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July 7, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Plaintiffs Angela Boggs, Kimberly Hawkes, Staci Pollard, Rhonda Roenfeldt, Madilyn Wade, and Shereece Holman (collectively, "Plaintiffs") have moved to dismiss the remaining counts in the complaint against the individual defendants Laurent M. Cerrone ("Cerrone"), Patrick Kelly ("Kelly"), and Matt Tortoso ("Tortoso") without prejudice, for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or, alternatively, pursuant to Federal Rule of Civil Procedure 41(a)(2). For the reasons set forth below, the motion is granted, and the remaining claims are dismissed without prejudice.

Prior Proceedings

  Plaintiffs commenced this action on April 2, 1999 against Die Fliedermaus, LLP, d/b/a Le Bar Bat, as well as a number of individual defendants, asserting claims under Title VII, 42 U.S.C. § 1981 and New York law for, inter alia, hostile work environment based on race, race discrimination, retaliation, defamation, and libel per se. By an opinion dated December 13, 1999, Plaintiffs' action was consolidated with a pending action brought by the Equal Employment Opportunity Commission ("E.E.O.C.") and certain of Plaintiffs' claims were dismissed. E.E.O.C. v. Die Fliedermaus, LLC, 77 F. Supp.2d 460 (S.D.N.Y. 1999). The E.E.O.C. action was subsequently closed. By an opinion of April 3, 2002, Plaintiffs' motion for partial summary judgment as to several of the individual defendants was denied. Boggs v. Die Fliedermaus, LLP, 255 F. Supp.2d 291 (S.D.N.Y. 2003). By an opinion of October 7, 2003, Plaintiffs' motion for reconsideration was granted as to Kelly, and the motions for summary judgment of certain defendants as well as Plaintiffs' motion for the imposition of sanctions against Cerrone were denied. Boggs v. Die Fliedermaus, LLP, 286 F. Supp.2d 291 (S.D.N.Y. 2003).

  Following the dismissal or discontinuance of claims against various of the defendants, on May 28, 2004, Plaintiffs filed the instant motion to dismiss the remaining state law causes of action against the remaining individual defendants, Cerrone, Kelly and Tortoso, without prejudice. Thereafter, by a letter dated June 3, 2004, Plaintiffs' counsel informed the Court that Plaintiffs had settled the matter with Tortoso. None of the remaining individual defendants has submitted opposition to Plaintiffs' motion, and the motion was marked fully submitted on June 24, 2004 without oral argument.


  "Normally, motions to dismiss for lack of [subject matter] jurisdiction pursuant to Rule 12(b)(1) must be decided before motions pursuant to other Federal Rules of Civil Procedure are considered. . . ." Liberty Ridge LLC v. RealTech Systems Corp., 173 F. Supp.2d 129, 134 (S.D.N.Y. 2001). Whether Plaintiffs properly may move for dismissal of their own claims pursuant to Rule 12(b)(1), Fed.R. Civ. P., need not be resolved here, as a court may address, sua sponte, the question of subject matter jurisdiction at any time. See Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ("[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte."); FDIC v. Four Star Holding Co., 178 F.3d 97, 100 n. 2 (2d Cir. 1999) (noting that the court "may examine subject matter jurisdiction, sua sponte, at any stage of the proceeding").

  The fact that the remaining claims in this action arise under state law does not require automatic dismissal for lack of subject matter jurisdiction. To the contrary, "`the district court may, at its discretion, exercise supplemental jurisdiction over state law claims even where it has dismissed all claims over which it had original jurisdiction, [although] it cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction.'" Parker v. Della Rocco, 252 F.3d 663, 666 (2d Cir. 2001) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).

  The statutory authority for the exercise of such supplemental jurisdiction is found in 28 U.S.C. § 1367(c)(3), according to which a district court "may decline to exercise supplemental jurisdiction over a claim . . . if . . . [it] has dismissed all claims over which it has original jurisdiction," as is the case here. 28 U.S.C. § 1367(c)(3). The decision whether to exercise supplemental jurisdiction is within the discretion of the district court. See Tops Market, Inc. v. Quality Markets, Inc., 142 F.3d 90, 103 (2d Cir. 1998); Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 563 (2d Cir. 1991). In employing that discretion, the district court should "consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction. . . ." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).

  It is not uncommon for district courts to exercise supplemental jurisdiction over state law claims even after the federal claims that provided original jurisdiction have been dismissed. See Mizuna, Ltd. v. Crossland Fed. Sav. Bank, 90 F.3d 650, 657 (2d Cir. 1996); Enercomp, Inc., v. McCorhill Pub., Inc., 873 F.2d 536, 545-46 (2d Cir. 1989); Ackerman v. Nat'l Prop. Analysts, Inc., 887 F. Supp. 494, 510 (S.D.N.Y. 1992); Philan Ins. Ltd. v. Frank B. Hall & Co., 786 F. Supp. 345, 347 (S.D.N.Y. 1992); Philatelic Foundation v. Kaplan, 647 F. Supp. 1344, 1348 (S.D.N.Y. 1986).

  Nonetheless, "[i]n general, where the federal claims are dismissed before trial, the state claims should be dismissed as well." Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994); Baylis v. Marriott Corp., 843 F.2d 658, 664-65 (2d Cir. 1988)); see also Carnegie-Mellon Univ., 484 U.S. at 350 n. 7 ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims."); United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."); 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp. 251 F. Supp.2d 1215, 1222 (S.D.N.Y. 2002) (declining to exercise supplemental jurisdiction and noting that "[t]his is the preferred course when all federal claims have been dismissed pre-trial," particularly where "difficult issues of state law more appropriately addressed to the state courts" are at stake); Louis v. St. Luke's Roosevelt Hosp. Ctr., No. 01 Civ. 11400 (RWS), 2002 WL 1684175, at *3 (S.D.N.Y. July 24, 2002) (noting the "well-established rule of dismissing pendant state and municipal claims where the federal claim providing jurisdiction has been dismissed").

  As there are no longer any claims based on federal law in this action and with due consideration of concerns of judicial economy, convenience and fairness, pursuant to 28 U.S.C. § 1367(c)(3) this Court declines to exercise supplemental jurisdiction over the remaining state law claims. See Gilmore v. Amityville Union Free School Dist., 305 F. Supp.2d 271, 279 (E.D.N.Y. 2004) (declining to exercise supplemental jurisdiction where federal claims had been dismissed); see also Block v. First Blood Assocs., 988 F.2d 344, 351 (2d Cir. 1993) (concluding that, even though "courts adjudicating cases similar to plaintiffs' have declined to dismiss pendent claims after the federal claims were dismissed," the district court did not abuse its discretion by "refusing to exercise pendent jurisdiction over plaintiffs' state law claims when their federal claims were dismissed before trial"). Accordingly, the remaining claims as to Cerrone, Kelly, and Tortoso are dismissed without prejudice and the alternative grounds for Plaintiffs' motion under Fed.R. Civ. P. 41(a)(2) need not be reached.


  For the reasons set forth above, the motion to dismiss is granted and the Plaintiffs' remaining claims against defendants Cerrone, Kelly, and ...

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