BELL v. TOWNSHIP OF QUINTON
OPINION. Signed by Judge Noel L. Hillman on 12/17/2014. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GARY L. BELL, SR.,
Civ. No. 14-1789 (NLH/KMW)
TOWNSHIP OF QUINTON,
Richard Etienne Incremona, Esquire
Helmer Comley & Kasselman
92 West Main Street
Freehold, New Jersey 07728
Counsel for Plaintiff
Allan E. Richardson, Esquire
Richardson & Galella
142 Emerson Street
Woodbury, New Jersey 08096
Counsel for Defendant
HILLMAN, District Judge:
This matter comes before the Court by way of motion [Doc.
No. 4] of Plaintiff, Gary L. Bell, Sr., seeking to remand this
matter to the Superior Court of New Jersey, Law Division, Salem
The Court has considered the parties’ submissions,
including their responses to the Order to Show Cause dated
November 13, 2014, and decides this matter pursuant to Federal
Rule of Civil Procedure 78.
For the reasons expressed below, Plaintiff’s motion is
According to the averments of the complaint, Plaintiff is a
citizen of the Township of Quinton, Salem County, New Jersey.
(Compl. ¶ 1.)
Plaintiff was previously employed by Defendant,
Township of Quinton, as a Housing Official.
(Id. ¶ 3.)
his term of employment, in the summer of 2010, Plaintiff in his
official capacity inspected a dwelling at 18 Beasley Neck Road,
Block 18 Lot 2, in the Township of Quinton, and issued an unsafe
structural notice condemning the dwelling.
(Id. ¶¶ 4, 9.)
dwelling was owned by Plaintiff’s father, Albert Bell.
Plaintiff’s father gave Plaintiff verbal permission to
arrange the demolition of the condemned dwelling.
(Id. ¶ 10.)
Thereafter, Plaintiff spoke with the local fire chief
concerning the use of the dwelling as a possible live-fire
training exercise for the volunteer firefighters of the Quinton
Volunteer Fire Company.
(Id. ¶ 11.)
Although the fire chief at
the time did not know if he could conduct such a training
exercise, he subsequently notified Plaintiff that the fire
company intended to conduct the exercise.
(Id. ¶¶ 11, 13.)
condemned structure owned by Plaintiff’s father was burned down
on December 21, 2010.
(Id. ¶ 14.)
An investigation into the fire was then conducted, and
Plaintiff was arrested on July 26, 2011 and charged with
aggravated arson and official misconduct.
(Id. ¶¶ 15, 16.)
July 27, 2011, Plaintiff was placed on administrative leave
(Id. ¶ 18.)
On May 28, 2013, all criminal charges
against Plaintiff were dismissed.
(Id. ¶ 21.)
July 2013, the Township of Quinton retained a law firm to conduct
an administrative investigation of Plaintiff.
(Id. ¶ 22.)
Plaintiff was advised by letter dated September 4, 2013 that the
Township sought his termination based on ten disciplinary charges
against him, which included allegations that he violated the
Township’s Employee Handbook, violated established safety and
fire regulations, asked the fire department to burn down a
structure for his or his family’s sole monetary benefit, and
failed to obtain the necessary permits.
(Id. ¶ 23.)
Upon receipt of a Preliminary Notice of Disciplinary Action
on September 5, 2013, Plaintiff requested an administrative
(Id. ¶ 24.)
An administrative hearing was held on
November 20, 2013, at which time Plaintiff appeared pro se.
The hearing officer sustained nine of the ten charges
against Plaintiff, and the Township Committee voted to uphold the
recommended findings and conclusions of the hearing officer.
(Id. ¶¶ 27-29.)
A Final Notice of Disciplinary Action was signed
on December 19, 2013, which terminated Plaintiff’s employment as
of the date of his suspension, July 26, 2011.
(Id. ¶ 29.)
Final Notice of Disciplinary Action advised Plaintiff of his
right to appeal the decision to the Superior Court of New Jersey.
