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Wisoff v. City of Schenectady

March 9, 2009


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



On January 3, 2007, plaintiff Andrew E. Wisoff commenced the within action against defendant City of Schenectady, New York ("the City") in New York State Supreme Court, Schenectady County. Plaintiff alleged that Article X of Chapter 167 of the Code of Ordinances of the City of Schenectady (Ordinance No. 85-75) (Schenectady Rental Certificate Ordinance) ("the Ordinance") violated plaintiff's civil rights and protections guaranteed by Article I, Section 12 of the New York State Constitution and the Fourth Amendment to the United States Constitution. (Dkt. No. 1). Plaintiff sought the following relief: (1) a declaration that the Ordinance is unconstitutional, null and void as the Ordinance requires plaintiff to submit to a warrantless inspection of his property; (2) a declaration that the Ordinance is unconstitutional, null and void as the Ordinance is inherently coercive, denying plaintiff his right to derive income or economic value from his property; (3) a Temporary Restraining Order and/or Preliminary Injunction, restraining and/or enjoining defendant from commencing any prosecution (not yet commenced), against plaintiff for alleged violation of the Ordinance, until this action is heard or decided by the Court; (4) a Permanent Injunction enjoining defendant from enforcing the Ordinance "excepting, any prosecution in Schenectady City Court which commenced before the filing of this action"; (5) ordering defendant to reimburse plaintiff for all fees and penalties paid under the Ordinance; and (6) ordering defendant to reimburse plaintiff for costs and disbursements associated with the within action. (Dkt. No. 1). On January 9, 2007, defendant removed the action to district court asserting jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §1441(a).

Presently before the Court are three motions: (1) plaintiff's motion (Dkt. No. 6) for a remand of the entire action to state court; (2) defendant's cross-motion (Dkt. No. 9) for an award of summary judgment pursuant to Fed. R. of Civ. P. 56; and (3) plaintiff's cross-motion (Dkt. No. 17) for summary judgment.


On August 12, 1985, the City of Schenectady enacted Chapter 167, Article X of the Code of the City of Schenectady, Sections 167-56 through and including 167-70. The Ordinance was allegedly enacted to, "promote the health and safety of tenants and to alleviate conditions of substandard housing, including slums and blight". The Ordinance applied to all rental units in buildings containing two or more rental units.*fn1 The applicable sections of the Code of the City of Schenectady New York provide as follows:

§167-60. Application; standards; issuance; temporary certificate.

A. Rental Certificate

(1) Whenever a vacancy shall exist in a rental unit and a leasing is about to occur, or whenever there is a change in occupancy, the owner shall submit a written application for a rental certificate. This application shall indicate the name and address of the owner, the locationof the property and the identity of the rental unit by number or other suitable means.

(2) Within five working days of receipt of an application, the Building Inspector shall inspect the rental unit to determine if the rental unit is in compliance with the following standards.*fn2

§167-61. Right to enter and inspect.

During regular business hours or in an emergency, the Building Inspector or his representative or any duly authorized City representative, upon the showing of proper credentials and the discharge of his duties, may enter any building or rental unit within a building. If access to such property is refused, the Building Inspector shall apply for a search warrant or court order in an appropriate court and upon showing that there is reasonable grounds to believe that a building or rental unit within a building is rented and occupied in violation of this article.

Code of the City of Schenectady Art. X, §167-60, §167-61 (2006).

At the relevant time, plaintiff resided in Niskayuna, New York and owned twelve 2-family homes located in the City of Schenectady.*fn3 Plaintiff did not reside in those homes but rented apartments (or rental units) within those homes to individuals and families. Plaintiff claims he was prosecuted in Schenectady City Court for alleged violations of the Ordinance.*fn4 Plaintiff commenced the within action seeking declaratory and injunctive relief, as well as costs for disbursements.


Plaintiff argues that 28 U.S.C. § 1441(c) requires the Court to remand the entire action (federal and state law claims) to state court.*fn5 In the alternative, plaintiff contends that pursuant to 28 U.S.C. §1367, the Court has the discretion to remand the federal claims and state law claims to state court.*fn6 Defendant argues that the matter was properly removed to federal court based upon plaintiff's Fourth Amendment claims. Defendant further asserts that as the Court has original jurisdiction over the federal claims, the Court should retain jurisdiction over the supplemental state claims.

I. 28 U.S.C. § 1441(c)

Plaintiff argues that pursuant to § 1441(c), the district court shall "remand all matters in which state law predominates". 28 U.S.C. § 1441(c) provides:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or in its discretion, may remand all matters in which State law predominates.

28 U.S.C. § 1441(c) (1994). Plaintiff seemingly relies upon the last sentence of the statute in support of remand of the entire action. However, the Court has no authority to remand a federal claim, such as plaintiffs' Fourth Amendment claim herein, over which it has original jurisdiction.

See Hickerson v. City of New York, 932 F.Supp. 550, 559 (S.D.N.Y. 1996). With regard to state law claims, § 1441(c) applies to cases where the federal question claims are 'separate and independent' from the state law claims with which they are joined in the complaint. Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 786 (3d Cir. 1995); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 354 (1988) (holding that section 1441(c) does not apply when pendent claims are involved because "pendent claims are not 'separate and independent' within the meaning of the removal statute"); see also Nelson v. City of Rochester, 492 F.Supp.2d 282, 287 (W.D.N.Y. 2007) (holding that if state and federal claims are not independent, § 1441(c) has no bearing on the issue of removal). Where there is a single injury to plaintiff for which relief is sought, arising from an interrelated series of events or transactions, there is no separate or independent claim or cause of action under § 1441(c). Am. Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951). The inquiry is whether the federal and state claims rely on the same series of events. Murphy v. Bank of Am. Nat. Trust and Sav. Ass'n, 172 F.3d 876 (9th Cir. 1999) (holding that plaintiff's RICO claims were inextricably intertwined with and arose from the same nucleus of facts as the state law causes of action).

The Court finds that § 1441(c) has no application to plaintiff's federal or state law claims. As stated, the Court has no authority to remand the federal claims over which the Court has original jurisdiction. Moreover, plaintiff's federal and state claims are not "separate and independent" as the claims arise out of the same set of operative facts, the passage of the Ordinance. See City of New Rochelle v. Town of Mamaroneck, 111 F.Supp.2d 353, 371-373 (S.D.N.Y 2000). Plaintiff filed an action alleging that the Ordinance violated both the New York State and United States Constitution. See Dunlop v. City of New York, 2006 WL 2853972, at *3 (S.D.N.Y. 2006) (holding that the plaintiff left himself "wide open for removal" with the inclusion of federal claims in his complaint). Thus, the Court has no authority to remand any of plaintiff's claims to ...

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