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HOM v. BRENNAN

January 29, 2004.

GEORGE HOM, Plaintiff, -against- THE HONORABLE LAWRENCE BRENNAN, J.F.C, THE HONORABLE CARNELL FOSKEY, J.F.C., DOROTHY PHILLIPS, ESQ., LAW DEPARTMENT SUPERVISOR, DEBBIE MEHR, FAMILY COURT CLERK SUPERVISOR, NEW YORK STATE GOVERNOR GEORGE PATAKI, Versuslaw GROSSMAN, ESQ., Defendants


The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2

MEMORANDUM OF DECISION AND ORDER

The plaintiff George Hom (the "plaintiff" or "Hom"), proceeding pro se, commenced an action in the New York State Supreme Court, County of Nassau against the Honorable Lawrence Brennan, J.F.C. ("Judge Brennan"), the Honorable Carnell Foskey, J.F.C. ("Judge Foskey"), Dorothy Phillips, Esq. ("Phillips"), Debbie Mehr ("Mehr"), and New York State Governor George Pataki ("Pataki") (collectively, the "State Defendants"), and Lois Grossman, Esq. ("Grossman") (collectively, the "defendants") alleging, among other things, that the defendants deprived him of his civil rights in violation of 42 U.S.C. § 1983 ("Section 1983").

Grossman filed a Notice of Removal to this Court with the consent of the State Defendants. Presently before the Court are: (1) the plaintiff's motion to remand the action back to the New York State Supreme Court, County of Nassau with costs and sanctions; (2) Grossman's motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Fed.R. Civ. P.") 12(b)(6); and (3) Six separate motions by the plaintiff to supplement his complaint so as to set forth events which have happened since the filing of his complaint.

  I. BACKGROUND

  The facts are taken from the plaintiff's verified complaint unless otherwise noted. Page 3

  The complaint states that the plaintiff is currently involved in litigation in the Nassau County Family Court against his former spouse Jane Zullo (the "Family Court action").

  On or about November 1, 2001, the Family Court action was re-assigned to Judge Brennan. The plaintiff alleges that during the time in which Judge Brennan was presiding over the family court case, he "deliberately displayed open bias against [the] plaintiff." Compl. ¶ 6. For example, the plaintiff alleges that from November 1, 2001 through February, 2003, Judge Brennan held scheduled monthly open court appearances in which the he allegedly "continuously, willfully, and repeatedly threatened and intimidated" the plaintiff, Compl. ¶ 8b. The plaintiff further alleges that from November 1, 2001 through March 27, 2003, Judge Brennan allegedly "delayed the administration of his judicial duties" by not addressing certain motions. Compl. ¶ 10.

  On or about March 13, 2002, Phillips, the supervising law clerk at the Family Court, held a closed door conference with respect to a then pending custody/visitation proceeding. After this proceeding, Phillips allegedly threatened and coerced the plaintiff into settling his custody petition. The plaintiff further claims that on or about June 11, 2002, Phillips allegedly conspired with a representative at the Nassau-Suffolk Law Services by engaging in "ex-parte communications with Nassau-Suffolk Law Services" in which the "actual directives of a certain court order dated March 22, 2002 were altered." Compl. ¶ 15(b). As a result, the plaintiff allegedly suffered "extraordinary damages." Page 4

  Almost one year later, on or about March 25, 2003, the plaintiff filed an Article 78 petition in the New York State Supreme Court, County of Nassau to, among other things, demanding that Judge Brennan recuse himself from the Family Court action. On April 3, 2003, Judge Brennan recused himself and the case was subsequently transferred to Judge Foskey.

  On April 7, 2003, upon Judge Foskey's request, Grossman, a supervising attorney with the Nassau-Suffolk Law Services Committee who represents Zullo, provided a case status report and allegedly misstated certain information regarding an incarceration proceeding. The plaintiff alleges that after he responded to Grossman's allegedly incorrect status report, Judge Foskey held an incarceration proceeding after which the plaintiff was incarcerated overnight. The plaintiff further alleges that his incarceration was also caused by Judge Brennan's delays in reducing his court rulings into writing. Grossman allegedly gave two boxes of donuts to "someone in the Law Department office" in exchange for documents which the plaintiff later learned was a copy of his order to show cause. Compl. ¶ 31.

  On or about April 21, 2003, the plaintiff, proceeding pro se, commenced this action in the New York Supreme Court, County of Nassau. The complaint entitled "Amended Article 78 Proceeding [] and Sect[ion] 1983 Litigation in State Court" asserts nine causes of action including, among other things that Judge Brennan, together with the other defendants, conspired to deprive the plaintiff of his civil rights as guaranteed to him under the United Page 5 States Constitution. Compl. ¶ 46.

  On May 7, 2003, Grossman filed a Notice of Removal to this Court with the consent of the State Defendants. On May 16, 2003, the plaintiff filed a motion to remand the case back to the New York State Supreme Court, County of Nassau. Presently before the Court are: (1) the plaintiff's motion to remand the action back to the New York State Supreme Court, County of Nassau with costs and sanctions; (2) Grossman's motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); and (3) Six motions by the plaintiff to supplement his complaint so as to set forth events which have happened since the filing of his complaint. The Court notes that the State Defendants make reference to a motion to dismiss the complaint that they filed in the State Supreme Court, County of Nassau prior to the filing of the Notice of Removal. However, because that motion was never filed with this Court, it cannot be considered by this Court.

  III. DISCUSSION

 A. Remanding the Action

  28 U.S.C. § 1447(c) states that a case shall be remanded "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction [over an action removed from a state court to a federal court]." Subject matter jurisdiction may be based on a federal question, see 28 U.S.C. § 1331, or diversity of citizenship. See 28 U.S.C. § 1332. Page 6

  In order to determine whether the Court has subject matter jurisdiction over an action removed from a state court to a federal court, a court is limited to an examination of the allegations on the face of the plaintiff's complaint in the underlying action. W. 14th St. Comm. Corp. v. 5 W. 14th Owners Corp., 815 F.2d 188, 193 (2d Cir. 1987); see also Hernandez v. Conriv Realty Assoc., 116 F.2d 35, 37 (2d Cir. 1997) ("Aside from diversity of citizenship jurisdiction, a case generally may be filed in federal court only if a federal question appears on the face of the plaintiff's `well-pleaded complaint.' ") (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425 (1987)). Whether a complaint raises a federal question,
must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.
Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724 (1914). Thus, regardless of whether a defendant intends to assert a defense invoking federal law, a case cannot be removed unless there exists either a federal question or diversity jurisdiction on the face of the original complaint. See Hernandez, 116 F.3d at 38.

  Here, not only has the plaintiff titled his action "Sect[ion] 1983 Litigation," but throughout the complaint, the plaintiff specifically states that jurisdiction is based on, among other things, Section 1983. In addition, the plaintiff makes several references to alleged violations of his civil rights and specifically indicates that "[Judge] Brennan[,] together with Page 7 most if not all of the . . . co-defendants, ha[ve] conspired to retaliate against [the plaintiff]. . . and to deprive [the] [p]laintiff of his [c]ivil [r]ights as guaranteed to him under the United States Constitution." Compl. ¶ 46.

  Thus, because the underlying complaint raises a federal question under Section 1983, the Court has subject matter jurisdiction over this action. Accordingly, Hom's motion to remand this case ...


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