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August 30, 1994

PETER E. TORRES, d/b/a Visa Lottery, Inc. d/b/a Immigration Law Office of Peter E. Torres, Esquire, Plaintiff, against CBS NEWS, ROSEANNE COLLETTI, ERNIE ANASTOS, BEATRICE GRUBER, "JOHN DOE" DOE" being a fictitious name of a CBS undercover cameraman, CONGRESSMAN CHARLES E. SCHUMER, ELIZABETH AVIARS, and THE CITY OF NEW YORK, Defendants.

SHARON E. GRUBIN, United States Magistrate Judge. HONORABLE KIMBA M. WOOD

The opinion of the court was delivered by: SHARON E. GRUBIN


SHARON E. GRUBIN, United States Magistrate Judge:

 Pending are the motion of defendant Congressman Charles E. Schumer to dismiss this case pursuant to Fed. R. Civ. P. 12 or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56 and the motion of plaintiff for summary judgment on the first two of his four claims against Congressman Schumer. I respectfully recommend that Congressman Schumer's motion be granted and plaintiff's motion denied. I further recommend that this case then be remanded to the New York State Supreme Court from which it was removed by Congressman Schumer. *fn1"


 Plaintiff, Peter E. Torres, is an attorney who practices immigration law in New York and filed this action in the state court on August 24, 1993 alleging that defendants made false and defamatory statements about a booklet and services that plaintiff offered immigrants in connection with applications to the government's visa lottery program. Of the twelve claims in the complaint, only the first four are against Congressman Schumer and are based on the following undisputed facts.

 In May 1992 plaintiff prepared a booklet entitled "Visa Lottery Informational Booklet" intended to aid immigrants applying for visas for permanent United States residency under the upcoming 1993 visa lottery program. Plaintiff sold the booklet for $ 50 and, in addition, offered to do the application and related work for $ 150. In soliciting orders, plaintiff used the name "Visa Lottery, Inc.," obtained a Post Office box to receive orders and had available three telephone lines 24 hours a day to provide free information. Believing that many immigrants would contact their Congressional representatives concerning the lottery, plaintiff sent a letter by fax to all Congresspeople in New York and elsewhere regarding his booklet and the other services he offered. Congressman Schumer, the Ranking Member of the Immigration Subcommittee of the Committee on the Judiciary, issued a one-page press release on July 29, 1992 which, in essence, warned illegal aliens to beware of "scam artists" who portrayed themselves as consultants and offered for a fee to complete the lottery application process which, according to the Congressman, was simple enough for anyone to do her or himself. The press release referred specifically to Visa Lottery, Inc. as an example of "one company looking to make a quick buck off of aliens" and said, "In Brooklyn, we have a word for something like that -- chutzpah."

 The complaint charges in its first two claims that the references to "plaintiff" *fn2" as a "scam artist" and "one company looking to make a quick buck off of aliens" and "calling plaintiff: 'Chutzpah'" were false and defamatory and that Congressman Schumer, in publishing this matter, failed to take proper steps to ascertain its accuracy, acting in a grossly irresponsible manner and with reckless disregard of the truth. The first claim is for libel and the second alleges a "breach" of "a duty of care" owed to plaintiff. Both allege injury to plaintiff's professional character and reputation, mental anguish and loss of business in the sum of $ 100 million dollars and also seek punitive damages.

 The third claim in the complaint, for slander, and fourth claim, again for "breach" of "a duty of care," are based on allegations all "on information and belief" that on, about, or after July 29, 1992, defendant Schumer held a press conference with the television and broadcast media regarding the defamatory matter of and concerning plaintiff" and "in the presence of the television and broadcasting media spoke of and concerning the plaintiff false and defamatory words and/or statements mentioned in his [press release]." These claims seek precisely the same damages for precisely the same injuries as the first two claims.

