The opinion of the court was delivered by: Goettel, District Judge:
In New York, when a tenant fails to pay rent, the landlord
may bring a summary proceeding to regain possession of the
premises. The summary process is a statutory device designed
to achieve simple, expeditious and inexpensive resolution of
disputes over the right to possession of real property. When,
however, the defendant removes the proceeding to federal
court, complicated questions posed by the case's unique
posture prolong the proceeding so that speedy resolution is no
longer a possibility. Removal becomes a tactic which allows a
tenant to hold over without paying rent, successfully
nullifying the remedy summary process was intended to provide.
Gjon and Julie Dedaj leased two stores, occupying a total of
2,400 square feet, in a shopping center in Brewster, N.Y.,
with the intent of operating an Italian Restaurant/Pizzeria
which could serve 100 customers at a time. Because the
premises were still under construction, the lease contained
specific provisions imposing upon the landlord the duty to
supply the restaurant with adequate septic, sewer and plumbing
systems. The landlord was aware of the number of customers
intended to be serviced.
The business opened in September 1990 but an inspection by
the local health authorities in October revealed that the
sewage and septic system could not accommodate more than 34
customers at a time and defendants were ordered to limit their
service. They stopped paying rent in December 1990.
Any civil action brought in a state court of which the
federal courts have original jurisdiction may be removed by
the defendant to the proper district court of the United
States. 28 U.S.C. § 1441(a). If no federal cause of action is
stated in the complaint, then diversity jurisdiction must be
satisfied, 28 U.S.C. § 1332, but the action is removable only
if the defendant is not a citizen of the state in which such
action was brought, 28 U.S.C. § 1441(b). We will assume that
the conditions of diversity jurisdiction are satisfied here
because although the restaurant is located in New York,
defendants are citizens of Connecticut, plaintiff is a New York
citizen, and the amount in controversy is alleged to exceed
Even if diversity jurisdiction exists, removal is proper
only if the court had original jurisdiction of the matter.
Removal acts to the prejudice of state court jurisdiction and
the privilege, therefore, is to be strictly construed. This
court must necessarily extend its inquiry to examine whether
any other factors in the case would have precluded the suit
from originally being brought in federal court. If such
factors exist, diversity jurisdiction notwithstanding, the
case was not properly removed.
Our inquiry begins with a consideration of the conflict
arising from federal procedural rules and the special
procedures followed in New York summary process cases. In
diversity cases the federal court applies the substantive law
of the forum state but the federal laws governing procedure.
See, e.g., Burlington Northern Railroad v. Woods, 480 U.S. 1,
107 S.Ct. 967, 94 L.Ed.2d 1 (1987); Hanna v. Plumer,
380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Uniformity of
procedure in federal courts ensures consistent results
throughout the federal judiciary and protects the unique nature
of the federal forums. The Federal Rules of Civil Procedure,
intended "to secure the just, speedy, and inexpensive
determination of every action", Fed.R.Civ.P. 1, govern all
suits of a civil nature even if the civil action has been
removed to the district court from state courts. Fed.R.Civ.P.
81(c). The Federal Rules of Civil Procedure provide the normal
course for beginning, conducting and determining controversies.
A summary process by its very nature is intended to escape
some or most of these
trial procedures and differs greatly from the plenary civil
trials governed by the federal rules. New Hampshire Fire Ins.
Co. v. Scanlon, 362 U.S. 404, 406, 80 S.Ct. 843, 845, 4 L.Ed.2d
826 (1960). For example, the summary process in New York is
based on petition, N.Y.R.P.A.P.L. § 731, and may proceed
without formal pleadings, N.Y.R.P.A.P.L. § 732. Moreover, short
time notice of hearing is fixed by the court. Id. The summary
process rules contain no provision for discovery. In contrast,
the Federal Rules of Civil Procedure require service of a
summons and complaint and formal pleadings, do not provide for
short notice of hearing, and contain detailed provisions for
discovery and motions to accelerate judgment on the merits.
