The opinion
EASTERN DISTRICT OF NEW YORK For Electronic Publication Only
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NEW YORK COMMUNITIES FOR
CHANGE, MARIA JORDAN AWALOM,
MONICA DIAZ, LISA ORTIZ, and
GUILLERMO VANETTEN,
Plaintiffs, MEMORANDUM & ORDER
v. 24-cv-8779 (JMA) (LGD)
24-cv-08780 (JMA) (LGD)
COUNTY OF NASSAU, THE NASSAU COUNTY
LEGISLATURE, THE NASSAU COUNTY FILED
BOARD OF ELECTIONS, BRUCE BLAKEMAN, CLERK
in his official capacity as Nassau County Executive,
1:39 pm, Dec 31, 2024
MICHAEL C. PULITZER, in his official capacity
U.S. DISTRICT COURT
as Clerk of the Nassau County Legislature,
EASTERN DISTRICT OF NEW YORK
HOWARD J. KOPEL, in his capacity as Presiding Officer LONG ISLAND OFFICE
of the Nassau County Legislature, and
JOSEPH J. KEARNEY and JAMES P.
SCHEUERMAN, in their official capacity as
commissioners of the Nassau County Board of Elections,
Defendants.
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HAZEL COADS, STEPHANIE M. CHASE, MARVIN
AMAZAN, SUSAN E. COOLS, SUZANNE A. FREIER,
CARL R. GERRATO, ESTHER HERNANDEZKRAMER,
JOHN HEWLETT JARVIS, SANJEEV
KUMAN JINDAL, HERMOINE MIMI PIERRE
JOHNSON, NEERAJ KUMAR, KAREN M.
MONTALBANO, EILEEN M. NAPOLITANO, OLENA
NICKS, DEBORAH M. PASTERNAK, CARMEN J.
PINEYRO, DANNY S. QIAO, LAURIE SCOTT, RAJA
KANWAR SINGH, AMILVIRANI, MARY G.
VOLOSEVICH, and THE NASSAU COUNTY
DEMOCRATIC COMMITTEE,
Plaintiffs,
NASSAU COUNTY, THE NASSAU
COUNTY LEGISLATURE, THE NASSAU COUNTY
BOARD OF ELECTIONS, BRUCE BLAKEMAN, in his
official capacity as Nassau County Executive, MICHAEL
C. PULITZER, in his official capacity as Clerk of the
Nassau County Legislature, HOWARD J. KOPEL, in his
capacity as Presiding Officer of the Nassau County
Legislature, and JOSEPH J. KEARNEY and JAMES P.
SCHEUERMAN, in their official capacity as
commissioners of the Nassau County Board of Elections,
Defendants.
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AZRACK, United States District Judge:
On December 23, 2024—in the middle of a trial in state court—Defendants removed these
two consolidated voting rights actions to federal court. On December 26, 2024, Plaintiffs filed a
motion seeking an expedited remand of these actions back to state court. On December 29, 2024,
Nassau County and related defendants (“Defendants”) filed their opposition briefs to the motion
to remand. For the reasons set forth below, Plaintiffs’ remand motion is GRANTED.
A. Background
The Court assumes familiarity with the procedural history of these cases.
In July 2023, Hazel Coads and other plaintiffs filed an action in state court (the “Coads
Action”) alleging that the redistricting map adopted by the Nassau County Legislature on February
28, 2023 constitutes an unlawful partisan gerrymander in violation of Section 34 of the New York
Municipal Home Rule Law (“MHRL”).
In February 2024, New York Communities for Change and other plaintiffs filed an action
in state court (the “NYCC Action”) alleging that this redistricting map diluted the voting strength
of Black, Latino, and Asian Communities in violation of both Section 34(4)(b) of the MHRL as
well as the John R. Lewis Voting Rights Act of New York (the “NYVRA”), N.Y. Election Law §
restricting map violated the MHRL’s separate prohibition on partisan gerrymandering.
These two actions were transferred to the Honorable Paul I. Marx, J.S.C., who consolidated
the actions for discovery and trial on an expedited schedule.
