FRATERNAL ORDER OF POLICE, LODGE 1 et al v. CITY OF CAMDEN et al

Filing 166

OPINION. Signed by Judge Noel L. Hillman on 5/9/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FRATERNAL ORDER OF POLICE,
LODGE 1, et al.,

1:10-cv-01502-NLH-AMD
OPINION

Plaintiff,
v.

CITY OF CAMDEN, et al.,
Defendants.

APPEARANCES:
GREGG L. ZEFF
LAW FIRM OF GREGG L. ZEFF
100 CENTURY PARKWAY
SUITE 305
MT. LAUREL, NJ 08054
On behalf of Plaintiffs
JOHN C. EASTLACK, JR.
GEORGIOS FARMAKIS
LILIA LONDAR
WESLEY L. FENZA
WEIR & PARTNERS LLP
215 FRIES MILL ROAD
2ND FLOOR
TURNERSVILLE, NJ 08012
On behalf of Defendants
HILLMAN, District Judge
Pending before the Court is the motion of Plaintiffs to
remand their case to New Jersey state court.

Previously, on

November 16, 2016, the United States Court of Appeals for the
Third Circuit affirmed this Court’s grant of summary judgment in

Defendants’ favor on all of Plaintiffs’ claims, except for their
claims for violations of New Jersey’s Conscientious Employee
Protection Act (“CEPA”), N.J.S.A. 34:19-1, et seq. 1

The Third

Circuit summarized Plaintiffs’ case and its decision:
This case arises from a vigorous dispute between the
Fraternal Order of Police, Lodge 1 as well as certain
police officers (“Plaintiffs”) on one side, and the City of
Camden, New Jersey and certain supervisory police personnel
(“Defendants”) on the other. Plaintiffs claim that the
City's “directed patrols” policy constitutes an illegal
quota system. Specifically, they allege that the policy
violates New Jersey's anti-quota law. They also accuse
Defendants of illegal retaliation in violation of New
Jersey's Conscientious Employee Protection Act (“CEPA”),
the First Amendment, and the Family and Medical Leave Act
(“FMLA”). The district court granted summary judgment to
Defendants on all of Plaintiffs' claims.
. . . .
[W]e will reverse the district court's order granting
summary judgment to Defendants on Plaintiffs' CEPA claims.
We will remand for proceedings consistent with this
opinion. We will affirm the district court's dismissal of
Plaintiffs' New Jersey anti-quota law, First Amendment
claims, and Officer Holland's FMLA claim.
Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d

1

The Third Circuit’s Mandate issued April 13, 2017, and the
Order on Mandate was entered on May 8, 2017. (Docket No. 164,
165.) The Court could not resolve Plaintiff’s motion until the
Mandate was docketed and the Order on Mandate was entered. See
Local Civil Rule 79.4 (“Upon the filing of a mandate or
certified copy of the judgment in lieu thereof from an appellate
court, the Clerk shall file and enter it and notify counsel for
the parties. In the event that the mandate or judgment provides
for costs or directs a disposition other than an affirmance, the
prevailing party shall submit an order implementing the mandate
or judgment.”).
2

231, 236, 247 (3d Cir. 2016).
Following the Third Circuit’s decision, Plaintiffs filed a
motion to remand their case to state court.

They argue that

because no federal claims remain, and the basis for this Court’s
jurisdiction under 28 U.S.C. § 1331 has been extinguished, the
Court should decline to continue exercising supplemental
jurisdiction over the remaining claims, which are for violations
of state law that the state court is best suited to resolve. 2
Defendants have opposed Plaintiffs’ motion, arguing that
judicial economy concerns warrant this Court’s continuing
jurisdiction over the matter.
Under 28 U.S.C. § 1367(a), “in any civil action of which
the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution.”

A district court may decline to exercise

supplemental jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State law, (2)

2

Diversity of citizenship does not exist between the parties
precluding 28 U.S.C. § 1332 as a basis for subject matter
jurisdiction.
3

the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction, (3) the
district court has dismissed all claims over which it has
original jurisdiction, or (4) in exceptional circumstances,
there are other compelling reasons for declining jurisdiction.
Id. § 1367(c).
The law on supplemental jurisdiction has been long
established.
Pendent jurisdiction, in the sense of judicial power . . .
[is a] power [that does not] need not be exercised in every
case in which it is found to exist. It has consistently
been recognized that pendent jurisdiction is a doctrine of
discretion, not of plaintiff's right. Its justification
lies in considerations of judicial economy, convenience and
fairness to litigants; if these are not present a federal
court should hesitate to exercise jurisdiction over state
claims, even though bound to apply state law to them.
Needless decisions of state law should be avoided both as a
matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of
applicable law. Certainly, if the federal claims are
dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed
as well. Similarly, if it appears that the state issues
substantially predominate, whether in terms of proof, of
the scope of the issues raised, or of the comprehensiveness
of the remedy sought, the state claims may be dismissed
without prejudice and left for resolution to state
tribunals.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726–27
(1966).
Ultimately, a “district court's decision whether to
exercise [supplemental] jurisdiction after dismissing every
4

claim over which it had original jurisdiction is purely
discretionary.”

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556

U.S. 635, 639 (2009) (citing Chicago v. International College of
Surgeons, 522 U.S. 156, 173 (1997)) (“Depending on a host of
factors, then - including the circumstances of the particular
case, the nature of the state law claims, the character of the
governing state law, and the relationship between the state and
federal claims - district courts may decline to exercise
jurisdiction over supplemental state law claims.”)).
In this case, three factors compel the Court to decline to
continue exercising supplemental jurisdiction:
1.

The only remaining claims in Plaintiffs’ complaint are

for violations of New Jersey’s whistle-blower statute, which the
New Jersey Legislature enacted to “protect and encourage
employees to report illegal or unethical workplace activities
and to discourage public and private sector employers from
engaging in such conduct.”

Abbamont v. Piscataway Township Bd.

of Educ., 650 A.2d 958, 971 (N.J. 1994).

Even though this Court

is “bound to apply state law” to Plaintiffs’ NJ CEPA claims, the
Supreme Court in Gibbs directed 50 years ago that “needless
decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring
for them a surer-footed reading of applicable law.”
5

Gibbs, 383

U.S. at 726–27.

The determination of the scope of NJ CEPA and

what conduct constitutes a violation of NJ CEPA is better suited
to be adjudicated by the New Jersey courts.

See, e.g., Collins

v. County of Gloucester, 2009 WL 2168704, at *2 (D.N.J. 2009)
(after the federal claims were dismissed, declining to continue
exercising supplemental jurisdiction over remaining state law
loss of consortium claims, and observing “a state court, who by
virtue of that judge's expertise and principles of comity is in
a better position to decide the questions of state law raised
by” the plaintiff’s claims); Kalick v. Northwest Airlines Corp.,
2009 WL 2448522, at *8 (D.N.J. 2009) (following the reasoning of
Collins v. County of Gloucester, and declining to continue
exercising supplemental jurisdiction over the plaintiff’s state
law breach of contract and fraud claims); Carluccio v. Parsons
Inspection & Maintenance Corp., 2007 WL 1231758, at *6 (D.N.J.
2007) (declining to exercise supplemental jurisdiction over
Plaintiff's NJ CEPA claim and not considering its merits); see
also Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc.,
140 F.3d 478, 487 (3d Cir. 1998) (“[T]he question of whether the
proposed funding scheme for the Westside Connector violates the
New Jersey Constitution is a complex issue of state law which is
better left to the New Jersey courts to determine.”) (citing Doe
v. Sundquist, 106 F.3d 702, 708 (6th Cir. 1997) (declining to
6

exercise supplemental jurisdiction, in part, “out of respect for
the right of a state court system to construe that state's own
constitution”)).
2.

Even though this case is in a later stage, the action

is currently “before trial.”

See Gibbs, 383 U.S. at 726

(“Certainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the
state claims should be dismissed as well.”).
3.
court.

Plaintiffs want their NJ CEPA claims heard in state
Despite prevailing on their Third Circuit appeal of the

dismissal of their NJ CEPA claims, and retaining the ability to
have those claims tried in the federal forum, Plaintiffs prefer
to have a New Jersey state court hear their case.

That

consideration, along with 28 U.S.C. § 1367(a) and Supreme Court
and Third Circuit precedent, all support that the Court should
decline to continue exercising supplemental jurisdiction over
this matter. 3

3

Plaintiffs ask that this Court remand their case to state
court. The Court cannot remand their case, however, because
Plaintiffs originally filed their complaint in federal court.
Remand is only available if a plaintiff files his case in state
court, and a defendant removes the action to this court. See 28
U.S.C. § 1441(a) (“[A]ny civil action brought in a State court
of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants,
to the district court of the United States for the district and
division embracing the place where such action is pending.”);
7

An appropriate Order will be entered.

Date:
May 9, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Id. § 1447(c) (“If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the
case shall be remanded.”).
According to 28 U.S.C. § 1367(d), “The period of limitations for
any claim asserted under subsection (a), and for any other claim
in the same action that is voluntarily dismissed at the same
time as or after the dismissal of the claim under subsection
(a), shall be tolled while the claim is pending and for a period
of 30 days after it is dismissed unless State law provides for a
longer tolling period.”
8