It is obvious that a summary process and a plenary civil
trial, shaped by the federal rules, are very different. In
light of Hanna v. Plumer and progeny, unless there is express
statutory authorization, New Hampshire Fire Ins., 362 U.S. at
407, 80 S.Ct. at 845, or compelling reasons, Securities &
Exchange Comm'n v. Wencke, 783 F.2d 829 (9th Cir.)(allowing
post-judgment summary proceedings to prevent further
dissipation of defrauded investors' assets), cert. denied sub
nom., DeLusignan v. Gould, 479 U.S. 818, 107 S.Ct. 77, 93
L.Ed.2d 33 (1986), a federal court cannot allow proceedings
more summary than the full court trial at common law. See
United States v. Powell, 379 U.S. 48, 58 n. 18, 85 S.Ct. 248,
255 n. 18, 13 L.Ed.2d 112 (1964); Application of Howard,
325 F.2d 917, 919 (3d Cir. 1963) (summary procedure may not be
substituted for plenary action except in those special
situations in which federal practice permits summary procedure
for adjudication of matter ancillary to pending judicial
proceeding); Daly v. United States, 393 F.2d 873, 875 (8th Cir.
1968). No authorization for summary adjudication of
landlord/tenant disputes is provided in the federal rules of
procedure nor in any other statute governing procedure in the
district court. We are unaware of any instance in which a
proceeding of this sort has been successfully removed to
federal court. Thus, the summary process filed by plaintiff
could not have been brought here originally and as such, this
court lacks subject matter jurisdiction. We find, therefore,
that removal was improper and remand the case to the Justice
Court for the Town of Southeast.
Alternatively, the doctrine of abstention dictates remand.
Naylor v. Case and McGrath, Inc., 585 F.2d 557 (2d Cir. 1978);
see IMFC Professional Services of Florida, Inc. v. Latin
American Home Health, Inc., 676 F.2d 152, 160 (5th Cir. 1982).
Landlord/tenant disputes concerning failure to pay rent and
compliance with local health ordinances do not implicate, in
any way, federal rights. Moreover, the state of New York has,
through its legislature and its courts, developed a system of
administering its law governing possession of real estate which
is both fair and efficient. Where state court adjudication of a
dispute based upon predominantly local factors is available to
the parties, intervention of a federal court is not necessary,
particularly when no federal right is at risk. Alabama Public
Serv. Comm'n v. Southern Railway Co., 341 U.S. 341, 349, 71
S.Ct. 762, 768, 95 L.Ed. 1002 (1951). It is in the local forum
that matters such as landlord/tenant problems are best
litigated. See Tonwal Realties, Inc. v. Beame, 406 F. Supp. 363
(S.D.N.Y. 1976) (abstaining in suit concerning rent control
because the state courts were the proper tribunal to construe
state rent statutes).
In addition, the law of landlord/tenant relations is
strongly grounded in public policy. "It is in the public
interest that federal courts of equity should exercise their
discretionary power to grant or withhold relief so as to avoid
needless obstruction of the domestic policy of the states."
Alabama Public Serv. Comm'n, 341 U.S. at 351, 71 S.Ct. at 769
(quoting Great Lakes Dredge & Dock Co. v. Huffman,
319 U.S. 293, 298, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943)). While the
questions of state law presented in this case are not novel,
the fact remains that landlord/tenant law is continually
evolving and to a certain extent is unsettled in this state.
Compare 40 Associates, Inc. v. Katz, 112 Misc.2d 215, 446
N YS.2d 844, 845 (Civ.Ct. 1981) (extending
warranty of fitness for habitability to commercial properties
on the basis that the modern commercial tenant has right to
expect more than the delivery of possession) to Bomze v. Jaybee
Photo Suppliers, Inc., 117 Misc.2d 957, 460 N.Y.S.2d 862, 863
(App. T. 1st Dep't 1983) (declining to extend warranty of
fitness to commercial property). Thus, it may well be that this
court can only forecast what New York courts would do in this
matter rather than definitively state what the law is.
"Abstention in favor of state court adjudication is sound
judicial administration where . . . it can increase the
assurance that all those affected by the [law] will be given
the benefit of an authoritative and uniform rule of law."
Naylor v. Case & McGrath, 585 F.2d at 565. The New York state
courts are filled with thousands of summary eviction
proceedings. In ...