United States District Court, Southern District of New York
March 29, 2001
CARDELL PAYNE AND DAHLIA PAYNE, PLAINTIFFS,
PARKCHESTER NORTH CONDOMINIUMS ET AL., DEFENDANTS.
The opinion of the court was delivered by: Whitman Knapp, Senior District Judge.
MEMORANDUM & ORDER
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
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
Ordinarily, we should "freely" grant leave to amend the
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
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
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
& 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 F.2d 95); Moscovitch v.
Danbury Hosp. (D.Conn. 1998) 25 F. Supp.2d 74, 79; Olmstead v.
Beverly Enterprises-Florida, Inc., No. 96-1941-Civ.-T-17B, 1997
WL 155410, at *3 (M.D.Fla. Mar. 17, 1997); Greenwald v. Palm
Beach County (S.D.Fla. 1992) 796 F. Supp. 1506, 1506-07.
We transcribe here an oft-quoted articulation of these reasons
(Boelens, 759 F.2d at 507):
"When a plaintiff chooses a state forum, yet also
elects to press federal claims, he runs the risk of
removal. A federal forum for federal claims is
certainly a defendant's right. If a state forum is
more important to the plaintiff than his federal
claims, he should have to make that assessment before
the case is jockeyed from state court to federal
court and back to state court. The jockeying is a
drain on the resources of the state judiciary, the
federal judiciary and the parties involved; tactical
manipulation [by the] plaintiff . . . cannot be
condoned." Austwick v. Board of Ed. (N.D.Ill. 1983)
555 F. Supp. 840, 842. The rule that a plaintiff
cannot oust removal jurisdiction by voluntarily
amending the complaint to drop all federal questions
[also] serves the salutary
purpose of preventing the plaintiff from being able
to destroy the jurisdictional choice that Congress
intended to afford a defendant in the removal
In contrast, other courts justify forum manipulation as "a
legitimate tactical decision":
The defendant is not obligated to remove; rather, he
has the choice either to submit to state court
resolution of his claims, or to assert his right to a
federal forum. If the defendant rejects the
plaintiff's offer to litigate in state court and
removes the action, the plaintiff must then choose
between federal claims and a state forum. Plaintiffs
in this case chose the state forum. They dismissed
their federal claims and moved for remand with all
due speed after removal. There was nothing
manipulative about that straightforward tactical
decision, and there would be little to be gained in
judicial economy by forcing plaintiffs to abandon
their federal causes of action before filing in state
Baddie v. Berkeley Farms, Inc. (9th Cir. 1995) 64 F.3d 487
491; see also, e.g., Chow v. Hirsch, No. C-98-4619, 1999 WL
144873, at *5 (N.D.Cal. Feb. 22, 1999) (Plaintiff did not attempt
to "manipulate" the forum when she "made a strategic decision to
concentrate on her state law claims in an attempt to have them
heard in state court. This is not improper."); Tennessee ex rel.
Pierotti v. Parcel of Real Property, 937 F. Supp. 1296, 1303
(W.D.Tenn. 1996) ("plaintiff is allowed to determine what claims
it brings against defendants").
We are not obligated by any Second Circuit precedent to observe
either of the two competing general policies. We may use our
discretion. The Fifth Circuit announced in 1985 that the "no
remand" position represents the "majority view," and that Court
included in its list of adherents a 1963 Second Circuit case.
Boelens, 759 F.2d at 507 & n. 2 (citing Hazel Bishop, Inc. v.
Perfemme, Inc. (2d Cir. 1963) 314 F.2d 399, 403-04). The instant
defendants also rely upon Hazel Bishop. Apparently, though, the
tide has shifted, and more recent opinions tend to favor remand.
But see In re Bridgestone, 128 F. Supp.2d at 1202 & n. 4 (very
recent case quoting the language in Boelens awarding victory to
the purported "majority view"); Olmstead, 1997 WL 155410, at
*2-3 (same). Moreover, post-1963 United States Supreme Court
decisions have toppled this aspect of the Hazel Bishop holding.
That Second Circuit case expressly followed Brown v. Eastern
States Corp. (4th Cir. 1950) 181 F.2d 26, 28-29, cert. denied,
340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631 (1950), which has been
"eviscerated" by the Supreme Court. See Kimsey v. Snap-On Tools
Corp. (W.D.N.C. 1990) 752 F. Supp. 693, 694-95 (citing Cohill;
United Mine Workers of Am. v. Gibbs (1966) 383 U.S. 715, 86
S.Ct. 1130, 16 L.Ed.2d 218); see generally, e.g., Marcus v. AT&T
Corp. (2d Cir. 1998) 138 F.3d 46, 57 ("In general, where the
federal claims are dismissed before trial, the state claims
should be dismissed as well"); see also 28 U.S.C. § 1367(c)(3).
One case in this District has embraced the general policy to
remand. Certilman v. Becker (S.D.N.Y. 1992) 807 F. Supp. 307,
309-10 (Motley, J.). That decision cited the Supreme Court in
Cohill, supra, for the proposition that district courts have
discretion to remand even though they must consider
"manipulation" as a factor weighing against a remand. Id.
Nobody denies this. However, Certilman did not acknowledge any
specific opposing authority or argument, simply noting that
plaintiffs had moved quickly to remand and that returning to
state court "would merely effectuate plaintiffs' original choice
of a state forum." Id. at 310.
Since both general rules contain flaws,*fn1 we believe that,
rather than fixate upon a bright-line rule, we should glean from
the full range of cases the circumstances upon which to focus a
fact-intensive inquiry. Applying this approach, we find that, in
the atypical case before us, the balance of factors weighs
against remand even if we permitted the complaint to be amended.
