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NORMAN v. CUOMO

June 15, 1992

CLARENCE E. NORMAN, JR., ANGELO DEL TORO, DAVID F. GANTT, THE NEW YORK STATE ASSEMBLY and SAUL WEPRIN, Plaintiffs,
v.
MARIO M. CUOMO, STAN LUNDINE, THE FUND FOR ACCURATE AND INFORMED REPRESENTATION, INC., JUAN DE SANCTIS, AUGUSTINE C. CHEN, ONEL AFARI, AURELIA GREENE, and JAMES F. BRENNAN, Defendants.



Per Curiam

 PER CURIAM

 Before the court is yet another lawsuit prompted by New York State's recent legislation setting forth new state Assembly and Senate district boundaries. See 1992 N.Y. Laws ch. 76-78. The controversial legislation has thus far supplied the impetus for at least five separate lawsuits, three of which (including the instant suit) have been assigned to this three-judge panel. See Fund for Accurate and Informed Representation, Inc. v. Weprin, No. 92-CV-283 (N.D.N.Y.) (filed Mar. 3, 1992) (the "F.A.I.R. " action) (challenge limited to the apportionment of Assembly seats only); Scaringe v. Marino, 92-CV-593 (N.D.N.Y.) (filed May 7, 1992) (Senate and Assembly seats); Wolpoff v. Cuomo, No. 14757-1992 (N.Y. Sup. Ct., Bronx Cty.) (filed May 8, 1992) (Senate apportionment); *fn1" Dixon v. Cuomo, No. 13266/92 (N.Y. Sup. Ct., N.Y. Cty.) (filed May 14, 1992) (Senate apportionment). The partisan battle comes before the court today on plaintiffs' motion to remand this case to New York State Supreme Court and defendants' motion to consolidate this action with F.A.I.R. For the reasons discussed herein, plaintiffs' motion to remand is denied and defendants' motion to consolidate is granted. In addition, the court sua sponte dismisses all of plaintiffs' claims arising under state law.

 I.

 Plaintiffs commenced this declaratory judgment action in New York State Supreme Court, Kings County, on April 22, 1992, seeking a declaration that the state's newly-enacted Assembly reapportionment plan (hereinafter the "plan") comports with the Fourteenth and Fifteenth Amendments to the United States Constitution, the federal Voting Rights Act, and the New York State Constitution. Defendants subsequently removed the case to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. §§ 1441, 1443, 1446 (1988 & West Supp. 1992). After removing the case, defendants moved to transfer venue to this district, where this three-judge court had already been empaneled in a suit involving nearly identical issues between many of the same parties. See Fund for Accurate and Informed Representation, Inc. v. Weprin, No. 92-CV-283. Perhaps coincidentally, on the same day that defendants moved to transfer, plaintiffs filed a motion to remand the case to state supreme court pursuant to 28 U.S.C. § 1447(c) (1988). On March 28, 1992, Judge Nickerson of the Eastern District of New York reserved decision on that remand motion and, over plaintiffs' objection, granted defendants' motion to transfer the case to this district. *fn2"

 Significantly, resolution of the issues presented turns in large part upon the interplay between this action and the F.A.I.R. action. As will become increasingly apparent, F.A.I.R. and the present action, with one significant exception (discussed infra), are mirror images of each other. The plaintiffs in F.A.I.R. allege that the Assembly is not presently apportioned -- nor is the newly-enacted plan apportioned -- in compliance with the United States Constitution, the Federal Civil Rights Act, and the Voting Rights Act of 1965. See Memorandum-Decision and Order, Fund for Accurate and informed Representation, Inc. v. Weprin, No. 92-CV-283 (N.D.N.Y. May 28, 1992) (per curiam). The plaintiffs in F.A.I.R. ask the court (1) to enjoin the defendants from administering or supervising Assembly elections in the Assembly districts as presently apportioned, and (2) to redistrict the New York State Assembly in a manner that satisfies federal constitutional and statutory requirements. It is important to note that the plaintiffs therein do not allege that the district lines violate New York State constitutional or statutory law. After various procedural modifications and rulings by this court, the F.A.I.R. action is now driven by plaintiff's third-amended complaint.

 In addition to the obvious similarity of issues, a review of the roster of parties reveals just how intertwined these two suits really are. There are eight defendants in the present case, *fn3" four of the whom, i.e. De Sanctis, Chen, Alfaro, and The Fund for Accurate and Informed Representation, Inc. (collectively "F.A.I.R."), are plaintiffs in the F.A.I.R. action. In their answer, these four defendants acknowledge their belief that the reapportionment plan is infirm on both state and federal grounds, but do not assert counterclaims. Of the four remaining defendants, two, i.e. New York Governor Cuomo and Lt. Governor Lundine, are also defendants in the F.A.I.R. action. The last two defendants, Greene and Brennan, are members of the New York State Assembly. In other words, the four "non-F.A.I.R." defendants (Cuomo, Lundine, Greene and Brennan) are members of the political apparatus which promulgated the apportionment plan at issue in this litigation.

 On May 19, 1992, with this case still pending in state supreme court, F.A.I.R. -- including defendants De Sanctis, Chen, and Alfaro -- filed a petition of removal to federal court. The non-F.A.I.R. defendants did not join the removal; in fact, Cuomo, Lundine, and Greene have actually expressed their opposition to the removal. Chill Aff. (5/20/92) at P17. The procedural posture that has emerged can be most succinctly summarized as follows: Four defendants, those collectively referred to as F.A.I.R., participated in the removal of this case to federal court. The other four defendants did not join in or otherwise consent to the removal. The plaintiffs oppose the removal and move for a remand.

 II.

 Plaintiffs raise numerous arguments to support their motion to remand. Their arguments will be addressed seriatim, followed by a brief discussion of F.A.I.R.'s motion to consolidate this case with F.A.I.R.

 A.

 Plaintiffs' primary argument for remand rests on their contention that defendants' removal to federal court was procedurally defective, in that not all of the defendants consented to the removal. The basis for this argument stems from the language of the applicable removal statute, 28 U.S.C. § 1441(a), which states in pertinent part that

 
except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

 Numerous courts, including the Second Circuit, have construed this statute as generally requiring the consent of all defendants to effect a proper removal. See, e.g., Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960) (Friendly, J.); Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986); Bellone v. Roxbury Homes, Inc., 748 F. Supp. 434, 436 (W.D. Va. 1990) (citing cases). Since four of the eight defendants in this case did not join in the removal -- in fact, three apparently oppose the removal -- plaintiffs urge that ...


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