Opinion
02-CV-752A(F).
May 14, 2004
LISA L. MITCHELL, ESQ., Amherst, New York, Attorney for Plaintiff.
NIXON PEABODY LLP, SUSAN C. RONEY, ESQ., Buffalo, New York, Attorneys for Defendants.
DECISION and ORDER/REPORT and RECOMMENDATION
In accordance with prior holdings, the court has addressed the motion to remand as a non-dispositive motion. See Mahl Brothers Oil Co, Inc. v. St. Paul Fire Marine Ins. Co., 307 F.Supp.2d 474 (W.D.N.Y. 2004); Acme Elec. Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26 (W.D.N.Y. 1988). The court has addressed Plaintiff's request for injunctive relief as a dispositive matter requiring a report and recommendation pursuant to 28 U.S.C. § 636(b)(i)(B).
JURISDICTION
This matter was referred to the undersigned by the Hon. Richard J. Arcara on November 5, 2002 for determination of all pretrial matters pursuant to 28 U.S.C. §§ 636(b)(1)(A), (B), and (C), including all dispositive and non-dispositive motions. It is presently before the court on the Plaintiff's motion for remand and for a preliminary injunction, filed November 22, 2002 (Docket No. 5).
BACKGROUND
Plaintiff commenced this action on October 4, 2002 with the filing of a summons and complaint in Supreme Court, Erie County. It was removed to this court on October 24, 2002. (Docket No. 1). In his complaint, Plaintiff alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and state law causes of action for slander and defamation, negligence, and intentional infliction of emotional distress. Plaintiff seeks compensatory and punitive damages, as well as costs and attorney's fees. Specifically, Plaintiff complains that he has been unlawfully denied access to the Liberty Building in downtown Buffalo by the Defendants.
Plaintiff's equal protection claim is not pleaded under any specific federal statute providing a private right of action such as 42 U.S.C. § 12182 (prohibiting discrimination in public accommodations based on disability) or 42 U.S.C. § 2000a (prohibiting discrimination in public accommodations based on race, color, religion or national origin).
Defendants filed an answer to the complaint on October 29, 2002. (Docket No. 2). On November 22, 2002, Plaintiff filed this motion to remand the matter to state court. (Docket No. 5). Plaintiff contends that the removal papers are incomplete in that the Notice of Removal fails to include a copy of an Order to Show Cause and Temporary Restraining Order issued by Supreme Court, Erie County, with affidavits in support. Additionally, Plaintiff argues that the case raises novel and complex issues of state law which predominate over his federal claims. In the event that the motion for remand is denied, Plaintiff seeks preliminary injunctive relief allowing his access to the Liberty Building so that he may earn a living as an investigator for several law firms with offices in the building.
In their attorney's affidavit in response to the motion, Defendants state that not all Defendants have been served or correctly named. Loeb Partners has never been served, Hammerson Management terminated its existence effective December 26, 1996 and Main Place Group is a d/b/a for Violet Realty. Accordingly, the proper defendants are Hotung and Violet Realty (Docket No. 13 at 2, n. 1).
Defendant filed a response to the motion on April 21, 2004. (Docket Nos. 13, 14). Oral argument was deemed unnecessary. For the following reasons, Plaintiff's motion for remand is DENIED, and the motion for a preliminary injunction should be DENIED.
FACTS
This factual statement is taken from the pleadings and papers filed in the action.
Plaintiff alleges that he performs investigative services and day-to-day office activities in the law offices of attorneys John P. Feroleto and John McKee, both located in the Liberty Building. Effective August 26, 2002, Plaintiff was denied access to the Liberty Building by the building manager, Defendant Hotung. Defendants assert that Plaintiff was banned from the building because, after repeated warnings and a written agreement not to do so, he interfered with the effective management of the building by loitering in the lobby and distracting the security guards by asking them to run errands for him.
On August 29, 2002, Plaintiff applied to Supreme Court, Erie County for a Temporary Restraining Order ("TRO") preventing the Defendants from interfering with his access to the Liberty Building. Justice Eugene Fahey granted the TRO and Order to Show Cause on August 29, 2002. (Docket No. 5, Exh. A). However, at a hearing on August 30, 2002, the court found that the TRO was filed improperly as a special proceeding, when it should have been brought as part of an ordinary action. Accordingly, the TRO was vacated, because it was not accompanied or preceded by an index number and summons and complaint. (Docket No. 5, Exh. B). On October 4, 2002, Plaintiff filed the summons and complaint in this action in Supreme Court, Erie County.
The Defendants removed the case to this court on October 24, 2002, pursuant to 28 U.S.C. §§ 1441(b) and 1446(b). The notice of removal includes a copy of the summons and complaint. (Docket No. 1).
DISCUSSION
1. Motion for Remand
Title 28 U.S.C. § 1441(b) provides that "[a]ny civil action of which the district courts have original jurisdiction founded upon a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." Title 28 U.S.C. § 1446(b) provides that a notice of removal shall be filed within thirty days after the receipt by the defendant of the initial pleading setting forth the claim for relief. Defendant timely filed a notice of removal based on the Plaintiff's assertion of two federal causes of action, under the ADA and the Equal Protection Clause of the Constitution. Accordingly, there was a proper basis for removal. Moreover, in any civil action within the jurisdiction of a United States District Court, the federal court has supplemental jurisdiction over "all other claims that are so related to the claims and the actions within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). Here, all of Plaintiff's claims arise out of the alleged unlawful denial of his access to the Liberty Building. As such, they all "derive from a common nucleus of operative fact . . . such that [a plaintiff] would ordinarily be expected to try them all in one proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). As there is original jurisdiction over the ADA and constitutional claims, the court may retain supplemental jurisdiction over the state law claims.
