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July 8, 2002


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 379.


On December 3, 2001, United Mutual began this summary holdover proceeding against Andujar in New York County Housing Court. 12/3/01 Petition Holdover*fn2 ("the Petition"), Ex. D to Defendants' Notice of Motion ("Def. Mot.")*fn3. The action, if successful, would result in a judgment of possession against Andujar and her eviction from her apartment, which is owned by United Mutual. Id. ¶ 12.

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 ...

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