issue since plaintiff's request for permission to appeal the
First Department's decision was denied on the ground that
plaintiff had waived any right to seek such an appeal.
As one court recently recognized, a federal district court
"need not mechanically apply [the Carter-Wallace] outcome to
the instant facts" since "`[d]ecisions rendered by lower
intermediate courts are not controlling on federal courts
construing state law when, as here, the state's highest court
has not ruled on the issue.'" Olsen v. Citibank, supra, at p.
2, quoting, Commissioner v. Estate of Bosch, 387 U.S. 456, 465,
87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967). See also Calvin
Klein Ltd. v. Trylon Trucking Corp., 892 F.2d 191, 195 (2d Cir.
1989) ("Absent a rule of decision formulated by the New York
Court of Appeals, we are not bound by the opinions issued by
the state's lower courts"), citing, Plummer v. Lederle Labs.,
819 F.2d 349, 355 (2d Cir.), cert. denied, 484 U.S. 898, 108
S.Ct. 232, 98 L.Ed.2d 191 (1987).
Generally, where the state's highest court has not addressed
the relevant issue, a federal district court's function is to
sit as a state court and attempt to determine how the New York
Court of Appeals would decide the merits of the issue. In re
Joint Eastern & Southern Dist. New York Asbestos Litigation,
897 F.2d 626, 636 (2d Cir. 1990).
Were this Court to decide the issue as an original matter, it
would be reluctant to follow those cases which have concluded
that a state cause of action under the Human Rights Law may
exist in federal court even though the plaintiff would have no
cause of action in state court. The statute provides that "an
aggrieved party shall have a cause of action in any court . .
. unless such person filed a complaint with the State Division
of Human Rights." § 297(9) (emphasis added). If, as
Carter-Wallace holds, it makes no difference under the statute
"whether [the] filing was made by the grievant himself or the
EEOC for him" (541 N.Y.S.2d at 783), the plaintiff has "no
cause of action." Thus, it is hard to rationalize the holding
of Carter-Wallace with its statement, "What effect this ruling
might have on a federal court's decision to exercise pendent
jurisdiction over a Human Rights Law claim we cannot say." 541
N YS.2d at 783. The issue is not one of pendent jurisdiction;
the issue is whether a state cause of action exists.
The Supreme Court in United Mine Workers v. Gibbs, supra,
listed, as one of the factors that a district court should
consider in determining whether to exercise pendent
jurisdiction, whether the state claims present unsettled issues
of state law such that comity would counsel leaving the
decision to the state courts. Id. at 726-27, 86 S.Ct. at
In light of the confusion created by Scott v. Carter-Wallace,
it appears appropriate to allow plaintiff to pursue the Human
Rights Law claim in the state courts and hopefully obtain a
resolution by the New York Court of Appeals which will know
that at least one federal court is prepared to hold that if a
state cause of action does not exist in the state courts, it
does not exist at all. See Fay v. South Colonie Central School
District, 802 F.2d 21, 34 (2d Cir. 1986); Independent Bankers
Ass'n v. Marine Midland Bank, N.A., 757 F.2d 453, 463-65 (2d
Cir. 1985), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91
L.Ed.2d 554 (1986).
Standing alone, this unsettled issue of state law may not
have necessarily prevented the Court from exercising pendent
jurisdiction. However, the Court finds dismissal of plaintiff's
state law claims appropriate when this unsettled state law
issue is coupled with the fact that the remedies plaintiff
seeks under her state law claims would, as previously
discussed, complicate a relatively straight forward employment
discrimination case and lead to possible jury confusion and
prejudice to the defendants.
Accordingly, the Court declines to exercise its discretion to
retain pendent jurisdiction over all of plaintiff's state law
claims. Given this decision, the Court need not address
defendants' Rule 12(b)(6) attack on the sufficiency of
plaintiff's slander, libel and harassment claims.
Defendants' Rule 12(b)(1) motion to dismiss plaintiff's state
law claims is granted. As the Court directed at oral argument
held before the undersigned on June 14, 1991, the parties are
ORDERED to complete discovery on plaintiff's remaining claims
by September 30, 1991. A Joint Pre-Trial Order shall be
submitted by the parties on or before October 31, 1991.
Following the Court's review of the Pre-Trial Order, a final
Pre-Trial Conference will be scheduled.