activities, the manner of transactions were strictly regulated by the management, and, finally, the plaintiff was given a weekly draw against commission. Golden, supra, at 1102. These facts are not present in the instant case where Plaintiff worked her own hours, on a strict commission basis, with no draws or advances. In the instant case, Plaintiff did not have an employment relationship with Defendant, and the law is clear that, absent that relationship, no action for employment discrimination under Title VII or the New York State Human Rights Law can be brought.
In this case, Plaintiff worked autonomously, with minimal requirements to be present in the Hunt Real Estate offices. The factors in this case establish that, similar to the plaintiff in Krijn, Plaintiff did not have an employment relationship with Hunt, but, as a licensed real estate salesperson, worked as an independent contractor with Hunt.
As Title VII and the New York State Human Rights Law do not permit actions to be raised by independent contractors, this determination precludes any inquiry into the actions of Eric Bowen. If such harassment could be proved, it is indeed unfortunate that Plaintiff has no recourse based on the employment discrimination laws. However, until such time as Congress sees fit to expand the scope of the federal discrimination laws, this court is bound to apply the relevant law in this case. Accordingly, Defendant's motion for summary judgment is GRANTED.
2. Pendent State Claims
Defendant has also moved for dismissal of the pendent state claim on the basis that no subject matter jurisdiction exists over the pendent state claim.
Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court shall also have supplemental jurisdiction over all other claims that are so related to claims in the action within the original jurisdiction of the court, that they form part of the same case or controversy under the Constitution. The district court must exercise supplemental jurisdiction if the requirements of § 1367(a) are met, unless one of the exceptions set forth in § 1367(c) exist. Wilson v. Roberson, 1993 U.S. Dist. LEXIS 4922, *5, 1993 WL 119695 at *2 (S.D.N.Y. 1993). Under § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it had original jurisdiction. The Second Circuit has held that "absent exceptional circumstances," where federal claims are disposed of on summary judgment grounds, courts should "abstain from exercising pendent jurisdiction." Drexel Burnham Lambert v. Saxony Heights Realty, 777 F. Supp. 228, 240 (S.D.N.Y. 1991) (quoting Walker v. Time-Life Films, Inc., 784 F.2d 44, 53 (2d Cir.), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2278 (1986). "Factors to be considered by the court 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." Drexel Burnham Lambert, supra, at 240. "In the usual case in which all federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims." Morse v. University of Vermont, 973 F.2d 122, 127-128 (2d Cir. 1992).
In this case, the pendent state claim arose from the same set of facts as did the original federal claim. Accordingly, it was properly joined pursuant to 28 U.S.C. § 1367(a). However, once the federal claim was dismissed, under § 1367(c)(3), the remaining state claim becomes subject to dismissal as the court may, in its discretion, decline supplemental jurisdiction over this claim. While the complaint in this case was filed in 1991, a trial date has not yet been set, and the remaining issues are solely based on state discrimination law. Accordingly, based on relevant law, the court declines to exercise subject matter jurisdiction over the state claim. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988) (when "all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economny, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims"); Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir. 1988) ("the basis for retaining jurisdiction is weak when . . . the federal claims are dismissed before trial"); Porras v. Montefiore Medical Center, 742 F. Supp. 120, 127 (S.D.N.Y. 1990) (court dismissed pendent state claims based on state employment discrimination law and common law assault where Title VII claims was dismissed on summary judgment prior to trial).
Further, as summary judgment has been granted, Defendant's alternative motions are moot.
Based on the foregoing discussion, Defendant's motion for summary judgment is GRANTED. Defendant's motion to dismiss the pendent state claim is also GRANTED. Defendant's alternative motions are, therefore, moot.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: July 29th, 1994
Buffalo, New York