The two New York statutes at issue in these cases are of recent vintage. In 2021, the New
York Legislature added Section 34(4) to the MHRL. This amendment added, among other
provisions, Section 34(4)(b), which states that:
Districts shall not be drawn with the intent or result of denying or abridging the
equal opportunity of racial or language minority groups to participate in the
political process or to diminish their ability to elect representatives of their choice[.]
MHRL § 34(4)(b).
In 2022, the New York Legislature enacted the NYVRA, which contains more detailed
provisions prohibiting “voter suppression” and “vote dilution.” N.Y. Election Law § 17-206.
In contrast to these recently enacted New York state voting laws, the federal Voting Rights
Act of 1965 (the “FVRA”) is a long-standing statute with provisions covering vote dilution claims,
52 U.S.C. § 10301, that have been interpreted by the Supreme Court and the Second Circuit. In
Thornburg v. Gingles, 478 U.S. 30, 34–35 (1986), the Supreme Court interpreted 1982
amendments to the FVRA and set out the general framework for analyzing vote dilution claims
under Section 2 of the FVRA. The Gingles framework includes three preconditions as well as a
totality of the circumstances test that courts consider if the preconditions have been satisfied. See
Allen v. Milligan, 599 U.S. 1 (2023).
Various filings in this litigation, including motion practice before Justice Marx,
Defendants’ Notices of Removal, and the parties briefing on the remand motion address the
potential interaction between Section 2 of the FVRA and New York’s recently enacted voting rights
laws.
actions. (Defs’ Summ. J. Mem., ECF No. 20-18.) Defendants’ summary judgment motion focused
on the MHRL partisan gerrymandering claim in the Coads Action and the NYVRA claim in the
NYCC Action. Defendants argued, inter alia, that the NYVRA is unconstitutional because it
differs from the Gingles framework for assessing vote dilution claims under the Section 2 of the
FVRA.
Plaintiffs filed their opposition to the motion on November 12, 2024. In their opposition
brief, Plaintiff stressed that Defendants had not moved for summary judgment on Plaintiffs’ MHRL
vote dilution and race discrimination claims and that the MHRL’s prohibitions “on racial vote
dilution and intentional racial discrimination . . . are at least co-extensive with Section 2 of the
[FVRA].” (Pls.’ Summ. J. Mem. at 1, ECF No. 1-16 (emphasis in original).)
With respect to their NYVRA claim, Plaintiffs’ opposition brief argued that the NYVRA
was constitutional and “closely resembles” the FVRA although, according to Plaintiffs, the text of
the NYRA did not have to “follow [the Gingles] preconditions in every exact detail to be
constitutional.” (Id. at 22.) Plaintiffs also argued that their evidence was sufficient to satisfy the
Gingles preconditions even if the NYVRA had to be read as “coextensive with” Section 2 of the
FVRA. (Id. at 26.)
Defendants’ reply brief again focused on the partisan gerrymandering and the NYVRA
claims. Defendants asserted, inter alia, that Plaintiffs should not be permitted to rely, at summary
judgment, on an allegedly “new Gingles-based theory” for their FVRA claim. (Defs. Summ. J.
Reply at 11, ECF No, 1-17.) Defendants also asserted, in a passing footnote (and without any
discussion of the statutory text) that Plaintiffs’ MHRL § 34(4)(b) claim is “duplicative” of
Plaintiffs’ NYVRA claim. (Id. at 5 n.1.)
his summary judgment ruling, Justice Marx held that the “fact that NYVRA does not require all
three Gingles factors does not render the [NYVRA] unconstitutional or invalid.” (Summ. J. Order
at 22, ECF No. 1-9.) In analyzing Plaintiffs’ NYRA claim, Justice Marx declined to “consider
whether all three Gingles preconditions have been met by Plaintiffs because there is no authority
for superimposing any of the [Gingles] preconditions that are not already written into the
[NYVRA].” (Id. at 23.)
