated against her on the basis of sex, national origin, and marital status, and unlawfully retaliated against her while she was employed because she filed discrimination charges. Plaintiff also claimed that in further retaliation, the Bank instituted the state action.

 In August, 1981, Judge Sofaer "So Ordered" a Stipulation and Order submitted by the parties which discontinued the state court action and provided that "the claims and counterclaims asserted in the state proceeding will be consolidated in this [federal] proceeding." There is no indication that the parties offered any reason why Judge Sofaer's initial finding that the federal court lacked subject-matter jurisdiction over the state court action should be reconsidered.

 Pending before this Court are two motions: plaintiff's motion for partial summary judgment on three of defendant's five counterclaims and both parties' motions for the imposition of sanctions.


 Before addressing the pending motions, this Court, sua sponte, requested that the parties brief the issue of whether the Court has subject-matter jurisdiction over the state law claims raised by both parties.

 After considering the briefs submitted by the parties, the Court concludes that subject-matter jurisdiction over the counterclaims interposed by the Bank does not exist, and thus, these claims should be dismissed. *fn2" Additionally, since plaintiff's state law claims were initially asserted solely in response to defendant's counterclaims, and since these claims do not arise out of a common nucleus of operative fact with plaintiff's Title VII claim, this Court declines to exercise pendent jurisdiction over plaintiff's state law claims.


 Fed. R. Civ. P. 13(a) requires a litigant to "state as a counterclaim any claim ... if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." Such counterclaims are denominated compulsory, and no independent basis of federal jurisdiction is needed for the court to adjudicate the ancillary issues thus raised, if the main claim ...

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