The district court may decline to exercise supplemental jurisdiction over a claim if (1) the claim raises novel or complex issues of state law, (2) the state law claim "substantially predominates" over the federal claim, (3) the district court has dismissed all federal claims, or (4) there are other compelling reasons to decline jurisdiction. 28 U.S.C. § 1367(c)(1)-(4). Plaintiff's state law claims are standard causes of action in negligence, defamation and the intentional infliction of emotional distress. None are novel or in any way complex, nor can it be said that the state law claims predominate over the federal claims. Plaintiff chose to interpose federal claims with his state law claims. Defendants are entitled to have the case heard in federal court, and the district court is competent to apply state law to the state law claims. Assuming the court retains jurisdiction over Plaintiff's state law claims, an issue not before the court on Plaintiff's remand request, Plaintiff's argument confuses the right to a federal forum based on federal subject matter jurisdiction with the court's discretion to retain or deny supplemental jurisdiction over related state claims. In other words, if Plaintiff were correct that his state claims predominate, such conclusion does not warrant remand; rather, the action remains in federal court because of the federal claim and the court could dismiss the state claims pursuant to 28 U.S.C. § 1367(c).
Alternatively, Plaintiff argues that the notice of removal was improper because it did not include the papers relating to the state court TRO. Title 28 U.S.C. § 1446(a) provides that a notice of removal shall contain "a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Here, the application for a TRO was filed independently, in the nature of a special proceeding, without a summons or complaint as required by state law. See N.Y. Civ.Prac.L. R. 6311 (McKinney 2004) (motion for preliminary injunction may be served with the summons or thereafter). Supreme Court vacated the TRO when it determined that Plaintiff had followed an improper procedure. Thereafter, on October 4, 2002, Plaintiff instituted this action with the filing of a summons and complaint. Even in the unlikely event that the papers relating to the previously-filed TRO are properly a part of this action, Defendants' failure to include them in the notice of removal is not fatal to this court's jurisdiction. Federal question jurisdiction is determined by reference to the allegations in the complaint. See Chille v. United Airlines, 304 F.Supp.2d 466, 468 (W.D.N.Y. 2004). The TRO and the supporting affidavits are therefore not essential to a determination of either the propriety of removal or the Plaintiff's motion for remand In any event, those papers are now before the court, and Plaintiff has not been prejudiced by Defendants' failure to append them to the notice of removal.
2. Motion for a Preliminary Injunction
Plaintiff also seeks a preliminary injunction in the event that the court denies his motion for a remand "[A] preliminary injunction may be granted when the party seeking the injunction establishes that `1) absent injunctive relief, it will suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party.'" No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (per curiam) (quoting Otokoyama Co. Ltd. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir. 1999)). Additionally, as Plaintiff seeks a mandatory injunction to change the status quo to again allow him access to the Liberty Building, instead of an injunction to preserve the status quo, he must make an even higher showing to obtain a preliminary injunction. Bronx Household of Faith v. Board of Educ. of New York, 331 F.3d 342, 349 (2d Cir. 2003) ("[A]n even higher standard of proof comes into play when the injunction sought will alter rather than maintain the status quo. In such case, the movant must show a `clear' or `substantial' likelihood of success."); Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135 n. 3 (2d Cir. 2003) ("[A] plaintiff who seeks a `mandatory' injunction, rather than a `prohibitory' injunction, must demonstrate a `clear' or `substantial' likelihood of success.").
On a motion for a preliminary injunction, the court may hold an evidentiary hearing to adjudicate the factual issues raised by the parties. See Fed.R.Civ.P. 52(a). When the relevant facts are not in dispute or the disputed facts are amenable to resolution on a paper record, however, no hearing is required. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998) (citations omitted); accord Larouche v. Webster, 566 F.Supp. 415, 419 n. 5 (S.D.N.Y. 1983) (no hearing required where "the written evidence shows the lack of a right [to requested relief] so clearly that receiving further evidence would be manifestly pointless"). As discussed below, resolution of disputed issues of fact is not necessary for the determination of the instant motion. Accordingly, no evidentiary hearing is required.
Here, Plaintiff merely states that he suffers irreparable harm by the denial of access to the Liberty Building because he is unable to work and make a living. Where a party can be fully compensated for financial loss by a money judgment, there is no compelling reason why a preliminary injunction should be granted. Twentieth Century Fox Film Corp. v. Marvel Enters., 277 F.3d 253, 258 (2d Cir. 2002); Borey v. Nat'l Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991). Additionally, an injury to reputation is insufficient to justify the issuance of a preliminary injunction. See Stewart v. United States Immigration Naturalization Service, 762 F.2d 193, 199-200 (2d Cir. 1985). Accordingly, Plaintiff has failed to show that he will suffer irreparable harm if preliminary injunctive relief is not granted.
In addition to his insufficient showing of irreparable harm, Plaintiff has not shown a clear or substantial likelihood of success on the merits. He has set forth no facts to show that the denial of access to the Liberty Building was discriminatory, based either on his physical disabilities or race. Likewise, Plaintiff's conclusory allegations of negligence, defamation, and intentional infliction of emotional distress are insufficient to show a substantial likelihood of success on the merits. See Line Communications Corp. v. Reppert, 265 F.Supp.2d 353, 358 (S.D.N.Y. 2003) ("A preliminary injunction will not be awarded unless the rights of the parties are `indisputably clear.'"); see also Tusino v. Int'l Bhd. of Teamsters, 928 F.Supp. 319, 330 (S.D.N.Y. 1996) (conclusory allegations insufficient to show likelihood of success on merits).
CONCLUSION
The Plaintiff's motion for remand (Docket No. 5) is DENIED. It is recommended that the motion for a preliminary injunction (Docket No. 5) be DENIED.
SO ORDERED, as to the motion to remand
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendants.
SO ORDERED.