 The additional eight state-law claims against the other defendants -- CBS Inc., Ernie Anastos, Roseanne Colletti, Beatrice Gruber, "John Doe" (a CBS cameraman), and the City of New York and Director of the Mayor's Office for Immigrant Affairs, Elizabeth Aivars -- are based on allegations that they reported or made false and defamatory statements about plaintiff on a "Trouble Shooter" television program broadcast by CBS stations and affiliates on August 26, 1992. Because the facts alleged in the complaint against these defendants will be relevant to the discussion below, a brief description is necessary. *fn3"

 According to plaintiff, on August 23, 1992 defendant Gruber (a CBS employee but not identified as such at that time to plaintiff), relying on the press release published by defendant Schumer, called plaintiff's office and made an appointment to see him and obtain a booklet, but she did not appear for the appointment. On August 25 she called again to obtain one of the booklets. When plaintiff's secretary told Ms. Gruber it was too late to be mailed the information because the lottery entry had to be submitted by August 28, Ms. Gruber said she would come to the office to pick it up. That day Ms. Gruber went to plaintiff's office with "John Doe" (a CBS undercover cameraman), and they introduced themselves as immigrants who wanted to apply to the lottery for themselves and their relatives. Plaintiff answered their questions and discussed his booklet's information with them for one-half hour, and Ms. Gruber bought one for $ 50. John Doe, through a concealed camera, had videotaped the visit. The following day, August 26, when plaintiff arrived at his office he found defendant Roseanne Colletti (a CBS reporter) with defendants Gruber, John Doe and a television camera waiting outside the office to interview plaintiff regarding his booklet. Plaintiff refused to appear on television because he was not dressed in a suit and informed Ms. Colletti that he had not committed any wrongdoing in connection with his booklet. Ms. Colletti, however, as plaintiff was being filmed, informed him that he was going to appear on that night's broadcast and that her report was based on the press release of Congressman Schumer. When plaintiff informed Ms. Colletti that he was not aware of the press release, she gave him a copy. That evening CBS News aired a "Trouble Shooter" piece on its nationwide network of stations and affiliates showing segments of plaintiff's discussions with defendants Gruber and Colletti and portraying plaintiff as though committing a crime. During its local airing, defendants Colletti and anchorperson Ernie Anastos made additional comments about plaintiff's services. It is alleged the broadcast and the comments were false and defamatory. The City of New York and Elizabeth Aivars, Director of the Mayor's Office for Immigrant Affairs, are named as defendants because during the broadcast Aivars, shown with a copy of plaintiff's booklet, also made false and defamatory comments about it.

 The eight claims against these defendants are not pleaded against Congressman Schumer. While the factual allegations contain four references to Congressman Schumer's press release, *fn4" the complaint does not state or imply that defendant Schumer made any statement or utterance concerning plaintiff apart from those in the press release and press conference on which the first four claims are based or played any role in the broadcast or the events leading up to it, other than the fact that the issuance of the press release was what brought plaintiff to the attention of the CBS defendants.


 I. Standards on a motion to dismiss and on a motion for summary judgment

 On a motion to dismiss the court accepts all factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence & Coord. Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 113 S. Ct. 1412 (1993). A complaint should not be dismissed unless, "after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of New York, 974 F.2d at 298 (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).

 Under Rule 56(c) of the Federal Rules of Civil Procedure a motion for summary judgment must be granted if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett 477 U.S. at 322. The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). But the court is to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Knight v. U.S. Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs," and a dispute over irrelevant or unnecessary facts will not preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.

 II. The applicable limitations period for all four claims against Congressman Schumer is one year

 Under New York law an action for libel or slander must be commenced within "one year from the date that the defamatory statement is made available or published, in the case of libel, and one year from the date of utterance in the case of slander." Johnson v. Shearson Loeb Rhoades, Inc., LEXIS GENFED Library, DIST File, No. 83 Civ. 3937 (JFK), 1984 WL 1028 at *5 (S.D.N.Y. Oct. 18, 1984) (also available on LEXIS). See also Shamley v. ITT Corp., 869 F.2d 167, 172 (2d Cir. 1989); Stockley v. AT&T Info. Sys., 687 F. Supp. 764, 768 (E.D.N.Y. 1988); Karam v. First American Bank, 190 A.D.2d 1017, 1018, 593 N.Y.S.2d 640, 642 (4th Dep't 1993); Rand v. New York Times Co., 75 A.D.2d 417, 424, 430 N.Y.S.2d 271, 275 (1st Dep't 1980); N.Y. Civ. Prac. L. & R. 215(3) (McKinney 1990). Because this action was commenced on August 24, 1993, any claim for relief based on an allegedly defamatory publication made available or published, or an allegedly slanderous statement uttered, before August 24, 1992 is time-barred.

