The opinion of the court was delivered by: John G. Koeltl, U.S. District Judge
The plaintiff, the Property Clerk of the New York City Police
Department, filed this action in the New York State Supreme Court, New
York County (Index No. 405221/01), seeking a judgment declaring that the
plaintiff's retention of a vehicle belonging to the defendant is lawful
and proper, and ordering the forfeiture of that vehicle. After filing an
answer and counterclaim, the defendant removed the action to this Court.
The plaintiff now moves, pursuant to 28 U.S.C. § 1447 (c), to remand
the matter to the New York State Supreme Court on the basis that this
Court lacks subject matter jurisdiction over the case.
The New York City Police Department seized the defendant's car, a 1988
Honda Accord, on or about August 10, 2001. (Compl. ¶ 4; Ans. ¶
7; Declaration of Louise Moed, dated February 22, 2002 ("Moed Decl."),
Ex. A.) On August 14, 2001, the defendant requested the return of his
vehicle. (Moed Decl., Ex. C.) On or about September 6, 2001, the
plaintiff filed a summons and complaint in the New York State Supreme
Court, New York County, thereby initiating the present action. (Moed
Decl. ¶ 7 and Ex. D.) The complaint alleges that forfeiture is proper
[t]he vehicle seized was used by [the defendant] as the
instrumentality of, and/or to aid and further the
commission of a crime, to wit, violation of Vehicle and
Traffic Law Section 1192(4) Driving While Ability
Impaired by Drugs, in that the defendant operated the
subject vehicle while his ability was impaired by
drugs. . . . The subject vehicle is thereby subject to
forfeiture under New York City Administrative Code
Section 14-140 and Title 38 of Chapter 12 of the Rules
of the City of New York.
On October 24, 2001, the defendant filed an answer and counterclaim.
(Moed Decl. Ex. E.) As defenses, the defendant's answer asserts that the
complaint fails to state a claim; that the state court lacks personal
jurisdiction over the defendant; that the action was not timely
commenced; and that the plaintiff lacks authority to proceed under the
New York City Administrative Code because the defendant was not arrested
for a crime. (Ans. ¶¶ 3-6.) The defendant's counterclaim alleges that
he was not charged or arrested for a criminal offense; that the plaintiff
did not file or serve the complaint timely upon the defendant's initial
request for the return of the vehicle; and that the plaintiff violated
the defendant's rights under the Fourth and Fourteenth Amendments to the
Constitution, 42 U.S.C. § 1983, and 42 U.S.C. § 1988. (Ans.
On October 31, 2001, the defendant filed a notice of removal in this
Court. The plaintiff filed this motion to remand the case on February
A district court is required to remand a case "[i]f at any time before
judgment it appears that the district court lacks subject matter
jurisdiction . . . ." 28 U.S.C. § 1447(c). The removing party bears
the burden of proof in establishing its right to a federal forum. See
R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.
1979); Grunwald v. Physicians Health Servs. of New York, Inc., No. 97
Civ. 5654, 1998 WL 146226, at *2 (S.D.N.Y. Mar. 25, 1998); Grace v.
Corp. of Lloyd's, No. 96 Civ. 8334, 1997 WL 607543, at *3 (S.D.N.Y. Oct.
2, 1997). The defendant argues that this Court has jurisdiction over the
case because the defendant's counterclaim is based, at least in part, on
the federal Constitution and federal law. See 28 U.S.C. § 1331
(federal question jurisdiction).
"The presence or absence of federal question jurisdiction is governed
by the well-pleaded complaint rule." Marcus v. AT&T Corp., 138 F.3d 46,
52 (2d Cir. 1998); see also Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987); D'Alessio v. New York Stock Exchange, Inc., 258 F.3d 93, 100
(2d Cir.), cert. denied, 122 S.Ct. 666 (2001); Hernandez v. Conriv Realty
Assocs., 116 F.3d 35, 38 (2d Cir. 1997). Under that rule, "federal
question jurisdiction exists only when the plaintiff's own cause of
action is based on federal law, and only when [the] plaintiff's
well-pleaded complaint raises issues of federal law." Marcus, 138 F.3d at
52 (internal citations omitted). "Thus, a plaintiff may avoid federal
jurisdiction by pleading only state law claims, even where federal claims
are also available, and even if there is a federal defense." Fax
Telecommunicaciones, Inc. v. AT&T, 138 F.3d 479, 486 (2d Cir. 1998)
(citing Caterpillar, 482 U.S. at 392 (1987)). The well-pleaded complaint
rule thereby "makes the plaintiff the master of the claim." Caterpillar,
482 U.S. at 392 (1987)
In this case, the sole basis that the defendant proffers for federal
subject-matter jurisdiction is his counterclaim. However, like a
defense, a counterclaim is insufficient to create removal jurisdiction
under the well-pleaded complaint rule. Wallace v. Wiedenbeck,
985 F. Supp. 288, 291 (N.D.N.Y. 1998) (collecting cases); Mem'l Hosp. for
Cancer and Allied Diseases v. Empire Blue Cross & Blue Shield, No. 93
Civ. 6682, 1994 WL 132151, at *5 (S.D.N.Y. Apr. 12, 1994);
Barnhart-Graham Auto, Inc. v. Green Mountain Bank, 786 F. Supp. 394, 396
(D. Vt. 1992); but see Property Clerk v. Smith, No. 00 Civ. 2133, 2000 WL
1725017, at *2 (S.D.N.Y. Nov. 17, 2000) (indicating that a "narrow
jurisdictional realm" exists in which a counterclaim may confer federal
Fax Telecommunicaciones confirms that federal counterclaims do not
confer removal jurisdiction. In that case, the plaintiff raised a federal
counterclaim, but there was no other basis for federal jurisdiction. Fax
Telecommunicaciones, 138 F.3d at 485-87. On review, the Court of Appeals
for the Second Circuit stated that "if [the plaintiff] had objected to
removal in the district court, we would vacate the judgment and remand
with instructions to return the case to state court." Id. at 487.
Although a different analysis may apply where no motion to remand has
been made and the district court renders a decision on the merits, ...