(Id. ¶ 30.)
Plaintiff served a notice on the Township of Quinton
stating his intent to request a trial de novo in the Superior
(Id. ¶ 30.)
On or about January 20, 2014, Plaintiff filed a verified
complaint in the Superior Court of New Jersey, Law Division,
(Not. of Removal, Ex. 1.)
The complaint contains
five counts generally alleging that the Township, through the
manner in which it conducted the disciplinary hearing, violated
Plaintiff’s constitutional and statutory rights to due process.
Defendant removed the case to federal court on March 20, 2014,
alleging that the Court has federal question subject matter
jurisdiction over the claims asserted in the complaint.
Removal ¶ 5.)
Plaintiff thereafter filed the instant motion to
remand this matter back to New Jersey state court.
STANDARD FOR REMAND
A defendant may remove a civil action filed in state court
to federal court if the federal court would have had original
jurisdiction to hear the matter in the first instance.
A federal court has original jurisdiction over cases
“arising under the Constitution, laws, or treaties of the United
States[,]” and cases “where the matter in controversy exceeds the
sum or value of $75,000 . . . and is between citizens of
28 U.S.C. §§ 1331, 1332(a).
The removability of a legal matter is determined from the
plaintiff's pleadings at the time of removal.
See Am. Fire &
Cas. Co. v. Finn, 341 U.S. 6, 14, 71 S. Ct. 534, 95 L. Ed. 702
“The presence or absence of federal question
jurisdiction is governed by the well-pleaded complaint rule,
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff's
properly pleaded complaint.”
Caterpillar Inc. v. Williams, 482
U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987).
rule makes the plaintiff “the master of his complaint,” and the
plaintiff may avoid federal jurisdiction by relying exclusively
on state law.
Once the case has been removed, the court may nonetheless
remand the case to state court if the removal was procedurally
defective or if subject matter jurisdiction is lacking.
U.S.C. § 1447(c)(“If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the
case shall be remanded.”).
favor of remand.
Any doubts should be resolved in
Boyer v. Snap-on Tools, 913 F.2d 108, 111 (3d
Cir. 1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L.
Ed. 2d 1046.
On November 13, 2014, the Court issued an Order to Show
Cause with respect to Plaintiff’s motion to remand.
noted therein that Plaintiff pleads in Count Five a federal claim
for a violation of the Fourteenth Amendment of the United States
(Order to Show Cause [Doc. No. 6] ¶ 3.)
concluded that it therefore has original jurisdiction over the
action under 28 U.S.C. § 1331.
Therefore, to the extent
In so finding, the Court notes that a plaintiff may refer to
the United States Constitution to support a state law claim
without necessarily invoking federal question jurisdiction.
See, e.g., Bollea v. Clem, 937 F. Supp. 2d 1344, 1352-53 (M.D.
Fl. 2013)(“The First Amended Complaint, when read as a whole,
makes only state law claims. [Plaintiff’s] passing references
to his right to privacy do not ‘necessarily rais[e]’ provisions
of the United States Constitution.”); Warthman v. Genoa Twp. Bd.
of Trustees, 549 F.3d 1055, 1064 (6th Cir. 2008) (“A reference
to the U.S. Constitution in a complaint should be read in the
context of the entire complaint to fairly ascertain whether the
reference states a federal cause of action or, as in
[Plaintiff’s] case, simply supports an element of a state
claim.”); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 818 (4th
Cir. 2004)(“Even if Dixon's claim had relied exclusively on the
First Amendment to establish a violation of Section 16–17–560
and thus necessarily depended on a question of federal law, the
question of federal law raised by his complaint is not
substantial.”). In this case, the complaint states that the
Defendant acted “in a manner contrary to the Fourteenth
Amendment of the Constitution of the United States, and his
constitutional and statutory rights to due process.” (Compl. 15
¶ 5.) Arguably, this averment could be construed as a mere
reference to the federal Constitution, particularly given the
absence in the complaint of a claim under 42 U.S.C. § 1983.