The cases then proceeded to trial, which began on December 17, 2024. During a colloquy
with Judge Marx on the first day of trial, Plaintiffs’ counsel in the NYCC Action asserted that they
“could prove a violation of the Municipal Home Rule Law by proving that the standards for racial
vote dilution that are incorporated into the Municipal Home Rule Law are met and those standards
are the standards of Section 2 of the [FVRA] as well as the New York Voting Rights Act.” (Dec.
17, 2024 Tr. 119 (emphasis added).) Defendants contend that this statement (and other similar
statements by Plaintiffs’ counsel at trial)1 along with Judge Marx’s subsequent rulings affirming
that Plaintiffs could pursue this theory at trial “inject[ed] a very significant federal issue into this
case,” (ECF No. 1 at 3), which renders the State Court Actions removable under Grable & Sons
Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). According to Defendants,
Plaintiffs are attempting to establish a violation of MHRL § 34(4)(b) by establishing an underlying
violation of Section 2 of the FVRA, which raises issues of federal law.
In moving to remand this action, Plaintiffs assert that Defendants’ Notices of Removal are
untimely and that, in any event, federal question jurisdiction does not exist here under Grable. The
Court agrees with Plaintiffs that the Notices of Removal are untimely. Accordingly, it is
1 See Dec. 17, 2024 Tr. 41–42 (“[A]s you know, [Plaintiff’s] racial vote dilution claim is based on New York’s
Municipal Home Rule Law which incorporates the standard of both the Federal Voting Rights Act and New York
Voting Rights Act.”); Dec. 20, 2024 Tr. 682 (asserting that Plaintiffs could establish a MHRL violation in “any number
of ways including ways that would be similar to the standards of proof applicable under Section 2 [of the FVRA].”).
Plaintiffs’ alternative argument that all properly joined and necessary defendants failed to consent
to removal.
However, before addressing the parties’ arguments concerning timeliness, the Court will
first set out the relevant law underlying Defendants’ position that Plaintiffs’ “federal theory” for
their MHRL § 34(4)(b) claim gives rise to federal question jurisdiction. The relevant law on this
issue provides some relevant context for the parties’ arguments concerning the timeliness of the
Notices of Removal.
B. Federal Question Jurisdiction and the Grable Exception
A defendant may remove to federal court “any civil action brought in a State court of which
the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The
removing party bears the burden of establishing the propriety of removal. Cal. Pub. Emps.’ Ret.
Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004).
The question of whether a case “arises under” federal law for purposes of 28 U.S.C. § 1331
is governed by the well-pleaded complaint rule. State by Tong, 83 F.4th at 132 (citing Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987)). Under that rule, federal question jurisdiction “exists
only when a federal question is presented on the face of the plaintiff's properly pleaded complaint”
and cannot be triggered “on the basis of a federal defense, even if the defense is anticipated in the
plaintiff's complaint, and even if both parties concede that the federal defense is the only question
truly at issue.” Id. (cleaned up; quoting Caterpillar, 482 U.S. at 393). “In other words, the ‘general
rule’ is that federal courts lack federal-question jurisdiction ‘if the complaint does not affirmatively
allege a federal claim.’” Id. (quoting Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003)).
There are “exactly three situations” in which a complaint that does not allege a federal
claim may still arise under federal law for purposes of federal subject matter jurisdiction. Id. at
(2) if the state-law claims are completely preempted by federal law; and (3) in certain cases if the
vindication of a state-law right necessarily turns on a question of federal law.” Id. (cleaned up;
quoting Fracasse v. People’s United Bank, 747 F.3d 141, 144 (2d Cir. 2014)).
Defendants insist that the Court has federal-question jurisdiction over Plaintiffs’ MHRL
cause of action based on the third exception, as articulated in Grable, 545 U.S. 312 and its progeny.
The so-called Grable exception provides that a claim arises under federal law for purposes
of the well-pleaded complaint rule when the state-law claim implicates significant federal issues.
Grable, 545 U.S. at 312. This exception applies in only a “slim category” of cases. Gunn v.
