United Mutual Houses, L.P. v. Andujar

• Decision Date: 08 July 2002
• Docket Number: No. 02 CIV.3503(SAS).,02 CIV.3503(SAS).
• Citation: 230 F.Supp.2d 349
• Parties: UNITED MUTUAL HOUSES, L.P., Petitioner, v. Teresita ANDUJAR, Respondent.
• Court: U.S. District Court — Southern District of New York

230 F.Supp.2d 349

UNITED MUTUAL HOUSES, L.P., Petitioner, v. Teresita ANDUJAR, Respondent.

No. 02 CIV.3503(SAS).

United States District Court, S.D. New York.

July 8, 2002.

Dean Dreiblatt, Esq., Rose & Rose, New York City, for Petitioner.

Scott A. Bursor, Esq., New York City, for Respondent.

OPINION AND ORDER

SCHEINDLIN, District Judge.

United Mutual Houses, L.P. ("United Mutual") commenced this summary holdover proceeding under Article 7 of the New York Real Property Actions and Proceedings Law ("RPAPL") in the Civil Court of New York County, Housing Part, to evict Teresita Andujar. Andujar then removed the action to this Court on the ground that it raises questions of federal law.

United Mutual now moves to remand the action to the Housing Court, arguing that removal was improper because no essential question of federal law exists to justify this Court's jurisdiction.¹ Additionally, United Mutual seeks an award of attorneys' fees and costs incurred as a result of the removal. For the reasons set forth below, United Mutual's motion to remand is granted, and its motion to recover attorneys' fees and costs is denied.

I. LEGAL STANDARD

"It is axiomatic that, for removal to be considered proper, the removing party must demonstrate that this Court is endowed with the requisite subject matter jurisdiction." Frontier Ins. Co. v. MTN Owner Trust, 111 F.Supp.2d 376, 378 (S.D.N.Y.2000) (citing Caterpillar v. Williams, 482 U.S. 386, 391-92, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

There are two instances in which lower federal courts have federal question jurisdiction over a case on removal: (1) the complaint establishes that federal law creates the cause of action or (2) plaintiff's right to relief depends on the resolution of a material question of federal law. See Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 194 F.Supp.2d 246, 254 (S.D.N.Y.2002) (citing Franchise Tax Bd. of State of California v. Constr. Laborers Vacation Trust for Southern California, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Moreover, a plaintiff is master of the complaint—neither a federal defense nor counterclaim will create removal jurisdiction. See The Holmes Group v. Vornado Air Circulation Sys., 535 U.S. 826, ___ - ___, 122 S.Ct. 1889, 1893-94, 153 L.Ed.2d 13 (2002).

"Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns." Frontier, 111 F.Supp.2d at 378 (quoting Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). "All doubts should be resolved in favor of remand." Id. at 379.

II. FACTUAL BACKGROUND

On December 3, 2001, United Mutual began this summary holdover proceeding against Andujar in New York County Housing Court. 12/3/01 Petition Holdover² ("the Petition"), Ex. D to Defendants' Notice of Motion ("Def.Mot.")³. The action, if successful, would result in a judgment of possession against Andujar and her eviction from her apartment, which is owned by United Mutual. Id. ¶ 12.

Andujar makes the following claims by way of background:⁴ In April 2001, after being contacted by the New York City Administration for Children's Services, Andujar took in her goddaughter, Marybeth Cordero. Respondent's Memorandum of Law in Opposition to Petitioner's Motion to Remand ("Resp.Mem.") at 3. Cordero, then seventeen, was in need of a home following the death of her mother and grandmother. Id. When Cordero moved in, Andujar immediately initiated the process of becoming her foster parent. Id.

United Mutual alleges that Andujar failed to notify her landlord of the additional person residing with her, and Andujar does not contest that claim. Petition ¶ 10i; Resp. Mem. at 3. Sometime that spring, United Mutual learned of Cordero's presence in Andujar's apartment. Resp. Mem. at 3. United Mutual officials informed Andujar that she was violating the rules of her lease. Id. A series of negotiations ensued involving the landlord, Andujar, and a social worker from Catholic Home Bureau (the agency where Andujar was enrolled in a foster parents' program). Id. at 4. On June 21, 2001, with Andujar under threat of eviction, Catholic Home Bureau removed Cordero from the home. Id.

On November 6, 2001, United Mutual served Andujar with a Notice of Termination. 11/6/01 Notice of Termination, Ex. C to Def. Mot. ("the Notice"). The Notice stated that the basis for Andujar's eviction was her violation of various provisions of her Lease Agreement ("the Lease") and appended Rules and Regulations governing occupancy and notification ("the Rules"). Id.; 12/1/00 Lease and Addenda, Ex. B to Def. Mot. The pertinent provisions read as follows:

... Occupancy in the Apartment is limited to Income Qualified Tenants and those members of your household listed below [Andujar and her three-year-old son, Ryan], up to the limitations set by the landlord for the number of occupants for each size unit.

