Gondolfo v. Town of Carmel
| Decision Date | 08 February 2021 |
| Docket Number | No. 20-CV-9060 (CS),20-CV-9060 (CS) |
| Parties | JESSICA GONDOLFO, ROBERT CAVALLARO, TODD MCCORMACK, EDWARD WECHSLER, JOSEPH ARMISTO, and GERARD HANRAHAN, Plaintiffs, v. TOWN OF CARMEL, TOWN OF CARMEL TOWN BOARD, TOWN OF CARMEL PLANNING BOARD, TOWN OF CARMEL ZONING BOARD OF APPEALS, MICHAEL CARNAZZA, in his official capacity as Town of Carmel Building Inspector, NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS, HOMELAND TOWERS, LLC, and MAPLE HILL ESTATES HOMEOWNERS ASSOCIATION, INC., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Alan J. Knauf
Jonathan R. Tantillo
Knauf Shaw LLP
Rochester, New York
Robert D. Gaudioso
Carlotta Cassidy
Snyder & Snyder, LLP
Tarrytown, New York
d/b/a Verizon Wireless and Homeland Towers, LLC
Gregory L. Folchetti
Costello & Folchetti, LLP
Carmel, New York
Town Board, Town of Carmel Planning Board, Town of Carmel
Before the Court are Plaintiffs' motion to remand or, alternatively, for a preliminary injunction, (Doc. 18), and the motion to dismiss of Defendants New York SMSA Limited Partnership d/b/a Verizon Wireless and Homeland Towers, LLC (together, the "Wireless Defendants"), (Doc. 28). For the following reasons, Plaintiffs' motion to remand is GRANTED, and the other motions are DENIED as moot.
The following facts are drawn from the Complaint, , which I accept as true for the purposes of the motion to remand. See Skornick v. Principal Fin. Grp., 383 F. Supp. 3d 176, 178 n.1 (S.D.N.Y. 2019). Because the validity of a removal involves a jurisdictional inquiry, I may draw additional facts where necessary from the parties' submissions, such as their affidavits and declarations, see Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Winters v. Alza Corp., 690 F. Supp. 2d 350, 353 n.3 (S.D.N.Y. 2010), but it is not necessary to do so here.
In August 2018, the Wireless Defendants applied for approval from the Town of Carmel Planning Board to build two wireless telecommunications facilities: one on Dixon Road and one on Croton Falls Road. (Compl. ¶ 17.) After more than a year of review and hearings, the Board denied the applications in October 2019. (See id. ¶¶ 18-28.) Soon after, the Wireless Defendants filed suit in federal court against the Town of Carmel, the Town of Carmel Town Board, the Town of Carmel Planning Board, the Town of Carmel Zoning Board of Appeals, Town Building Inspector Michael Carnazza in his official capacity (together, the "Town Defendants"), and theTown of Carmel Environmental Conservation Board,1 alleging that the denial of their applications was unlawful under the Telecommunications Act of 1996 ("TCA"). (Id. ¶¶ 31-32.) The lawsuit ended with a settlement agreement in which the Town agreed to issue permits for the Dixon Road facility and a facility to be located on Walton Drive rather than Croton Falls Road. (Id. ¶¶ 36-38.) In May 2020, U.S. District Court Judge Philip M. Halpern entered the stipulation of settlement and consent order that memorialized the agreement. See Stipulation of Settlement & Consent Order, N.Y. SMSA Ltd. P'ship v. Town of Carmel, No. 19-CV-10793 , ECF No. 25.2
On October 20, 2020, Plaintiffs (who live near the proposed Walton Drive facility) brought an Article 78 proceeding in state court against the Town Defendants, the Wireless Defendants, and Maple Hill Estates Homeowners Association, Inc., seeking to invalidate the consent order on various state law grounds. (See Compl. ¶¶ 1-9.) Specifically, Plaintiffs allege that the Town lacked the power to approve construction of the Walton Drive facility without subjecting it to the review that the other facilities were required to undergo, and that the approval violates N.Y. Town Law § 274-b, the State Environmental Quality Review Act ("SEQRA"), N.Y. Gen. Mun. Law § 239-m, N.Y. Pub. Off. Law § 103 (the "Open Meetings Law"), the Town Code, and the Town Zoning Code. (Id. ¶¶ 1-3, 62-95.)