It makes more sense to remand if the particular plaintiffs did
not intentionally maneuver the forum. See Cohill, 484 U.S. at
357, 108 S.Ct. 614. Even the remand-friendly Baddie Court
expressed concern about malicious forum-shopping, and thus it
suggested that the state court, after remand, can consider
sanctioning plaintiffs who acted in "bad faith" or "for the sole
purpose of putting defendants through the removal-remand
procedure." 64 F.3d at 490 n. 3. However, a serious inquiry in
the first instance by the federal court into possible bad faith
seems more efficient and more apt to discourage plaintiffs from
testing the boundaries of ethical advocacy.
The most innocent request to strike federal claims materializes
when a plaintiff did not initially realize that his complaint
would be construed as containing federal subject matter. See,
e.g., Moscovitch, 25 F. Supp.2d at 79 ("it does not appear that
the plaintiff intended his original claims . . . to be federal in
character and he did not seek relief under a federal statute");
Dula v. McPherson, No. 99 CV 347, 1999 WL 1939238, at *2-3
(M.D.N.C. Aug. 4, 1999) (no forum manipulation when it appeared
that "plaintiff never intended to bring any federal claim";
complaint did not cite any federal statutes).
Less innocently but still relatively acceptably, a particular
plaintiff may seek to avoid a federal venue but also have
other, substantive reasons to alter his pleadings. See, e.g.,
Olmstead, 1997 WL 155410, at *3 (the court was "not convinced
that plaintiffs' sole purpose is to destroy federal
jurisdiction"; it was "not persuaded that plaintiffs have
eliminated all federal claims in a bad faith attempt to defeat
federal jurisdiction" when "the main thrust of plaintiffs'
original complaint was state law breach of contract claims . . .
and . . . third party beneficiary claims") (emphasis added);
Kimsey, 752 F. Supp. at 694 (the court could "envision a host of
reasons" why plaintiffs no longer wanted to pursue federal RICO
claims, "including the expense and complexity" of such claims).
In the case at bar, this factor tends to persuade us to deny
plaintiffs' motion to remand, for plaintiffs have manifestly
resolved to manipulate their forum without any reasonable or fair
justification. First, plaintiffs must have known that they were
advancing federal claims, for they invoked the United States
Constitution in three logical places in their complaint. In so
doing, they risked removal. Moreover, they waited months and then
surprised their opponents and us with their motion when
threatened with potential motions to compel and for summary
judgment. This timing suggests unreasonable delay*fn2 and
perhaps even a kind of retaliatory intent.
Also, the instant plaintiffs proffered very weak arguments for
remand and installed them in reply papers. Cf. Pierotti, 937
F. Supp. at 1308 (plaintiffs made a series of implausible
arguments in support of remand in a manner that, had the court
agreed to their request, would have denied defendants any
opportunity to respond). Finally, plaintiffs candidly admitted at
oral argument that they had no additional reason beyond
forum-shopping for now seeking to hinge their case on state
Prejudice, Resource-Wasting, & Untimeliness
We must also contemplate other variables, and we now turn to
the three interrelated factors of prejudice, resources, and time.
When plaintiffs promptly request amendment and remand, less
chance exists that the federal court or the defendants have
expended significant time or assets on motions, conferences, or
other aspects of federal procedure. In fact, in many of the cases
condoning remand, the plaintiff had moved within days after
removal, before discovery and before any attempt at resolution on
the merits. See, e.g., Certilman, 807 F. Supp. at 308, 310
("early stages" of litigation; no prejudice to defendants; motion
to remand filed eleven days after removal); Baddie, 64 F.3d at
489, 491 (motion filed "with all due speed," sixteen days after
removal); Moscovitch, 25 F. Supp.2d at 79 (motion to remand
before answer, discovery, or scheduling order); Chow, 1999 WL
144873, at *3 (no initial pretrial conference or discovery); In
re Bridgestone, 128 F. Supp.2d at 1199-1200 (motion to remand
filed two days after removal); Riley v. Carson Pirie Scott &
Co., 946 F. Supp. 716, 717 (E.D.Wis. 1996) (the litigation had
In contrast, in the current case, plaintiffs waited over seven
months to file for remand, some discovery has already occurred
under the Federal Rules, and this Court has become quite familiar
with the case through pre-motion conferences. Cf. Carbonara v.
Olmos, No. CV 93-7548 SVW, 1994 WL 370031, at *2 (C.D.Cal. Mar.
4, 1994) (federal courts had "not received full briefing on the
merits" and had "not expended any substantial judicial resources
toward resolving the merits"). Thus, remand would postpone the
litigation, waste judicial resources, and perhaps cause
inconsistences in discovery procedure. Similarly, we find that
defendants would suffer appreciable prejudice and inconvenience
in having to file their summary judgment motion weeks later than
they anticipated in front of a judge unfamiliar with the
Finally, we deny not only plaintiffs' motion to remand but also
their motion for leave to amend their complaint. Plaintiffs admit
that they asked for amendment solely to induce remand, and we
have decided not to remand in any event. If within twenty days
plaintiffs can (and choose to) provide a legitimate reason to
revise their complaint, we will consider that request, but only
if such revision will not significantly delay the proceedings
before us or prejudice their adversaries. Barring such a showing,
this litigation will move ahead with the federal and state claims
as alleged in the October 1999 amended complaint.
For the foregoing reasons, we DENY plaintiffs' motion for leave
to amend their complaint and DENY their motion to remand.