 As indicated above, the first and third claims in the complaint are for libel and slander, respectively, and the second and fourth are for "breach" of "a duty of care." However, the paragraphs of the complaint setting forth the second and fourth claims do not differ in any material respect from the corresponding paragraphs of the first and third claims. In apparent response to the contention made in Congressman Schumer's motion papers that the second and fourth claims are simply superfluous defamation claims for statute of limitations purposes, plaintiff offhandedly now mentions in his 3(g) statement and memoranda of law that they are claims for negligence. *fn5" Neither the complaint nor his submissions make any attempt, however, to explain the nature of the alleged "duty of care," and no relationship between Congressman Schumer and plaintiff is alleged to give rise to any special duty of care.

 New York courts have been alert to attempts to circumvent the one-year period for defamation actions by characterizing the claim or injury as something else, e.g., as negligence, intentional or negligent interference with reputation or prospective contractual relationships, intentional infliction of emotional harm or prima facie tort. "We look for the reality, and the essence of the action and not its mere name." Morrison v. NBC, 19 N.Y.2d 453, 459, 280 N.Y.S.2d 641, 644, 227 N.E.2d 572 (1967) (quotation omitted). See also Gallagher v. Metro North Commuter R.R. Co., 846 F. Supp. 291, 293 (S.D.N.Y. 1994). "Any other rule would allow a plaintiff to evade the strictures of limitations statutes simply by clever characterization of claims." Korry v. IT&T Corp., 444 F. Supp. 193, 195 (S.D.N.Y. 1978). The four claims against Congressman Schumer all involve the same allegedly false and defamatory statements, and all seek damages for injury to reputation, the gravamen of an action in defamation. In similar situations, this court as well as the state courts have made it clear that regardless of the terms in which a cause of action may be cast, the one-year limitations period for libel and slander applies. See, e.g., Korry v. IT&T Corp., 444 F. Supp. at 195 ("In applying statutes of limitations, we look to the essence of plaintiff's claim, not the label he chooses to tag onto it.... Since, in the instant case, all claims are for redress of injury to reputation, we find that New York's one-year Statute of Limitations, C.P.L.R. § 215(3), for libel and slander actions, should apply."); Gallagher v. Metro North Commuter R.R. Co., 846 F. Supp. at 293; Gay v. Carlson, No. 89 Civ. 4757 (KMW), 1992 U.S. Dist. LEXIS 15799 at *4, 1992 WL 309819 at *2 (S.D.N.Y. Oct. 15, 1992); Morrison v. NBC, 19 N.Y.2d at 458-59, 280 N.Y.S.2d at 643-44.

 III. Claims one and two

 It is undisputed that, as alleged in the complaint, the press release, on which the first two claims are based, was issued by Congressman Schumer's office on July 29, 1992. As plaintiff did not commence this suit until August 24, 1993, he is clearly barred by the one-year statute of limitations because, as indicated above, an action for libel accrues on the date of publication. Plaintiff, however, in an attempt to avoid dismissal, argues a meritless and nonsenical contention: that the statute did not begin to run until August 26, 1992 when he told defendant Colletti that the press release was false, because "publication" only occurs when a third party knows and understands allegedly libelous material to be defamatory:


In Torres' case, the statute of limitations commenced on August 26, 1992, since it was on this date that Colletti became aware of the defamatory nature of Schumer's news press release. Torres told Colletti the statements in the news press release made by Schumer were false and defamatory. It was at this point Colletti should have understood the significance and the defamatory nature of the news press release.

