United States District Court, S.D. New York
July 7, 2004.
ANGELA BOGGS, KIMBERLY HAWKES, SHEREECE HOLMAN, STACI POLLARD, RHONDA ROENFELDT, MADILYN WADE, Plaintiffs,
DIE FLIEDERMAUS, LLP., d/b/a LE BAR BAT, JERRY SHALLO, PATRICK KELLY, LARRY CERRONE, SIMON AZOULEY, COLIN WALSH, MATT TORTOSO, JOHN DOES 1-5, Defendants.
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
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
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
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 Tortoso are dismissed without prejudice.
This action is closed.
It is so ordered.
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