Minton, 568 U.S. 251, 258 (2013). Grable jurisdiction exists if a federal issue is: “(1) necessarily
raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance.” Fracasse, 747 F.3d at 144 (citing Gunn, 568 U.S. at 258).
Defendants attempt to invoke Grable’s narrow category of jurisdiction by arguing that
federal law is necessarily implicated because Plaintiffs assert that they can establish a violation of
MHRL § 34(4)(b) by showing that Defendants violated Section 2 of the FVRA. Plaintiffs contend
that Grable does not apply because their MHRL claim does not “necessarily raise” federal issues.2
2 For a federal issue to be “necessarily raised,” the “mere presence of a federal issue in a state cause of action” is
inadequate; the question of federal law must be “a necessary element of one of the well-pleaded state claims.” State
by Tong, 83 F.4th at 140 (cleaned up). “[I]f a ‘court could . . . resolve[ ] the case without reaching the federal issues,’
then ‘the claims do not necessarily raise a federal issue.’” Id. (quoting New York v. Shinnecock Indian Nation, 686
F.3d 133, 140–41 (2d Cir. 2012). The federal law issue must “must be essential to the entire claim, not just to one of
multiple alternative theories.” VariBlend Dual Dispensing Sys. LLC v. Crystal Int’l (Grp.) Inc., No. 18-CV-10758,
2019 WL 4805771, at *4 (S.D.N.Y. Sept. 30, 2019) (emphasis in original); see Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 810 (“[A] claim supported by alternative theories in the complaint may not form the basis for §
1338(a) jurisdiction unless patent law is essential to each of those theories.”); Arnowitz v. City of Clifton, No. 20-
CV-275, 2021 WL 2577072, at *4 (D.N.J. Mar. 10, 2021) (report and recommendation), adopted, 2021 WL 2577070
(D.N.J. Apr. 5, 2021) (“[A]s plaintiff’s state law retaliation claim is premised on two theories (military service and
complaints about harassment), only one of which potentially implicates [the federal] USERRA [statute], federal law
is not ‘necessarily raised . . . .’”).
A defendant seeking to remove a civil action from state court must file a notice of removal
“within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or proceeding is based.”
28 U.S.C. § 1446(b)(1). However, “if the case stated by the initial pleading is not removable,” the
30-day clock does not begin to run until the defendant receives “a copy of an amended pleading,
motion, order or other paper from which it may first be ascertained that the case is one which is or
has become removable.” Id. § 1446(b)(3).
Defendants assert that their Notices of Removal are timely because, according to
Defendants, they could not ascertain that these cases were removable under Grable until Justice
Marx’s December 17 and December 20 rulings “first introduced [Plaintiffs’] federal theory . . .
into this case.” (ECF No. 18 at 18.) This argument fails because Plaintiffs identified this “federal
theory” on November 12, 2024, when Plaintiffs explicitly addressed this theory in their opposition
to Defendants’ summary judgment motion.3
In opposing summary judgment, Plaintiffs stressed, on the first page of their brief, that the
MHRL’s prohibitions “on racial vote dilution and intentional racial discrimination . . . are at least
co-extensive with Section 2 of the [FVRA].” (Pls.’ Summ. J. Mem. at 1, ECF No. 1-16 (emphasis
in original).) Plaintiff’s brief also stressed that Defendants did not move for summary judgment
on the MHRL claims brought by the NYCC Plaintiffs. (Id.) It was clear, from the first page of
Plaintiffs’ opposition brief, that Plaintiffs were alleging that they could prove their vote dilution
claim under the MHRL by establishing an underlying violation of Section 2 of the FVRA.
3 Plaintiffs assert that, based on Defendants’ proffered theory of federal question jurisdiction, Defendants had ample
grounds to “ascertain” that this case was removable before November 12. Given the Court’s discussion infra, the
Court does not need to reach those arguments.
as an “other paper” under § 1446(b)(3)—more than forty days before Defendants filed their Notice
of Removal.4
Defendants insist that, as a matter of New York civil procedure, Plaintiffs’ “federal theory”
constituted a “new theory” that Plaintiffs could not raise for the first time on summary judgment.