 Plaintiff's Memorandum of Law, June 24, 1994 ("Pl. Memo"), p. 15. In support of this contention, plaintiff quotes as follows from Sorge v. Parade Publications, Inc., 20 A.D.2d 338, 342, 247 N.Y.S.2d 317, 322 (1st Dep't 1964) (the material in brackets shows how the case itself reads, rather than plaintiff's somewhat modified version of the quotation):


["]Since a libel is predicated upon the injury to the reputation of the one attacked, and reputation is the opinion of others, no cause of action can arise unless the accusation is in some way brought to the attention of a third person. This bringing the accusation to the attention of a third person is called the act of publication.["] [Seelman, Law of Libel and Slander in New York, p. 115, § 121.] And, ["]it is necessary not only that the defamatory matter be brought to the attention of a third person but that he understood its defamatory significance.[ " (Restatement, Torts, § 577, comment p. 193; Odger, Libel and Slander, 6th ed. p. 131; 53 C.J.S., Libel and Slander, § 79.)]


Since New York has a short Statute of Limitations of one year in defamation cases [CPLR § 215, formerly Civ. Prac. Act, § 510,] to hold that mere delivery of a bundled publication to a carrier constitutes publication so as to relieve the compositor and writer of liability, could well result in almost total deprivation of any right of redress to the person wronged. [The date for release of the offending article or book could be set for almost one year subsequent to such delivery.]

 (Emphasis added.) Plaintiff thus argues, apparently on the basis of the underscored sentence, that the statute with respect to defendant Schumer's press release did not begin to run until defendant Colletti knew or had reason to know its contents were false.

 Plaintiff's contention fails for many reasons. It might first be pointed out that Sorge v. Parade Publications, Inc. involved the special situation carved out by the courts, known as the "single publication rule," for cases involving multiple copies of a publication (e.g., Parade Magazine inserted in Sunday newspapers) that are not generally made available to intended recipients until some date after they have been printed and, in that case, given to shippers and other common carriers for delivery and ultimate distribution. As explained in the last sentence of the quotation -- which plaintiff failed to include in his version of the quotation -- such material cannot be deemed published for statute of limitations purposes on the date actually printed or a date prior to the general release date when copies may have been obtained by a limited number of persons because a wrongdoer could easily control the ability of a victim of libel to ever bring suit by delaying general release until the statute has run. Congressman Schumer's press release hardly falls into this category. Indeed, it is undisputed that it was released once, on July 29, 1992, to its intended recipients.

 Moreover, as might be expected, the underscored language hardly means what plaintiff says it means. It simply means that unless purportedly libelous material is actually communicated to some third person, there has been no "publication" of it on the basis of which a plaintiff could have been injured. *fn6" The authorities cited by the Sorge court after the underscored sentence -- which authorities plaintiff also failed to include in his version of the quotation -- make the point quite clearly. The court's language apparently came from the Restatement of Torts where the Comment on p. 193 cited by the court reads: "Since publication requires that the defamatory matter be communicated to a third person, it is necessary not only that the defamatory matter be brought to the attention of a third person but that he understand its defamatory significance." The Restatement then immediately gives the following illustrations to explain its point:


Illust. 3: A, a Lithuanian, engages in a violent quarrel with B on the streets in the foreign section of Chicago. In his native tongue, A accuses B of murder. Neither B nor anyone else understands him. A has not published a slander.


Illust. 4: Same facts as in Illustration 3, except that A is overheard by several of his countrymen. A has published a slander.