On October 28, Defendants removed the action to this Court, asserting federal question jurisdiction. (Notice of Removal ¶¶ 7, 9.) Plaintiffs filed a letter contemplating a motion to remand or, alternatively, a motion for a preliminary injunction enjoining construction of theWalton Drive facility. (Doc. 11.) Defendants responded, (Docs. 16-17), and the Court held a pre-motion conference on December 7 and set out a briefing schedule for Plaintiffs' motion. (See Minute Entry dated Dec. 7, 2020.) After Plaintiffs filed their motion, (Doc. 18), the Wireless Defendants filed a letter contemplating a motion to dismiss for failure to state a claim, (Doc. 19), and I ordered them to file their motion in conjunction with their opposition to Plaintiffs', (Doc. 24). The Town Defendants opposed Plaintiffs' motion to remand but took no position on Plaintiffs' alternative request for a preliminary injunction, and they did not join the Wireless Defendants' motion to dismiss. (Doc. 30 ("Town Ds' Opp.") at 3.) Briefing on Plaintiffs' motion concluded on January 13, 2021, (see Doc. 33 ("Ps' Reply")), and briefing on the Wireless Defendants' motion concluded on January 20, (see Docs. 35-36).
As a general matter, removal jurisdiction must be "strictly construed," Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002), and any doubts should be resolved against removability "out of respect for the limited jurisdiction of the federal courts and the rights of states," In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007). The party seeking removal bears the burden of demonstrating that removal is proper. See McCulloch Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141, 145 (2d Cir. 2017).
Under 28 U.S.C. § 1441(a), defendants may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." "[A] district court, when determining whether it has original jurisdiction over a civil action, should evaluate whether that action could have been brought originally in federal court." Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748, reh'g denied, 140 S. Ct. 17 (2019). "This requires a district court to evaluate whether the plaintiff could have filed its operative complaint in federalcourt, either because it raises claims arising under federal law or because it falls within the court's diversity jurisdiction." Id. In this case, Defendants removed on the basis that the Complaint raises claims arising under federal law. (Notice of Removal ¶ 9.)3
"Ordinarily, determining whether a particular case arises under federal law turns on the 'well-pleaded complaint' rule." Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004) (internal quotation marks omitted). "In particular, the existence of a federal defense normally does not create statutory 'arising under' jurisdiction, and a defendant may not generally remove a case to federal court unless the plaintiff's complaint establishes that the case 'arises under' federal law." Id. (citation, internal quotation marks, alteration, and emphasis omitted). "Thus, a defense that relies on the preclusive effect of a prior federal judgment or the pre-emptive effect of a federal statute will not provide a basis for removal." Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003) (citations omitted).
Plaintiffs assert that this case must be remanded to state court because they have pleaded only state law claims and this Court consequently lacks subject matter jurisdiction. (See Doc. 18-2 ("Ps' Mem.") at 4.) But Defendants contend that Plaintiffs have artfully framed the issues in the Complaint as state law issues to avoid federal jurisdiction. (See Doc. 27 ("Wireless Ds' Opp.") at 1, 8, 14.) They also argue that this Court has jurisdiction over the case because the TCA preempts Plaintiffs' state law claims, (see Wireless Ds' Opp. at 1-2, 9, 11, 14; Town Ds' Opp. at 5-7), because Plaintiffs seek to invalidate a federal consent order, (see Wireless Ds' Opp. at 1, 7-9; Town Ds' Opp. at 4-5, 9), and because Plaintiffs could have intervened in federal courtafter the consent order was entered, (see Wireless Ds' Opp. at 11-12, Town Ds' Opp. at 6). I address each argument in turn.
The "artful pleading" rule is "a corollary to the well-pleaded complaint rule . . . pursuant to which [a] plaintiff cannot avoid removal by declining to plead 'necessary federal questions.'" Romano, 609 F.3d at 518-19 (quoting Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998)). Under this rule, there are three situations "in which a complaint that does not allege a federal cause of action may nonetheless arise under federal law for purposes of subject matter jurisdiction": (1) "if Congress expressly provides, by statute, for removal of state law claims as it did in the Price-Anderson Act"; (2) "if the state law claims are completely preempted by federal law, such as those that must be brought under the Labor Management Relations Act, the Employee Retirement Income Security Act, or the National Bank Act"; and (3) "in certain cases if the vindication of a state law right necessarily turns on a question of federal law." Fracasse v. People's United Bank, 747 F.3d 141, 144 (2d Cir. 2014) (internal quotation marks, alteration, and citations omitted). The third situation is "extremely rare" and confined to a "special and small category of cases." Gunn v. Minton, 568 U.S. 251, 257-58 (2013) (internal quotation marks omitted); accord Tantaros v. Fox News Channel, LLC, 427 F. Supp. 3d 488, 493 (S.D.N.Y. 2019), appeal filed, No. 20-3413 (2d Cir. Oct. 6, 2020).
The first two situations are inapplicable here because Congress has not expressly provided for the removal of Plai...
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