The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Central Synagogue ("Central") has moved, pursuant to
28 U.S.C. § 1447, for an order to remand this action to New York
State Supreme Court for lack of subject matter jurisdiction. For
the reasons set forth below, the motion is granted.
This action arises out of the tragic fire that consumed the
historic Central Synagogue Sanctuary (the "Sanctuary") of
plaintiff Central on August 28, 1998. As a result of the fire,
Central's insurance carrier, Wausau Business Insurance Company
("Wausau"), allegedly paid a certain sum of money to Central.
Wausau subsequently filed an action (the "Wausau case") in this
Court on January 29, 1999, seeking amounts in subrogation against
defendants Turner Construction Company ("Turner"), Amis Inc.
("Amis"), and Aris Development Corporation ("Aris," and, together
with Turner and Amis, the "Defendants"). Subject matter
jurisdiction in the Wausau case was predicated on diversity, as
Wausau is a Wisconsin entity and all Defendants are New York
On February 25, 1999, Central, a New York entity, filed the
instant action (the "Central case") in Supreme Court of the State
of New York, New York County against Defendants. Central's
complaint alleges state law claims of breach of contract,
negligence, and breach of fiduciary duty, and seeks damages for
uninsured losses sustained in the Sanctuary fire.
On April 2, 1999, Turner removed the Central case to this Court
pursuant to 28 U.S.C. § 1441, seeking joinder with the Wausau
case. Subject matter jurisdiction in the Central case is
predicated on 28 U.S.C. § 1367, the "supplemental jurisdiction"
On June 7, 1999, Central filed the instant motion to remand the
Central case to New York State Supreme Court, pursuant to
28 U.S.C. § 1447. Oral argument on the motion was heard on June 23,
1999, at which time the motion was deemed fully submitted.
The Basis for the Remand Action
Central's motion for remand based on lack of subject matter
jurisdiction rests on three assertions. First, Central asserts
that supplemental jurisdiction is not a valid basis for removal,
since § 1441 only permits removal of a "civil action brought in a
State court of which the district courts of the United States
have original jurisdiction." 28 U.S.C.A. § 1441(a) (West 1993 &
Supp. 1999) (emphasis added). Central construes this language to
mean that only an action which could have been brought in federal
court originally can be removed to federal court. Since § 1367
only supplies "supplemental jurisdiction" to a claim, not
original jurisdiction, and since the Central case could not
otherwise have been brought in federal court originally — lacking
a federal question claim under 28 U.S.C. § 1331 and failing to
meet the diversity requirements under § 1332 — Central
maintains that the case cannot be removed.
Second, Central asserts that, even if supplemental jurisdiction
somehow overcame the § 1441 "original" jurisdiction defect, §
1367 nevertheless only applies to claims brought in a single
action. Here, the claims were brought in two separate actions.
Third, Central asserts that § 1367(b) explicitly disallows the
exercise of supplemental jurisdiction over "claims by persons
proposed to be joined as plaintiffs under Rule 19 . . . when
exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section
1332." Id. § 1367(b). Since Turner proposes to join Central as
a plaintiff in the Wausau case, presumably under Rule 19, and
since such joinder would destroy subject matter jurisdiction in
the Wausau case, which is premised on diversity (because Central
and Turner are both New York "citizens"), § 1367 cannot be used
as a basis for supplemental jurisdiction and thus as a basis for
Turner replies that a rational reading of §§ 1367 and 1441,
buttressed by case law in this Circuit and elsewhere, firmly
establishes that (1) the "original" jurisdiction requirement of §
1441 does not bar claims in which jurisdiction is predicated on §
1367; (2) jurisdiction under § 1367 is not limited to claims
brought in a single action; and (3) § 1367(b) ...