 Restatement of Torts § 577, illus. 3-4, p. 194 (1939). The cases in plaintiff's string citation in his memorandum of law after his quote from Sorge merely state, as plaintiff himself quotes, that printing a libel is regarded as a publication when it is delivered to and read by some third person. E.g., Church of Scientology v. Green, 354 F. Supp. 800, 803 (S.D.N.Y. 1973); Youmans v. Smith, 153 N.Y. 214, 218, 47 N.E. 265 (1897); McGill v. Parker, 179 A.D.2d 98, 106, 582 N.Y.S.2d 91, 96 (1st Dep't 1992). *fn7" Under plaintiff's position, reporters, broadcasters and the mass of people who receive press releases issued by Congress are not "third persons." *fn8"

 Finally, even were we to accept plaintiff's theory on its face, his case would have to be dismissed by his own reckoning as he contends that the statements in the press release were, in fact, such that any third persons who read them did "understand their defamatory significance. See, e.g., Pl. Memo, p. 23 ("Schumer's statements as applied to Torres' profession, trade, and business were derogatory and were actually understood by the reasonable reader to be defamatory.") Indeed, the facts with respect to Ms. Colletti and all the other defendants besides Congressman Schumer, including the fact that plaintiff told Ms. Colletti that the press release was false, the event he now claims triggered the commencement of the limitations period, are not even alleged in the complaint until after his four causes of action against Congressman Schumer are fully pleaded. Thus, if it were required for "publication" that that event have occurred, the motion to dismiss the complaint would have to be granted in any event since the pleading on its face would fail to state a claim against Congressman Schumer. And, to belabor the point one further step, it could be noted that the complaint itself belies plaintiff's contention, since he alleges therein in pleading the two libel claims against Congressman Schumer, as indeed he must, that in issuing the press release on July 29, 1992, "defendant Schumer published of and concerning the plaintiff defamatory statements in a news press release article. that was released and distributed to the broadcast and television media." Complaint P 18. The complaint goes on to allege, prior to any mention of Ms. Colletti, that this matter so "published by defendant Schumer...was and is false and defamatory" and "published " without defendant Schumer's having purchased or read plaintiff's booklet (P 19); "published" without defendant Schumer's having taken steps to ascertain its accuracy (P 20); "published " by defendant Schumer with reckless disregard; that "in publishing the defamatory matter, defendant Schumer acted...without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties" (P 21); and it was by reason of the foregoing that plaintiff was injured (P 22). (Emphases added.) See also PP 24, 25, 26. *fn9"

 Accordingly, without even going beyond the face of the complaint, because publication occurred on July 29, 1992, one year and 26 days before this action was commenced, we must grant the motion to dismiss the first two claims.

 IV. Claims three and four

 For the third claim against Congressman Schumer, the complaint alleges as follows:


28. Based on information and belief, on, about, or after July 29, 1992, defendant Schumer held a press conference with the television and broadcast media regarding the defamatory matter of and concerning plaintiff.


29. Based on information and belief, defendant Schumer in the presence of the television and broadcasting media spoke of and concerning the plaintiff false and defamatory words and/or statements mentioned in his [press release].

 As mentioned earlier, the complaint goes on to allege that the alleged false statements -- the contents of which, except by the reference in paragraph 29 to the press release, are not set forth -- were made with reckless disregard and grossly irresponsibly, *fn10" and the fourth claim, which incorporates the complaint's prior allegations, alleges Congressman Schumer "breached" some "duty of care" to plaintiff by so making these unspecified false and defamatory statements at the press conference. Summary judgment must be granted to Congressman Schumer on both these claims. *fn11"

 Plaintiff's claim that Congressman Schumer held press conference is stated "on information and belief." In support of his motion, Congressman Schumer and his Press Secretary state categorically under oath that no press conference on the subject was ever held. Declaration of Charles E. Schumer P 8; Declaration of Robert McCarson P 9. Plaintiff has put forward no rebuttal at all to this sworn evidence. Indeed, he appears to have accepted the fact that Congressman Schumer held no press conference. *fn12" Plaintiff's bare speculative allegation in his complaint on information and belief that Congressman Schumer held a press conference at which he defamed him cannot withstand Congressman Schumer's showing on personal knowledge that no press conference ever occurred. *fn13" Rule 56(e) itself provides:


