ROSEMARY B. MCCULLOUGH, SHANNON MCCULLOUGH, аnd CASEY MCCULLOUGH v. MAXIMUS EDUCATION, LLC, doing business as AIDVANTAGE
6:24-cv-06077-EAW
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
March 11, 2025
Plaintiffs Rosemary B. McCullough, Shannon McCullough, and Casey McCullough (“Plaintiffs“) filed suit in New York State Supreme Court, Seneca County, on or about November 1, 2023, against defendant Maximus Education, LLC, doing business as Aidvantage (“Defendant“). (Dkt. 2-1; Dkt. 2-2; Dkt. 2-3). On February 5, 2024, Defendant removed the action to federal court on the basis of federal question jurisdiction. (Dkt. 1). Specifically, in the notice of removal, Defendant contends that this Court has original jurisdiction pursuant to
“Federal courts have a duty to inquire into their subject matter jurisdiction sua sponte, even when the parties do not contest the issue.” D‘Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd., 756 F.3d 151, 161 (2d Cir. 2014). “It is well-settled that thе party asserting federal jurisdiction bears the burden of establishing jurisdiction.” Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006). “In a case removed to federal court from state court, the removal statute is to be interpreted nаrrowly, and the burden is on the removing party to show that subject matter jurisdiction exists and that removal was timely and proper.” Winter v. Novartis Pharm. Corp., 39 F. Supp. 3d 348, 350 (E.D.N.Y. 2014) (citing Lupo v. Human Affairs Int‘l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”
In its review of the pending motion to dismiss, the Court sua sponte questioned the basis for federal question jurisdiction, and therefore on February 18, 2025, it directed Defеndant to show cause why the case should not be remanded to state court for lack of jurisdiction. (Dkt. 9). On February 28, 2025, Defendant filed its response, maintaining its position that federal question jurisdiction is proper and alleging for the first time in the alternative that diversity jurisdiction is also present. (Dkt. 10).
The Court has reviewed Defendant‘s submission and concludes that Defendant has not establishеd that federal question jurisdiction exists over Plaintiffs’ claims. The complaint alleges that Defendant improperly consolidated certain student loans. (Dkt. 2-
“If [a] plaintiff brings a claim under a federal statute that does not authorize a private right of action, the statute will not support jurisdiction under
The Court is not persuaded by Defendant‘s argument that the Secretаry of Education is a necessary party who confers this Court with subject matter jurisdiction. (See Dkt. 1 at ¶ 10). The fact that Plaintiffs could or should have sued the Secretary of Education for the relief sought does not transform the claim asserted by Plaintiffs against Defendant into a federal claim, nor has Defendant demonstrated that the claims asserted against it cannot be resolved without the inclusion of the Secretary of Education. Indeed, nowhere in Defendant‘s pending motion to dismiss does it argue that the Court is in any manner impeded from resolving the claims against it by the absence of the Secretary of Education, thus undercutting its contention that the Secretary is indispensable to a resolution of this litigation. The fact that the Secretаry of Education is not a party to this litigation distinguishes this case from Dennis v. U.S. Dep‘t of Educ., No. CV DKC 19-2064, 2020 WL 6450212, at *2 (D. Md. Nov. 3, 2020), relied upon by Defendant in its response to the Order to Show Cause. (Dkt. 10 at 3). In fact, the court in Dennis recognized that its jurisdiсtion over the non-federal defendant (the loan guarantor) only existed because of the jurisdiction it could exercise over the Department of Education. Id. at *3.
Defendant also argued in response to the Order to Show Cause that the Court should exercise federal question jurisdiction because the issues in this litigation implicate significant federal issues, relying upon Grable & Sons Metal Prod., Inc. v. Darue Eng‘g & Mfg., 545 U.S. 308, 312 (2005). (Dkt. 10 at 2). The Supreme Court has recognized that the “vast bulk of suits that arise under federal law” involve instances where “federal law
“To aid courts in identifying thе ‘extremely rare exceptions’ comprising this group, the Supreme Court has fastened a four-part test.” Mihok v. Medtronic, Inc., 119 F. Supp. 3d 22, 27 (D. Conn. 2015) (quoting Gunn, 568 U.S. at 257). “[F]ederal jurisdiction over a state law claim will lie if a federal issue is: (1) nеcessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 258. “All four requirements must be satisfied in order for a federal court to have jurisdiction.” Varga v. McGraw Hill Fin., Inc., 36 F. Supp. 3d 377, 381 (S.D.N.Y. 2014) (citing Gunn, 568 U.S. at 258).
Defendant has not even attempted to satisfy these requirements in its response to the Order to Show Cause—in faсt, it simply ignored the requirements. And it is apparent that the requirements are not met here. For instance, with respect to the third requirement, “it is not enough that the federal issue be significant tо the particular parties in the immediate
Thus, it is apparent that Defendant has failed to meet its burden to establish that the Court has federal question jurisdiction—the basis identified for removal. Implicitly acknowledging its problems with federal question jurisdiction, Defendant attempted to change tactics in its response to the Order tо Show Cause, claiming for the first time that the Court also has diversity jurisdiction. (Dkt. 10 at 4-5). But it is too late for Defendant to attempt to amend its notice of removal to assert a new ground for jurisdictiоn. Westchester Cnty. v. Mylan Pharms., Inc., 737 F. Supp. 3d 214, 230 n.12 (S.D.N.Y. 2024) (“While a defendant may . . . amend its notice of removal after thirty days if the amendment is merely technical, it may not amend a notice of removal after thirty days to state a new grоund for removal, let alone raise new grounds for removal for the first time in an opposition brief to a motion to remand.” (internal quotations and citations omitted)), appeаl docketed, No. 24-1756 (2d Cir. July 1, 2024). In Lupo, 28 F.3d at 274, a notice of removal asserting federal question jurisdiction as grounds for removal was deemed invalid, and the Second Circuit concluded that “[i]t would be contrаry to any concept of sensible judicial administration to permit HAI to amend its notice of removal at this juncture (well beyond thirty days after HAI first received Lupo‘s complaint)” to pursue diversity jurisdiction as a basis for removal. Id.; see also Baiul v. NBCUniversal Media, LLC, No. 15-CV-2816 (KBF), 2015 WL 14079227, at *5 (S.D.N.Y. Sept. 16, 2015) (“The Second Amended
Because Defendant has not met its burden of establishing that removal is proper, the Court lacks subject matter jurisdiction over this case and remands the matter to New York State Supreme Court, Seneca County, for consideration of the claims. The Clerk of Court is instructed to mail a certified copy of this Decision and Order, with a clear reference to Supreme Court, Seneca County, Index No. 20230345, to the clerk of the state court, and close the case.
Dated: March 11, 2025
Rochester, New York
ELIZABETH A WOLFORD
Chief Judge
United States District Court