United States District Court, N.D. New York
LAW FIRM, LLC Attorneys for Plaintiff
OF THE NEW YORK STATE ATTORNEY GENERAL
BOSMAN, ESQ. TIMOTHY P. MULVEY, AAG
MEMORANDUM-DECISION AND ORDER
D'AGOSTING U.S. DISTRICT JUDGE.
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.
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.
before the Court is Plaintiff's December 1, 2017 motion
to remand. See Dkt. No. 24.
A. Motion to Remand
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).
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).
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.
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 ...