Borrello et al v. Hochul et al
| George M Borrello, Christopher W Tague, Michael Lawler and Uniting NYS, LLC |
| Kathleen C Hochul, Mary T. Bassett, The New York State Department of Health and Public Health and Health Planning Council |
| 1:2022cv00281 |
| April 12, 2022 |
| US District Court for the Western District of New York |
| Lawrence J Vilardo |
| Constitutional - State Statute |
| 28 U.S.C. § 1446 Notice of Removal |
| None |
Docket Report
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| Document Text |
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| Filing 14 AMENDED COMPLAINT against All Defendants, filed by Christopher W Tague, Michael Lawler, George M Borrello, Uniting NYS, LLC.(Marcelle, Thomas) |
| Filing 13 TEXT ORDER granting #9 Motion to Amend, Motion to Remand. Because leave to amend should be "freely give[n]," see Fed. R. Civ. P. 15(a), the motion to amend is granted. Although the defendants argue that they would be prejudiced by amendment, none of the relevant considerations for prejudice are present here. See Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) ("In determining what constitutes 'prejudice,' we consider whether the assertion of the new claim would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction."); see also Green v. Schmelzle, 2019 WL 4276994, at *4 (W.D.N.Y. Sept. 10, 2019) ("[A] court may [also] find prejudice where many documents have been destroyed or are otherwise unavailable." (citation and internal quotation marks omitted)). After amendment, the plaintiffs' pleading presents only issues of state law. "When plaintiffs drop their federal claims, federal courts have the discretion to determine whether to remand the state claims or to retain the supplemental jurisdiction that was acquired at the time of removal under 28 U.S.C. 1367." Nanavati v. New Sch. for Soc. Research, 2020 WL 1876359, at *2 (S.D.N.Y. Apr. 15, 2020) (alterations and citation omitted). "Once a district court's discretion is triggered under 1367(c)(3), it balances the traditional 'values of judicial economy, convenience, fairness, and comity[]' in deciding whether to exercise jurisdiction." Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). And "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors will point toward declining to exercise jurisdiction over the remaining state-law claims." Id. (alterations omitted) (quoting Cohill, 484 U.S. at 350 n.7). Comity essentially is dispositive of the plaintiffs' motion here. The plaintiffs' claims, which turn exclusively on New York State law and the New York State Constitution, are best addressed by New York State courts, not this Court. Considering the heavy weight of comity, as well as the scant resources expended on this case so far and the neutral factors of convenience and fairness, the Court remands the case to state court. For the reasons stated above and those stated on the record today, see Docket Item 12, the plaintiffs' motions to amend and remand, Docket Item 9, are GRANTED. The case is hereby remanded to New York State Supreme Court, Cattaraugus County. The Clerk of the Court shall close the case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/19/2022. (WMH)-CLERK TO FOLLOW UP- |
| Filing 12 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument re: #9 MOTION to Amend/Correct Petition and #6 MOTION to Remand to State Court held on 4/19/2022. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Following oral argument, the Court granted plaintiffs' motion to amend and motion for remand to State Court as stated on the record. Appearances by ZOOM Video Conference. For plaintiffs: Thomas J. Marcelle. For defendants: AAG David J. Sleight and AAG Stephanie J. Calhoun. (Court Reporter Ann M. Sawyer.) (CMD) |
| Clerk sent a certified copy of 13 Text Order to New York State Supreme Court, County of Cattaraugus. (CGJ) |
| Filing 11 REPLY to Response to Motion re #9 MOTION to Amend/Correct Petition filed by George M Borrello, Michael Lawler, Christopher W Tague, Uniting NYS, LLC. (Attachments: #1 Memorandum in Support Reply)(Marcelle, Thomas) |
| ATTENTION CORPORATION PLAINTIFFS/DEFENDANTS: All Corporate Disclosure Statements pursuant to Fed. R. Civ. P.7.1(b) are to be filed within seven (7) days of this notice. (KM) |
