The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge
United Mutual now moves to remand the action to the Housing Court,
arguing that removal was improper because no essential question of
federal law exists to justify this Court's jurisdiction.*fn1
Additionally, United Mutual seeks an award of attorneys' fees and costs
incurred as a result of the removal. For the reasons set forth below,
United Mutual's motion to remand is granted, and its motion to recover
attorneys' fees and costs is denied.
"It is axiomatic that, for removal to be considered proper, the
removing party must demonstrate that this Court is endowed with the
requisite subject matter jurisdiction." Frontier Ins. Co. v. MTN Owner
Trust, 111 F. Supp.2d 376, 378 (S.D.N.Y. 2000) (citing Caterpillar v.
Williams, 482 U.S. 386, 391-92 (1987)). "If at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
There are two instances in which lower federal courts have federal
question jurisdiction over a case on removal: (1) the complaint
establishes that federal law creates the cause of action or (2)
plaintiff's right to relief depends on the resolution of a material
question of federal law. See Briarpatch Ltd., L.P. v. Geisler Roberdeau,
Inc., 194 F. Supp.2d 246, 254 (S.D.N.Y. 2002) (citing Franchise Tax Bd.
of State of California v. Constr. Laborers Vacation Trust for Southern
California, 463 U.S. 1, 27-28 (1983)). Moreover, a plaintiff is master of
the complaint — neither a federal defense nor counterclaim will
create removal jurisdiction. See The Holmes Group v. Vornado Air
Circulation Sys., 122 S.Ct. 1889, 1893-94 (2002).
"Removal jurisdiction must be strictly construed, both because the
federal courts are courts of limited jurisdiction and because removal of
a case implicates significant federalism concerns." Frontier, 111 F.
Supp.2d at 378 (quoting Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
109 (1941)). "All doubts should be resolved in favor of remand." Id. at
Andujar makes the following claims by way of background:*fn4 In April
2001, after being contacted by the New York City Administration for
Children's Services, Andujar took in her goddaughter, Marybeth Cordero.
Respondent's Memorandum of Law in Opposition to Petitioner's Motion to
Remand ("Resp. Mem.") at 3. Cordero, then seventeen, was in need of a
home following the death of her mother and grandmother. Id. When Cordero
moved in, Andujar immediately initiated the process of becoming her
foster parent. Id.
United Mutual alleges that Andujar failed to notify her landlord of the
additional person residing with her, and Andujar does not contest that
claim. Petition ¶ 10i; Resp. Mem. at 3. Sometime that spring, United
Mutual learned of Cordero's presence in Andujar's apartment. Resp. Mem.
at 3. United Mutual officials informed Andujar that she was violating the
rules of her lease. Id. A series of negotiations ensued involving the
landlord, Andujar, and a social worker from Catholic Home Bureau (the
agency where Andujar was enrolled in a foster parents' program). Id. at
4. On June 21, 2001, with Andujar under threat of eviction, Catholic Home
Bureau removed Cordero from the home. Id.
On November 6, 2001, United Mutual served Andujar with a Notice of
Termination. 11/6/01 Notice of Termination, Ex. C to Def. Mot. ("the
Notice"). The Notice stated that the basis for Andujar's eviction was her
violation of various provisions of her Lease Agreement ("the Lease") and
appended Rules and Regulations governing occupancy and notification ("the
Rules"). Id. 12/1/00 Lease and Addenda, Ex. B to Def. Mot. The pertinent
provisions read as follows:
. . . Occupancy in the Apartment is limited to Income
Qualified Tenants and those members of your household
listed below [Andujar and her three-year-old son,
Ryan], up to the limitations set by the ...