The opinion of the court was delivered by: Kram, District Judge.
This case concerns the proposed building of "Columbus
Center," a mixed-use redevelopment project involving retail,
office, cinema and residential space in Manhattan. The seller
of the site is the defendant Triborough Bridge and Tunnel
Authority ("TBTA"), and the developer is Boston Properties,
acting through defendant Coliseum Associates. The plaintiffs
are a number of neighborhood organizations and individuals who
challenge the project on six grounds, including two federal and
four pendent state causes of action.*fn1 Cross-motions for
summary judgment are currently pending before the Court.
However, defendants City of New York and its related agencies
(the "public defendants") have moved this Court for dismissal
of plaintiffs' Clean Air Act claim, and consequently the entire
action, in light of a recent Supreme Court opinion.
I. Dismissal of Clean Air Act Claim
The Clean Air Act requires that plaintiffs satisfy a
statutory 60-day notice period before filing suit.
42 U.S.C. § 7604(b).*fn2 Plaintiffs concede their failure to comply with
this requirement, having noticed the relevant parties only six
days before commencing suit. Recently, in Hallstrom v.
Tillamook County, ___ U.S. ___, 110 S.Ct. 304, 107 L.Ed.2d 237
(1989), the Supreme Court dismissed a long-standing lawsuit
because of plaintiffs' failure strictly to comply with an
identical 60-day notice period.*fn3 Accordingly, the public
defendants have moved this Court to dismiss plaintiffs' Clean
Air Act claims. This Court has considered the respective
parties' briefs and arguments on this question at conference.
Hallstrom held that RCRA's 60-day notice period was a
"mandatory, not optional, condition precedent for suit." ___
U.S. at ___, 110 S.Ct. at 309. On that ground the Supreme Court
dismissed, with leave to refile, a lawsuit that was seven years
old and had been litigated to judgment in the District Court
over the course of four years. ___ U.S. at ___, 110 S.Ct. at
This Court wishes to avoid subjecting its final judgment in
this case to a similar attack after protracted proceedings, as
occurred in Hallstrom. Such a result would be tremendously
inefficient. Therefore, this Court will dismiss plaintiffs'
Clean Air Act claim without prejudice. Because sixty days have
now passed since plaintiffs gave notice to the relevant
parties, plaintiffs may, and this Court is given to understand
that they will, refile immediately.
II. Dismissal of Pendent State Claims
The public defendants have further moved this Court, pursuant
to Fed.R.Civ.P. 12(h)(3), to dismiss the entire action for lack
of subject matter jurisdiction. They argue that Court's
dismissal of the Clean Air Act claim, coupled with plaintiffs'
abandonment of their only other federal cause of action, leaves
the pendent state claims without a federal jurisdictional
basis. The parties have conferenced this issue before the Court
and have submitted additional briefs on the subject.
During the briefing of the pending summary judgment motions,
plaintiffs conceded that they do not have standing to bring
their only other federal claim, purportedly arising from the
now-defunct Federal Housing Act of 1949. Consequently, the
public defendants argue that there is no longer a basis for
federal court jurisdiction, and that this Court must dismiss
the entire action, including the four pendent state claims,
The public defendants, along with the plaintiffs, are eager
for a final judgment which is not clouded by unresolved
jurisdictional problems.*fn4 Defendant Coliseum Associates, on
the other hand, seeks to persuade the Court that it can and
should retain jurisdiction over the four pendent state claims
even though it temporarily dismisses the Clean Air Act claim.
Their motivation for wishing the Court not to dismiss the
entire action is somewhat collateral to the issues presently
before the Court. Their contract with the City provides that
the closing on the property would be postponed until after the
final resolution of any litigation that might arise within four
months of the signing of the contract. The present action was
filed just two weeks before that four month period expired.
Therefore, if the Court dismisses with leave to refile, the
newly-refiled action will fall outside of this period and the
City could potentially move towards closing the transaction
without final disposition of this lawsuit. Coliseum Associates
naturally wishes to avoid this situation, whereas the
City would prefer to be free to go to closing.
Accordingly, Coliseum Associates argues that this Court has
discretion to retain jurisdiction over the pendent state claims
while plaintiffs refile their Clean Air Act claim, whereas the
public defendants maintain either that this Court has no such
discretion or that it should not exercise that discretion to
keep the state claims.
This Court takes no position on the question of whether it
has such discretion or not, because in either event it would
dismiss the entire case with leave to refile. On one hand, if
the federal claims are dismissed for lack of subject matter
jurisdiction, the state law claims must be dismissed as well.
Local Div. 732 v. M.A.R. T.A., 667 F.2d 1327, 1345 (11th Cir.
1982). On the other hand, if the federal claims are dismissed
for substantive reasons, for example on a summary judgment
motion, this Court has discretion to retain jurisdiction over
pendent state claims. Walker v. Time Life Films, Inc.,
784 F.2d 44, 53 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278,
90 L.Ed.2d 721 (1986). However, in the interest of comity, such
discretion is limited: the Second Circuit instructs that
"absent exceptional circumstances," where federal claims can be
disposed of on summary judgment grounds, courts should "abstain
from exercising pendent jurisdiction." Time Life Films, supra,
784 F.2d at 53. This Court itself has stated that dismissal
under these circumstances is "recommended." Kaplan v. Shapiro,
655 F. Supp. 336, 342 (S.D.N.Y. 1987). Factors to be considered
include (1) the length of time the matter has been pending
before the federal court; (2) the proximity of the trial date;
and (3) the predominance of issues of federal, as opposed to
local, concern. McLearn v. Cowen & Co., 660 F.2d 845 (2d Cir.
1981) (no federal district court jurisdiction where no trial
held, no substantial investment of time and energy on state law
issue, and state claim was not closely tied to questions of
It is not clear whether the Clean Air Act's 60-day notice
period is "jurisdictional"; the Hallstrom Court expressly
reserved that question in its opinion.*fn5 If it is, then
obviously this Court could not retain jurisdiction over the
pendent state claims after dismissal of the Clean Air Act
claim.*fn6 However, even if it is not, all of the
discretionary factors weigh in favor of dismissal of the
pendent state claims. The case is just at the beginning stages;
no trial date has been set, or indeed is even imminent; and the
state claims involve mostly municipal regulations, not
questions of federal policy. Coliseum Associates' arguments in
favor of this Court retaining jurisdiction over the pendent
state claims are merely efforts to secure a collateral
advantage in postponing ...