Lease ¶ 1.

The occupancy of all units will be limited to those who are identified on the lease or have otherwise received written permission from the Association to occupy a Mutual Housing unit. Any violation of this policy may be grounds for eviction.

Rules ¶ I.

All residents are considered legal residents, not subject to eviction unless ... [their] behavior or actions evidence ... willful misrepresentation or concealment by a resident of any material fact which would affect admission eligibility requirements imposed by the Supervisory agencies.

Rules ¶ II.C.3.

The Notice alleged that Andujar had violated these provisions by having a foster child living in her apartment, failing to request or receive the landlord's permission and, when confronted about Cordero, claiming that she was a cleaning woman. Notice at 2-3. The Notice also asserted that "governmental rules and regulations governing the subject building and its occupancy" prohibited female and male children from sharing a bedroom, as well as a child from sharing a room with an adult. Id. Finally, the Notice contained this statement "Further, your actions could jeopardize the landlord's eligibility under the applicable tax credit programs and subject it to penalties." Id. at 3. The Holdover Petition filed by United Mutual in Housing Court enumerated all of the allegations contained in the Notice. Petition ¶¶ 5, 10a-10j.

On January 29, 2002, Andujar filed an answer and demanded a Bill of Particulars specifying, inter alia, the governing statutes referred to in the Notice and Petition. 1/29/02 Respondent's Answer and Demand for a Bill of Particulars, attached to Notice of Removal ("Remov.Not."). United Mutual's Bill of Particulars cited "Section 42 of the United States Internal Revenue Code, and the Low Income Housing Tax Credit Program, Executive Order No. 135 dated February 27, 1990, 9 NYCRR Part 2040 and the United States Public Health & Welfare Law, Title 42, Chapters 8, 44 and 45 and the Low Income Housing Credit Regulatory Agreement." It further explained that "[t]he landlord's tax credit program would be jeopardized if it does not provide accurate information in its certification regarding the household compositions in the building. Tenant certifications are relied upon by the landlord." 3/26/02 Petitioner's First Bill of Particulars ¶¶ 3, 5; 4/18/02 Petitioner's Second Bill of Particulars ¶ 1 (collectively "Bill of Particulars"), attached to Remov. Not.

Andujar filed motions to dismiss and for summary judgment, which the Housing Court denied.⁵ 3/20/02 Respondent's Motion to Dismiss; 4/12/02 Respondent's Motion for Summary Judgment, attached to Remov. Not.; Memorandum of Law in Support of Petitioner's Motion to Remand at 3; Resp. Mem. at 8. On May 7, 2002, she removed the case to this Court, asserting that United Mutual's Bill of Particulars indicates that its holdover proceeding raises questions of federal law. Remov. Not. ¶ 2. The Notice of Removal explains:

Since United Mutual's claim in this action is based on United's contention that the termination of Ms. Andujar's lease and subsequent eviction were required by federal law in order to preserve United Mutual's federal tax credits, this action arises under federal law, and the resolution of United Mutual's claim will turn on a substantial questions [sic] of federal law, including, but not limited to (i) whether the federal laws relied on by United Mutual do in fact prohibit occupancy of the subject apartment by families including children of different sexes, and (ii) whether such an interpretation of federal law could be consistent with the Fair Housing Act's prohibition of discrimination based on familial status. ...

Remov. Not. ¶ 3.

Prior to removing the holdover proceeding to this Court, Andujar filed an action here against United Mutual and various co-defendants, alleging violations of the Fair Housing Act and other federal claims, state and local law violations, and intentional infliction of emotional distress. See 3/20/02 Complaint, Andujar et al. v. Hewitt et al., No. 02 Civ. 2223. That action is still pending. In the interim, Cordero has returned to live with Andujar and her son.

III. DISCUSSION

A. The Motion to Remand

"Simply including a federal issue in a state cause of action ... does not in itself warrant federal question jurisdiction. There must be a substantial federal question at issue, as opposed to a minor or technical addition to a state claim." See Briarpatch Ltd., 194 F.Supp.2d at 254-55 (citing D'Alessio v. New York Stock Exch., 258 F.3d 93, 99 (2d Cir.2001)). Where the resolution of a federal law question is not essential to the plaintiff's right to relief, no removal jurisdiction exists. See Arrey v. Beaux Arts II, L.L.C., 101 F.Supp.2d 225, 227 (S.D.N.Y.2000). Because the Lease...