When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 See also, e.g., Schoenbaum v. Firstbrook, 405 F.2d 200, 209 (2d Cir. 1968), cert. denied, 395 U.S. 906, 89 S. Ct. 1747, 23 L. Ed. 2d 219 (1969) ("The trial court correctly ruled that when plaintiff failed to submit affidavits on personal knowledge in support of the complaint in opposition to defendants' affidavits on personal knowledge, factual issues were to be resolved against the plaintiff wherever defendants' affidavits conflict with the unsupported allegations of the complaint upon information and belief."); Moon v. CIA, 514 F. Supp. 836, 840 (S.D.N.Y. 1981). As defendant Schumer has thus established there can be no issue for trial with respect to the alleged defamation at such alleged press conference, summary judgment must be granted on claims three and four of the complaint. *fn14"

  V. Upon dismissal of Congressman Schumer, this case should be remanded to the New York Supreme Court

 The basis for this action's being in this court was Congressman Schumer's presence as a defendant in it. While it is a matter of this court's discretion whether or not to retain the case since "if the federal party is eliminated from the suit after removal pursuant to [§ 1442(a)(1)], the district court does not lose its ancillary or pendent-party jurisdiction over the state law claims against the remaining non-federal parties," District of Columbia v. Merit Sys. Protection Bd., 246 U.S. App. D.C. 35, 762 F.2d 129, 132-33 (D.C. Cir. 1985); see also Sharon E. Grubin & Deborah E. Lans, Removal, in Federal Civil Practice 80, 100 (Georgene M. Vairo ed., 1989), the considerations to be applied in exercising that discretion direct remand in this case. Those considerations are comity, federalism, judicial economy and fairness to the litigants. See District of Columbia v. Merit Sys. Protection Bd., 762 F.2d at 133; Falls Riverway Realty, Inc. v. City of Niagara Falls, 732 F.2d 38, 42 (2d Cir. 1984); Galella v. Onassis 487 F.2d 986, 996 (2d Cir. 1973); 805 Third Ave. Co. v. Excel Mktg. Enterprises Corp., Nos. 85 Civ. 5205, 85 Civ. 7030, 85 Civ. 7031 (CSH), 1987 U.S. Dist. LEXIS 5281 at *15, 1987 WL 12822 at *5 (S.D.N.Y. June 17, 1987), aff'd, 847 F.2d 834 (2d Cir. 1988); Givoh Assocs. v. American Druggists Ins. Co., 562 F. Supp. 1346, 1352 (E.D.N.Y. 1983).

 When the federal party is eliminated shortly after removal and there has been "no substantial commitment of judicial resources" to the remaining state-law claims, remand to the state court is clearly warranted. 805 Third Ave. Co. v. Excel Mktg. Enterprises Corp., 1987 U.S. Dist. LEXIS 5281 at *15, 1987 WL 12822 at *5 See District of Columbia v. Merit Sys. Protection Bd., 762 F.2d at 133; Givoh Assocs. v. American Druggists Ins. Co., 562 F. Supp. at 1352. No judicial resources have yet been expended on this case's state-law claims. Plaintiff, of course, presumably would prefer remand as it was he who moved that it be remanded after Congressman Schumer's removal of it to us. While his motion had to be denied at that time, upon Congressman Schumer's dismissal from the case, remand is clearly the appropriate course.


 For the foregoing reasons, I respectfully recommend that defendant Schumer's motion to dismiss claims one and two of the complaint be granted; plaintiff's motion for summary judgment on those claims be denied; defendant Schumer's motion for summary judgment on the remaining claims against him, three and four, be granted; and that the case be remanded to the New York State Supreme Court, New York County.

 Copies of this Report and Recommendation were mailed August 30, 1994 to the following:


Peter E. Torres, Esq.


P.O. Box 1155


New York, New York 10035-0808


Helen M. Gold, Esq.


CBS Inc.


51 West 52nd Street


New York, New York 10019


Richard P. Stanton, Esq.


Assistant Counsel, Office of General Counsel


United States House of Representatives The Capitol, H-112


Washington, District of Columbia 20515


Charles C. Graves, II, Esq.


Assistant Corporation Counsel


City of New York Law Department


100 Church Street, Room 4A-4


New York, New York 10007

 The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Kimba M. Wood, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Wood. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).

 Dated: New York, New York

 August 30, 1994


 United States Magistrate Judge

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