| Filing 10 MEMORANDUM in Opposition re #6 MOTION to Remand to State Court via Order to Cause under L.R. 10, #9 MOTION to Amend/Correct Petition filed by Mary T. Bassett, Kathleen C Hochul, Public Health and Health Planning Council, The New York State Department of Health. (Attachments: #1 Certificate of Service)(Sleight, David) |
| Filing 9 MOTION to Amend/Correct Petition by George M Borrello, Michael Lawler, Christopher W Tague, Uniting NYS, LLC. (Attachments: #1 Affidavit with redline amended petition, #2 Memorandum in Support motion to amend petition and remand)(Marcelle, Thomas) |
Filing 8
Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Status Conference held on 4/13/2022. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Court reviewed submissions, and following oral argument directed plaintiffs to file a motion to amend complaint and motion for remand by 4/14/2022. Defendants' response is due 4/15/2022. Plaintiffs' reply, if any, is due by noon on 4/18/2022. Oral Argument set for 4/19/2022 at 9:30 AM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Lawrence J. Vilardo. PLEASE NOTE: The proceeding described herein will be held remotely. Dial-in instructions will be emailed directly to the parties. Public access to the proceeding can be obtained by viewing Judge Vilardo's calendar on the public website at www.nywd.uscourts.gov, or by contacting Judge Vilardo's chambers at (716) 551-1621. Appearances by AT&T Teleconference. For plaintiffs: Thomas J. Marcelle and Roberta A. Flower-Cox. For defendants: AAG David J. Sleight and Stephanie J. Calhoun. (Court Reporter Ann M. Sawyer.) (CMD)
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Filing 7
TEXT ORDER. Status Conference set for 4/13/2022 at 4:00 PM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Lawrence J. Vilardo. PLEASE NOTE: The proceeding described herein will be held remotely. Dial-in instructions will be emailed directly to the parties. Public access to the proceeding can be obtained by viewing Judge Vilardo's calendar on the public website at www.nywd.uscourts.gov, or by contacting Judge Vilardo's chambers at (716) 551-1621. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/13/2022. (CMD)
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| Filing 6 MOTION to Remand to State Court via Order to Cause under L.R. 10 by George M Borrello, Michael Lawler, Christopher W Tague, Uniting NYS, LLC. (Attachments: #1 Affidavit in support of OSC, #2 Memorandum in Support of Remand)(Marcelle, Thomas) |
| Filing 5 AMENDED COMPLAINT against All Defendants, filed by Christopher W Tague, Michael Lawler, George M Borrello, Uniting NYS, LLC.(Marcelle, Thomas) |
| Filing 4 AMENDED DOCUMENT by George M Borrello, Michael Lawler, Christopher W Tague, Uniting NYS, LLC. Amended Petition. (Marcelle, Thomas) |
| Filing 3 NOTICE of Appearance by Thomas J. Marcelle on behalf of All Plaintiffs (Marcelle, Thomas) |
| Case assigned to Hon. Lawrence J. Vilardo. Notification to Chambers of on-line civil case opening. (CGJ) |
| AUTOMATIC REFERRAL to Mediation The ADR Plan is available for download at #http://www.nywd.uscourts.gov/alternative-dispute-resolution.(CGJ) |
| Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at #http://www.uscourts.gov/services-forms/forms. (CGJ) |
| Filing 2 CONTINUATION OF EXHIBITS to #1 Notice of Removal,,, Amended. (Calhoun, Stephanie) |
| Filing 1 NOTICE OF REMOVAL by Kathleen C Hochul with certificate of service attached from New York State Supreme Court, case number 91239. (Filing fee $ 402 receipt number ANYWDC-4552094), filed by Kathleen C Hochul. (Attachments: #1 Verified Petition, #2 Oder to Show Cause Proposed, #3 Memorandum in Support, #4 Affidavit Cox Attorney Affirmation, #5 Affidavit Borrello Aff, #6 Affidavit Tague Aff, #7 Affidavit Lawler Aff, #8 Affidavit Viola Aff, #9 Affidavit Stone Aff, #10 Affidavit Masti Aff, #11 Exhibit Cox Attorney Affirmation Exhibits, #12 Exhibit Petition Exhibits including NY Court Docket Listr sheet, #13 State Court RJI, #14 Amended Verified Petition, #15 Order to Show Cause Proposed, #16 Second Amended Verified Petition, #17 Granted Order to Show Cause, #18 Civil Cover Sheet)(Calhoun, Stephanie) |
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