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Robbins v. City of New York

United States District Court, E.D. New York

May 19, 2017



          Brian M. Cogan, Judge

         When a plaintiff takes inconsistent positions about whether to maintain federal claims that led to the removal of the action to federal court, her ultimate decision to proceed on only the state claims warrants dismissal of the state claims without prejudice, not remand.


         Plaintiff originally brought this employment discrimination action in state court, alleging that she was discriminated against and subjected to a hostile work environment because she is over 50 and Jewish. She alleged four causes of action - violation of (1) her “federal constitutional rights”; (2) her “state constitutional rights”; (3) New York Executive Law § 296; and (4) New York City Administrative Code § 8-101, et seq. Based on her first cause of action, defendants timely removed the case to this Court. See 28 U.S.C. § 1441, et seq.

         Upon my review of the removed state court complaint, it was clear that plaintiff came nowhere near the requirements to plead a claim under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). There was not one word connecting her protected status with the adverse events alleged. Nor did it appear that the events about which she was complaining constituted adverse employment actions or rose to the level of a hostile work environment. Virtually in toto, she alleged that defendants, acting collectively and without differentiating between them, (1) “took control” (in some unspecified manner) of her assignments as a nurse, as a result of which she was unable to complete her work; (2) “took [unspecified] steps to make it appear as if the plaintiff was incompetent and unable to perform her duties as the school nurse”; (3) “directed that the payroll secretary at the said school to intentionally and/or recklessly tamper [in some unspecified way] with the plaintiff's payroll records, ” without any allegation that this tampering had cost plaintiff any money; and (4) “took various other [unspecified] steps to create for the plaintiff a hostile work environment and to discriminate against her solely by reason of her age and her religion.” Because plaintiff had neither the need nor the opportunity to meet federal pleading standards prior to removal, I entered an Order, pursuant to Fed.R.Civ.P. 81(c), [1] giving her a choice: either file an amended complaint that dropped the “federal constitutional claim, ” in which case I would decline supplemental jurisdiction over the state law claims and remand them to state court, or file an amended complaint that met the requirements for a federal pleading.

         Plaintiff chose to attempt the latter course, and filed an amended complaint that again included the “federal constitutional” claim. The amended complaint added allegations that (1) defendants refused to give plaintiff assistants or aides, even though the school had over 1000 children; (2) defendants required her to leave the building by 6:00 p.m., even if she had not finished her work; (3) she received an “unsatisfactory” job performance evaluation; (4) when she showed up for the first day of school, she was told to report to another school, and when she asked for an explanation, one of the defendants told her it was because the other defendants “didn't like her”; (5) defendants had a meeting with her at which they rescinded her transfer to the second school, but one of the defendants told the others, in front of her, that if they wanted to get rid of plaintiff, they would have to write her up; (6) when she resumed her work at the first school, defendants did in fact write her up at least three times, but falsely; (7) she was given a new set of guidelines and told by an unidentified person “not to get too involved with the children” and not to talk to security officers in the building; and (8) when she complained to defendant Ryan that she was overworked, defendant Ryan told her to “get a thicker skin.” There were no facts alleged that tended to show that these events occurred because plaintiff was over 50 and Jewish.

         Defendants then moved to dismiss the amended complaint for failing to meet federal pleading standards. Instead of opposing the motion, plaintiff submitted a letter, recounting the history of the case and advising that she had changed her mind about pursuing a claim under federal law:

On behalf of the plaintiff I hereby withdraw and discontinue only the first cause of action brought exclusively pursuant to federal law. By reason of the withdrawal and discontinuance this Honorable Court no longer has jurisdiction over this matter. It is therefore requested that with respect to the remaining causes of action that Your Honor issue an Order of Remand to Supreme Court, Queens County.


         A federal court has a continuing obligation to examine its subject matter jurisdiction sua sponte. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The question before me is, therefore, the effect of plaintiff's letter on this Court's subject matter jurisdiction.

         Plaintiff's effort to unilaterally “discontinue” her federal claim is ineffective. Federal Rule of Civil Procedure 41(a)(1)(A) provides that “the plaintiff may dismiss an action without a court order” by, inter alia, filing a pre-answer notice. Plaintiff may therefore unilaterally dismiss this action, but the Rule does not authorize her to dismiss a single claim. See Harvey Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953) (“Rule 41(a)(1) provides for the voluntary dismissal of an ‘action' not a ‘claim'; the word ‘action' as used in the Rules denotes the entire controversy, whereas ‘claim' refers to what has traditionally been termed ‘cause of action.'”).

         In addition, even if plaintiff could unilaterally dismiss her federal claim, she would still be mistaken in asserting that I “no longer [have] jurisdiction over this matter.” The case was properly removed based on federal question jurisdiction as to plaintiff's federal claim and supplemental jurisdiction as to her state law claims. Since jurisdiction vested in this Court, subsequent events cannot deprive the Court of that jurisdiction. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938).

         Obviously, plaintiff now wants to return to state court and is willing to abandon her federal claim to do so. There is a procedure to do this. It consists of a two-step process. The first step is to eliminate the federal claim. This can be done by filing an amended complaint under Federal Rule of Civil Procedure 15(a) that does not contain the federal claim. Because plaintiff has already filed an amended complaint, leave of court is required under Rule 15: “[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The second step is to seek remand under 28 U.S.C. § 1367, which provides that “[t]he district courts may decline to exercise supplemental jurisdiction if . . . the district court has dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3).

         Because plaintiff's intent is quite clear from the letter, I will treat the letter as a motion to amend her complaint under Rule 15(a) to withdraw her federal claim, and for me to decline to exercise supplemental jurisdiction over her ...

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