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
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, 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 ...