Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Akers v. Barrett

United States District Court, W.D. New York

July 30, 2014

THOMAS B. AKERS, Plaintiff,


RICHARD J. ARCARA, District Judge.

Nearly a year-and-a-half after he filed it in New York Supreme Court, the Defendant removed this case to federal court, invoking this Court's supplemental jurisdiction. Before the Court is the Plaintiff's motion to remand, which, for the reasons stated below, the Court grants. Further, because the Defendant's removal lacks an objectively reasonable basis, the Court awards the Plaintiff fees and expenses incurred in responding to the Defendant's removal petition.


The Plaintiff and the Defendant were a same-sex couple who lived together for nearly twenty years in a relationship in which they "agreed... that [their] assets would be jointly apportioned and utilized to maintain their lifestyle together as life partners and invest[ed] [for their] mutual benefit." Docket No. 5-1 ¶ 7. However, in 2011, the parties' relationship ended, id. ¶ 10, and in November 2012, the Plaintiff commenced this action in New York Supreme Court, Erie County seeking to unwind the parties' legal affairs.

The Plaintiff's state action raises common law claims for fraud, conversion, intentional infliction of economic harm, and the imposition of a constructive trust over the parties' jointly-held assets. See Docket No. 1-4. Central to the present motion, the Plaintiff also "claim[s] that he is entitled to beneficial ownership of certain nonparty corporations" of which the Defendant is president. Docket No. 1 ¶ 5. The parties' filings in this Court show that, at the time of removal, the state court action had been bogged down in contentious discovery disputes for at least the past year.

In April 2014, after the state court action had been ongoing for nearly a year-and-a-half, the Plaintiff filed an employment discrimination complaint in this Court. See Akers v. BBG North LLC, et al., 14-CV-237 (RJA-HBS). The defendants in the federal action are the corporate entities of which the Defendant is president and in which the Plaintiff claims an ownership interest. Docket No. 1 ¶ 10. The Plaintiff claims in the federal action that, in violation of Title VII of the Civil Rights Act of 1964, "he was discriminated against based upon his sexual orientation and intimate relationship with [his] direct supervisor, the President of the Defendant corporations." See 14-CV-237 Docket No. 1 ¶ 2. The Plaintiff also claims in the federal action that he "suffers from a debilitating disease" which was "aggravated by the ongoing discrimination, retaliation and harassment he received from the Defendants and specifically by the cancellation of his health care coverage." Id. ¶¶ 3-4.

On June 24, 2014, the Defendant in the state action filed a notice seeking to remove the state action to this Court. See 14-CV-501, Docket No. 1. The Defendant argues that because both the federal action and the state action "challenge the extent to which the Plaintiff's personal relationship with the removing defendant effected his employment relationship with the defendant corporations in the federal action, " id. ¶ 14, there is a "common nucleus of operative fact" between the cases. Id. ¶ 16. The Defendant accordingly "seeks to remove the state cause of action to federal court pursuant to [the supplemental jurisdiction statute] 28 U.S.C. § 1367." Id. ¶ 16. The Plaintiff then filed the motion to remand that is now before the Court. Docket No. 5.


A. The Merits of the Defendant's Removal Petition

The Defendant argues that removal is proper in this case because the facts of the state action and the facts of the federal action are so intertwined as to constitute a "common nucleus of operative fact." According to the Defendant, the cases' factual similarity justifies this Court's exercise of supplemental jurisdiction over the state action pursuant to 28 U.S.C. § 1367. See generally Dkt. No. 7-6. However, the Defendant's argument confuses supplemental jurisdiction, which cannot form the basis for removal, with original jurisdiction, which may do so. Contrary to the Defendant's suggestion, § 1367 does not confer original jurisdiction; instead, as its name suggests, § 1367's grant of jurisdiction supplements the original jurisdiction that a district court must first have over a claim. See 28 U.S.C. § 1367(a). See also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 554 (2005) (" [O]nce a court has original jurisdiction over claims in the action, it may exercise supplemental jurisdiction over additional claims that are part of the same case or controversy.") (emphasis added). In other words, supplemental jurisdiction cannot exist without original jurisdiction.

In this case, the Defendant's argument for removal is premised on a misunderstanding of 28 U.S.C. § 1441, the statute that authorizes removal of certain state court actions. That statute only allows removal of cases over which a district court would have original jurisdiction. See 28 U.S.C. § 1441(a) (authorizing removal of "any civil action... of which the district courts of the United States have original jurisdiction ") (emphasis added). See also Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) ("Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.") As discussed above, § 1367 is not a grant of original jurisdiction and, therefore, cannot independently support removal. See McCelland v. Longhitano, 140 F.Supp.2d 201, 203 (N.D.N.Y. 2001) ("[Defendants' similar argument] incorrectly attempts to turn 28 U.S.C. § 1367(a) into an independent source of removal jurisdiction."); In re Estate of Tabas, 879 F.Supp. 464, 467 (E.D. Pa. 1995). Thus, "a removal petition... may not base subject-matter jurisdiction on the supplemental-jurisdiction statute, even if the action which a defendant seeks to remove is related to another action over which the federal district court already has subject-matter jurisdiction, and even if removal would be efficient." Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 456 (6th Cir. 1996). See also Tabas, 879 F.Supp. 464 at 467 ("[T]he supplemental jurisdiction statute does not allow a party to remove an otherwise unremovable action to federal court for consolidation with a related federal action.")

It is uncontested that the state action which the Defendant seeks to remove to this Court raises no federal question. See Docket No. 7-5 ¶ 6 ("Plaintiff correctly points out that there is no federal question directly at issue in the instant action.") To the contrary, each of the Plaintiff's claims is based on state common law. See Docket No. 1-4. It does appear that the Court may have had original jurisdiction over the state action based on the parties' diverse citizenship.[1] Id. ¶¶ 1-2. However, the Defendant does not seek to remove the action on the basis of diversity, presumably because the case would have had to have been removed within thirty days of being commenced in state court. See 28 U.S.C. § 1446(b). That date passed almost a year-and-a-half ago.

In any event, "[w]here, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper." United Food & Comm. Workers Union v. CenterMark Properties Meriden Sq., Inc., 30 F.3d 298, 301 (2d Cir. 1994). The Defendant has not satisfied that burden, and the Court accordingly ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.