13-465-cv
Sunnen v. N.Y. State Dep’t of Health, et al.


                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
       Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th
day of November, two thousand thirteen.

PRESENT:
            JOHN M. WALKER, JR.,
            JOSÉ A. CABRANES,
            BARRINGTON D. PARKER,
                         Circuit Judges.
_____________________________________

GERARD V. SUNNEN,

                  Plaintiff-Appellant,

                               v.                                            No. 13-465-cv

NEW YORK STATE DEPARTMENT OF HEALTH,
SENATOR CHARLES E. SCHUMER, MAYOR MICHAEL
R. BLOOMBERG,

          Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                              Gerard V. Sunnen, pro se, New York, NY.

FOR DEFENDANT-APPELLEE
CHARLES SCHUMER:                                      Rebecca S. Tinio, Benjamin H. Torrance,
                                                      Assistant United States Attorneys, for Preet
                                                      Bharara, United States Attorney, United States
                                                          Attorney’s Office for the Southern District of
                                                          New York, New York, NY.

FOR DEFENDANT-APPELLEE
MICHAEL BLOOMBERG:                                        Larry A. Sonnenshein, Andrew J. Rauchberg,
                                                          Diana Lawless, for Michael A. Cardozo,
                                                          Corporation Counsel of the City of New
                                                          York, New York, NY.

FOR DEFENDANT-APPELLEE
NEW YORK STATE DEPARTMENT
OF HEALTH:                                                Valerie Figueredo, Assistant Solicitor General,
                                                          for Eric T. Schneiderman, Attorney General of
                                                          the State of New York, New York, NY.


        Appeal from the December 27, 2012 judgment and January 9, 2013 order of the United
States District Court for the Southern District of New York (Colleen McMahon, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s judgment and order is AFFIRMED IN PART and
VACATED IN PART.

        Plaintiff-Appellant Gerard Sunnen, proceeding pro se, appeals from the District Court’s
December 27, 2012 judgment dismissing his complaint and January 9, 2013 order denying
reconsideration. Defendant-Appellee New York State Department of Health (“DOH”) requests
that we vacate the dismissal of Sunnen’s state-law claims against it for the limited purpose of
permitting the District Court to enter an order remanding those claims to state court. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

        We review de novo a district court decision dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1) or 12(b)(6). See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.
1997). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper
“when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000).

         To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
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(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at
678. A claim will have “facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
While pro se complaints must contain sufficient factual allegations to meet the plausibility standard,
see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), we look for such allegations by affording the litigant
“special solicitude” and “interpreting the complaint to raise the strongest claims that it suggests,”
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and alterations omitted).

         Having conducted an independent and de novo review of the record in light of these
principals, we find that the District Court properly concluded that it lacked subject matter
jurisdiction over Sunnen’s claims against Senator Schumer and the DOH, and that Sunnen’s
allegations against Mayor Bloomberg failed to state a claim that was plausible on its face.
Accordingly, we affirm those conclusions for substantially the reasons set forth by the District Court
in its well-reasoned opinion and order dated December 21, 2012. See Sunnen v. N.Y. State Dep’t of
Health, 12 CIV. 3417 CM, 2012 WL 6645942 (S.D.N.Y. Dec. 21, 2012). To the extent Sunnen now
attempts to raise new claims on appeal, we decline to consider those issues because they were not
presented to the District Court. See Paese v. Hartford Life and Accident Ins. Co., 449 F.3d 435, 446-47
(2d Cir. 2006) (“In general we refrain from passing on issues not raised below.” (internal quotation
marks omitted)).

         Finally, although the DOH did not make a timely request before the District Court that
Sunnen’s state-law claims against it be remanded to the state courts rather than dismissed, we find
that such relief is appropriate in this instance. Sunnen’s claims against the DOH consist of, inter alia,
state-law claims against a state agency that were removed to the District Court pursuant to the
Court’s pendent removal jurisdiction. In situations where the removed federal claims have been
dismissed, we have noted that “concerns of comity and of federalism . . . encourage remanding to
the state courts cases in which state court adjudication can properly claim primacy of interest.” See
Naylor v. Case & McGrath, Inc., 585 F.2d 557, 562-63 (2d Cir. 1978); see also Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 351 (1988) (“Because in some circumstances a remand of a removed case
involving pendent claims will better accommodate the[ ] values [of economy, convenience, fairness,
and comity] than will dismissal of the case, the animating principle behind the pendent jurisdiction
doctrine supports giving a district court discretion to remand when the exercise of pendent
jurisdiction is inappropriate.”). Accordingly, we vacate the District Court’s judgment of dismissal
only as to those state-law claims against the DOH and remand for the limited purpose of permitting


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the District Court to enter an order remanding those claims to the state courts, which the District
Court has indicated it is inclined to do.

        We have considered all of Sunnen’s remaining arguments on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the December 27, 2012 judgment and
January 9, 2013 order of the District Court IN PART, VACATE the judgment and order IN
PART, and REMAND the claims against the DOH for the limited purpose of permitting those
claims to be remanded to state court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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