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Boger v. New York State Office of Parks

United States District Court, N.D. New York

January 8, 2018

KATHLEEN BOGER, Plaintiff,
v.
NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION; JOANNE D. MITCHELL; LAURA TULLY; JOE MORISETTE; JANE DOES; and JOHN DOES, Defendants.

          BOSMAN LAW FIRM, LLC Attorneys for Plaintiff

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL

          AJ BOSMAN, ESQ. TIMOTHY P. MULVEY, AAG

          MEMORANDUM-DECISION AND ORDER

          MAE A, D'AGOSTING U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         On or about February 21, 2017, Plaintiff commenced this action in Onondaga County Supreme Court. See Dkt. No. 2. In her complaint, Plaintiff alleges two causes of action against Defendant New York State Office of Parks, Recreation & Historic Preservation ("NYS Parks") for discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). See Dkt. No. 2 at ¶¶ 29-34. Plaintiff also alleges two causes of action against the individually named Defendants under 42 U.S.C. § 1983 for age and gender discrimination. See Id. at ¶¶ 35-42. Finally, Plaintiff asserts three causes of action against all Defendants under the New York State Human Rights Law and the New York State Constitution. See Id. at ¶¶ 46-52.

         On March 13, 2017, Defendants removed this case from Onondaga County Supreme Court. See Dkt. No. 1. As of May 31, 2017, all Defendant have answered the complaint. See Dkt. No. 15. ON July 18, 2017, the Court issued a uniform pretrial scheduling order and discovery has been ongoing, with the parties exchanging document demands and interrogatories. See Dkt. Nos. 17 & 25.

         Currently before the Court is Plaintiff's December 1, 2017 motion to remand. See Dkt. No. 24.

         II. DISCUSSION

A. Motion to Remand

         A defendant may remove to federal court any civil action brought in a state court if the case could have originally been filed in federal court. See Shapiro v. Logistec USA Inc., 412 F.3d 307, 309-10 (2d Cir. 2005) (quoting 28 U.S.C. § 1441(a)). An action may be filed in federal court if the action "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. When a federal court has original jurisdiction over an action "arising under the Constitution, treaties or laws of the United States" pursuant to Section 1331, that action "shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b); see also Fax Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 486 (2d Cir. 1998).

         Once a case has been removed, it must be remanded "'[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.'" Shapiro, 412 F.3d at 310 (quoting 28 U.S.C. § 1447(c)). Where, as here, jurisdiction is asserted by a defendant in a removal petition, the defendant bears the burden of establishing that removal is proper. See Cal. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004) (citations omitted). If there are any doubts as to removability, they are resolved against removability "out of respect for the limited jurisdiction of the federal courts and the rights of the states." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (citation omitted). Although there is a presumption that the court has jurisdiction when the matter is brought in federal court in the first instance, "[a] defendant removing a case to federal court encounters instead the general principle that removal is disfavored and remand favored." Pollock v. Trustmark Ins. Co., 367 F.Supp.2d 293, 296-97 (E.D.N.Y. 2005) (citation omitted).

         In her motion, Plaintiff argues that this case should be remanded "pursuant to 28 U.S.C. § 1447, for lack of subject matter jurisdiction." Dkt. No. 24-3 at 3. Plaintiff claims that, in its answer, Defendant NYS Parks asserted that Plaintiff's complaint is "'barred, in whole or in part, under the Eleventh Amendment' . . . thereby manufacturing a jurisdictional bar." Id. at 3-4. Notably absent from Plaintiff's motion is any caselaw in support of her position.

         As Defendants correctly note in their response, Defendant NYS Parks does not enjoy sovereign immunity from suits alleging it discriminated against Plaintiff in violation of the prohibitions contained in Title VII or the ADEA. Further, the individually named Defendants are not entitled to sovereign immunity as government employees for claims arising against them in violation of the United States Constitution, when acting under color of state law. Therefore, the only claims or causes of action to which the ...


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