As such, Defendants maintain that this allegedly “new theory” did not actually become part of the
case until Justice Marx explicitly stated on December 17 and December 20 that Plaintiffs could
pursue this “federal theory” at trial. Defendants maintain that, at the very least, it was not
sufficiently clear and certain that Plaintiff’s “federal theory” was part of the case on November 12.
According to Defendants, Plaintiffs’ reference to this “federal theory” in their opposition brief was
akin to a plaintiff filing—without first obtaining the requisite leave of court—an amended
complaint in state court that introduces a federal claim or issue for the first time. Defendants
reason that, in such circumstances, the 30-day removal clock would not begin until the state court
grants the plaintiff permission to file the proposed amended complaint that includes the newly
raised federal issue.
The Court is not persuaded by Defendants’ arguments. Plaintiffs’ opposition brief clearly
set out this “federal theory” for their MHRL claim vote dilution claim. This was not, as Defendants
suggest, a “new theory” for Plaintiffs’ MHRL claim that was improperly advanced at summary
judgment.
MHRL § 34(4)(b), which was enacted in 2021, before the NYVRA, contains the following
language:
Districts shall not be drawn with the intent or result of denying or abridging the
equal opportunity of racial or language minority groups to participate in the
political process or to diminish their ability to elect representatives of their choice.
4 Defendants do not dispute that this filing qualifies as “other paper” under § 1446(b)(3).
might look to whether the standards of Section 2 of the FVRA were violated. While they are not
identical, MHRL § 34(4)(b) and the Section 2 of the FVRA contain some similar language. See
52 U.S.C. § 10301.
This one potential interpretation of MHRL § 34(4)(b) proffered by Plaintiffs is not a “new
theory” and—unlike the filing of a proposed amended complaint that may require leave of court
before the proposed amended pleading becomes operative—Plaintiffs did not need explicit
permission from Justice Marx before they could pursue this argument at trial. Plaintiffs’ complaint
in the NYCC Action did not preclude them from asserting this interpretation (or other alternative
interpretations) of MHRL § 34(4)(b) at summary judgment.
The Notices of Removal—which are premised on Defendants’ claim that Plaintiffs’
“federal theory” establishes federal question jurisdiction under Grable—are untimely. Defendants’
contention that it was not sufficiently clear and certain that the interpretation of MHRL § 34(4)(b)
set out on the first page of Plaintiffs’ opposition brief was actually part of the case is meritless.
Relatedly, Defendants erroneously assert that Justice Marx’s December 6, 2024, summary
judgment ruling confirmed that there “was no federal issue in this case at summary judgment.”
(ECF No. 18 at 20.) Notably, the portion of Justice Marx’s decision Defendants cite only addressed
Plaintiff’s independent NYVRA claim, not MHRL § 34(4)(b). Nothing in Justice Marx’s ruling
indicated that Plaintiffs’ “federal theory” for their MHRL § 34(4)(b) claim was not part of the case
as of November 12, 2024.
In conclusion, Defendants needed to remove these cases within 30 days of November 12,
2024. As Defendants failed to do so, Plaintiffs’ motion to remand must be granted.
“An order remanding the case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Absent unusual
circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005).
Defendants’ arguments that the Notices of Removal were timely come close to the line of
being objectively unreasonable. However, given the complicated legal issues before Justice Marx
and the expedited nature of the proceedings in state court, the Court concludes that Defendants’
position on timeliness was not objectively unreasonable under the circumstances. Accordingly,
the Court declines to award Plaintiffs attorney’s fees.
E. Conclusion
For the reasons set out above, Plaintiff’s Motion to Remand is GRANTED. Accordingly,
the Court remands these two actions back to the Supreme Court of the State of New York, Nassau
County.
The Clerk of the Court is directed to: (1) mail certified copies of this order to the clerk of
the Supreme Court of the State of New York, Nassau County, pursuant to 42 U.S.C. § 1447(c); and
(2) to close these cases.
SO ORDERED.
Dated: December 31, 2024
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE