SIMS-FELTON v. HEGEDUS et al
Filing
42
MEMORANDUM OPINION & ORDER TO SHOW CAUSE directing Pltf to advise the Court, w/in 10 days, whether pltf has agreed to voluntarily dismiss all claims against all parties, and, if not, which claims she continues to assert against which parties, etc. Signed by Judge Noel L. Hillman on 12/26/2012. (drw)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CYNTHIA SIMS-FELTON,
Plaintiff,
v.
SYLVIA HEGEDUS,
CATHY MCGUIRE, LILLIAN
SWANSON, GLORIA J. HOFFMAN,
and SHOWBOAT ATLANTIC CITY
OPERATING COMPANY, L.L.C.,
Defendants.
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Civ. A. No. 11-4923(NLH)(AMD)
MEMORANDUM OPINION
& ORDER TO SHOW CAUSE
CYNTHIA SIMS-FELTON
200 CROWN COURT
EGG HARBOR TOWNSHIP, NJ 08234
Appearing pro se
REGINA C. HERTZIG
CLEARY & JOSEM, LLP
1650 MARKET STREET
PHILADELPHIA, PA 19103
On behalf of the individual defendants
CHRISTOPHER H. MILLS
FISHER & PHILLIPS, LLP
430 MOUNTAIN AVENUE
3RD FLOOR
MURRAY HILL, NJ 07974
On behalf of defendant Showboat Atlantic City Operating
Company, L.L.C.
HILLMAN, District Judge
WHEREAS plaintiff, Cynthia Sims-Felton, having filed a
complaint against defendants alleging that her employer, Showboat
Atlantic City Operating Company, L.L.C., operating as the
Showboat Casino Hotel (“Showboat”), discriminated and retaliated
against her, and her co-workers at Showboat: (1) defamed her by
calling her racial slurs and making derogatory gestures, (2)
falsely accused her of making a threatening remark, (3) harassed
her, (4) slandered her, and (5) gave her a poor evaluation and a
union grievance write-up based on these interactions1; and
The individual defendants having filed a motion to dismiss2
plaintiff’s claims because plaintiff’s state law claims are
inextricably intertwined with her union’s collective bargaining
agreement, and they are therefore preempted by Section 301 of the
Labor Management Relations Act (LMRA), 29 U.S.C. § 185; and
The individual defendants arguing that because plaintiff’s
state law claims are preempted by the LMRA, she is required to
first exhaust her contractually mandated grievance procedures
prior to bringing suit; and
The individual defendants further arguing that plaintiff has
not alleged that she exhausted the union’s grievance procedures
before she filed suit against them, and, thus, her claims must be
dismissed3; and
1
Showboat removed plaintiff’s case from New Jersey state
court claiming that this Court has jurisdiction over this matter
pursuant to Section 301 of the Labor Management Relations Act
(LMRA), 29 U.S.C. § 185.
2
Showboat filed an answer to plaintiff’s complaint on the
same day the individual defendants filed their motion to dismiss.
3
Defendants also argue that plaintiff’s claims, if found not
to be preempted, must be dismissed on several other bases,
including qualified privilege, statute of limitations, and
2
Plaintiff having opposed the individual defendants’ motion
to dismiss4; but
Since the time the individual defendants filed their motion,
and Showboat filed its answer to plaintiff’s complaint, the
parties having attended a status conference with the magistrate
judge; and
Following that status conference, plaintiff having sent the
Court a letter, wherein she (1) purports to withdraw her claims
against Showboat in order to pursue the administrative procedures
of the Equal Employment Opportunity Commission (EEOC), and (2)
appears to withdraw the claims that must be brought pursuant to
Section 301 of the LMRA5 (see Docket No. 39); and
failure to state a viable claim under New Jersey’s Law Against
Discrimination. As explained herein, the Court makes no
conclusive findings on the viability of plaintiff’s claims at
this time.
4
Plaintiff’s opposition does not appear to oppose the
individual defendants’ alternative bases for dismissal.
5
After the individual defendants filed their motion and
Showboat filed its answer, plaintiff filed a “Second Amended
Complaint,” in which she incorporated her prior amended complaint
by reference, and added a “Section 301 Hybrid” claim.
Procedurally, plaintiff’s filing is improper for two reasons: (1)
because a complaint is the blueprint for the case, any amended
complaint must be a complete document by itself, and it cannot
incorporate by reference her prior allegations; and (2) plaintiff
was required to seek leave of the Court or obtain her adversary’s
consent to file her second amended complaint. See Snyder v.
Pascack Valley Hospital, 303 F.3d 271, 276 (3d Cir. 2002)
(explaining that the amended complaint supercedes the original
version in providing the blueprint for the future course of a
lawsuit); Fed. R. Civ. P. 15(a)(1), (2) (providing that a party
“may amend the party's pleading once as a matter of course,”
3
The Court noting that:
(1) Before filing a complaint, a plaintiff alleging any
discriminatory employment practice must exhaust her
administrative remedies by filing a charge with the EEOC, see 42
U.S.C. § 2000e–5(e)(1), and it does not appear that plaintiff has
fulfilled that requirement; and
(2) Plaintiff’s claims against her co-workers appear to be
encompassed by her union’s collective bargaining agreement, and
thus fall under the purview of Section 301 of the LMRA; and
(3) Fed. R. Civ. P. 41(a)(1) governs the voluntary dismissal
of actions, and it allows a plaintiff to voluntarily withdraw her
complaint at any time prior to the filing of an answer or a
motion for summary judgment, or by filing a stipulation of
dismissal signed by all parties who have appeared; and
The Court finding that plaintiff may voluntarily dismiss her
claims against the individual defendants, but that she can only
dismiss her claims against Showboat by a stipulation signed by
all parties; and
The Court further finding that it is not entirely clear if
plaintiff has intended to voluntarily dismiss all claims against
all parties; and
The Court also finding that if plaintiff does not
without consent or the court's leave, but in all other cases, a
party may amend its pleading only with the opposing party’s
written consent or the court’s leave).
4
voluntarily dismiss her claims, her claims may be dismissed for
their substantive invalidity, as noted above6;
Therefore,
IT IS HEREBY on this
26th
day of December
, 2012
ORDERED that plaintiff shall, within 10 days of the date of
this Order, file a letter with the Court and on the docket
advising whether plaintiff has agreed to voluntarily dismiss all
claims against all parties, and, if not, which claims she
continues to assert against which parties; and it is further
ORDERED that if plaintiff fails to file a response within 10
days, the Court will substantively address the individual
defendants’ motion to dismiss; and it is further
ORDERED that if plaintiff does respond, defendants shall
have 10 days from the date of plaintiff’s response to reply to
plaintiff’s submission.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
6
Even though pro se complaints, “however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers,” Estelle v. Gamble, 429 U.S. 97, 107 (1976),
pro se litigants “must still plead the essential elements of
[their] claim and [are] not excused from conforming to the
standard rules of civil procedure,” McNeil v. United States, 508
U.S. 106, 113 (1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel....”).
5
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