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March 29, 2001


The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.


Plaintiffs Cardell and Dahlia Payne (hereinafter, the "plaintiffs") move to amend their complaint to strike all federal claims and then to remand the case back to state court. For the reasons stated below, we deny both motions.


Plaintiffs are husband and wife and residents of an apartment located in the Parkchester North Condominiums in the Bronx. According to plaintiffs, Cardell was beaten, pepper-sprayed, handcuffed and arrested by the building's security guards, some of whom have "Special Patrol Officer" status granted by the New York City Police Department. Dahlia also claims that one or more of these guards struck her. The defendants include Parkchester North Condominiums Associates, The Parkchester South Condominium, Inc., Parkchester Preservation Management, LLC, and several security officers (hereinafter, collectively, the "defendants").

In August 1999, plaintiffs sued in the Supreme Court of New York, Bronx County. In their original complaint, and in three places in their October 1999 amended complaint, plaintiffs expressly claim violations of specific federal constitutional rights. (See Am. Compl. ¶¶ 1, 22, 30 (Fourth and Fourteenth Amendments)). They also allege assault and battery, false arrest and imprisonment, malicious prosecution, negligence, and other state torts. In July 2000, defendants served interrogatories. Plaintiffs did not answer the discovery requests until late February 2001, but the parties have taken and/or scheduled depositions.

At about the same time that plaintiffs filed their amended complaint in Supreme Court, defendants attempted unsuccessfully to remove the case to this Court, and at least some of the parties' lawyers labored under confusion about the lawsuit's status. In April 2000, counsel for defendants ascertained that the Clerk of this Court had not assigned a docket number. Accordingly, in June, defendants again tried to file for removal, this time successfully.

Over seven months after such removal, on January 24, 2001, we held a pre-motion conference (requested by defendants) during which we and they learned for the first time that plaintiffs challenged our jurisdiction. Plaintiffs now move (as urged in their reply brief) again to amend their complaint, deleting all references to the United States Constitution. Further, they ask us to remand the case.

Plaintiffs' opening motion papers fashion a very weak argument for remand, namely, that their federal claims represent "nothing more than state court claim[s] recloaked in constitutional garb." (Pls. Mem. at 3). In two pages of opposition, defendants vanquish plaintiffs' effort. But then, in their reply papers, plaintiffs take a new stance, asking for leave to drop their explicitly federal causes of action and to substitute state and local analogues.


Ordinarily, we should "freely" grant leave to amend the complaint and dismiss causes of action "when justice so requires." Fed.R.Civ.P. 15(a). Yet in deciding whether to approve amendment, we must consider not only any substantial prejudice to defendants, undue delay, or bad faith, but also whether such action implicates our subject matter jurisdiction. Richardson Greenshields Secs., Inc. v. Lau (2d Cir. 1987) 825 F.2d 647, 653 n. 6; cf. American Charities for Reasonable Fundraising Regulation, Inc. v. Shiffrin (D.Conn. 1999) 46 F. Supp.2d 143, 154, aff'd, 205 F.3d 1321 (2d Cir. 2000). If we authorize plaintiffs to drop their federal claims, then in our discretion we can remand the case or, under extraordinary circumstances, retain the state claims under supplemental jurisdiction. 28 U.S.C. § 1367(c). In making the determination whether to remand, we must weigh "the values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720.

Crucially, we must also take into account whether the plaintiffs have tried to manipulate the forum (Id. at 357, 108 S.Ct. 614):

A district court can consider whether the plaintiff has engaged in any manipulative tactics when it decides whether to remand a case. If the plaintiff has attempted to manipulate the forum, the court should take this behavior into account in determining whether the balance of factors to be considered under the pendent jurisdiction doctrine support a remand in the case.

Over the years, several courts have confronted the question now before us, namely, whether to permit a plaintiff voluntarily to strike his federal claims after removal and, if so permitted, whether thereafter to remand. Several of these cases adopt one of two opposing rules or directions. Curiously, most of the opinions acknowledge only whichever rule is adopted therein and do not address the counterarguments. On the one hand, courts disposed to reject remand when a plaintiff clearly and intentionally attempts to engage in forum manipulation typically cite three rationales for their rejection — time and resource conservation, Congressional intent, and a sense of fair play. See, e.g., Boelens v. Redman Homes, Inc. (5th Cir. 1985) 759 F.2d 504, 507 & n. 2 (citing cases); Bradford v. Olympia Courier Sys., Inc., No. CV 96-5693, 1997 WL 570720, at *1-3 (E.D.N.Y. Sept. 2, 1997) (citing cases); In re Bridgestone/Firestone, Inc. (S.D.Ind. 2001) 128 F. Supp.2d 1198, 1201-02 (citing Boelens; Hammond v. Terminal R.R. Ass'n (7th Cir. 1988) 848 ...

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