However, rather than disclaim an effort to assert a federal
cause of action, Plaintiff concedes that the complaint alleges a
violation of the Fourteenth Amendment of the United States
Constitution. (Pl.’s Br. in Supp. of Mot. to Remand 5.) It is
thus clear that Plaintiff intended to assert a federal question,
Plaintiff seeks remand of the entire case, the motion is denied.
Plaintiff asserts a federal-law claim, and the Court may not
remand a claim over which it has original jurisdiction.
Ameritrade, Inc., 279 F.3d 590, 596 (8th Cir. 2002) (“Where a
party seeks to have remanded to state court a case that has been
removed, as in this instance, a district court has no discretion
to remand a claim that states a federal question.”); 75-80 Prop.,
LLC v. Bd. of Cnty. Comm’r of Frederick Cnty., Civ. A. No. RDB
09-2977, 2010 WL 917635, at *1 (D. Md. Mar. 10, 2010); cf.
Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 787 (3d Cir.
1995) (“[N]othing in § 1367(c) authorizes a district court to
decline to entertain a claim over which it has original
jurisdiction and, accordingly, that section clearly does not
sanction the district court's remand of this entire case,
including the civil rights claims, to the state court.”). 2
and the reference to the Fourteenth Amendment was not simply an
effort to support a state law claim.
Plaintiff argues in his moving brief and in response to
the Order to Show Cause that the federal law claim in this
case is not sufficiently substantial to support federal
question jurisdiction. As noted above, the Court has
original jurisdiction over a civil action “arising under
the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. The “arising under” language in the
statute allows for federal question jurisdiction when
significant federal issues are “embedded” in state law
claims, even though a federal claim is not expressly
asserted. Grable & Sons Metal Prods., Inc. v. Darue Eng’g
& Mfg., 545 U.S. 308, 314, 125 S. Ct. 2363, 162 L. Ed. 2d
257 (2005). In Grable, the Supreme Court held that a
The only issue remaining at this time is whether the Court
should remand the four remaining counts of the complaint, which
the Court concluded in the Order to Show Cause assert state-law
causes of action.
(Order to Show Cause ¶ 7.)
The claims in
Counts One through Four fall within the Court’s supplemental
jurisdiction under 28 U.S.C. § 1367(a) because they arise out of
the “same case or controversy,” or a common nucleus of operative
fact, as Plaintiff’s Due Process claim under the United States
See United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
As such, they
may be removed to federal court and the Court may exercise
supplemental jurisdiction over these claims.
The Court’s power to exercise supplemental jurisdiction is
rooted in “considerations of judicial economy, convenience and
fairness to litigants . . . [.]”
Gibbs, 383 U.S. at 726, 86 S.
However, under 28 U.S.C. § 1367(c), the Court may in
its discretion decline to exercise jurisdiction over pendent
federal court will have original jurisdiction over a state
law claim if the state law claim “necessarily raise[s] a
stated federal issue, actually disputed and substantial,
which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state
judicial responsibilities.” Id. at 314, 125 S. Ct. 2363.
However, this analysis is conducted when the state law
claim serves as the basis for federal question
jurisdiction. The Court does not consider the
substantiality of federal issues where, as here, a
plaintiff unequivocally asserts a federal claim under the
United States Constitution.
state-law claims if they “substantially predominate over the
28 U.S.C. § 1367(c)(2).
predominates” standard is a “limited exception to the operation
of the doctrine of pendent jurisdiction[,]” and the Court should
only utilize its authority under Section 1367(c)(2) “where there
is an important countervailing interest to be served by
relegating state claims to the state court.”
Mifflin, 45 F.3d at 789.
Borough of W.
Such interest may be served when “‘a
state claim constitutes the real body of a case, to which the
federal claim is only an appendage,’” such that “permitting
litigation of all claims in the district court can accurately be
described as allowing a federal tail to wag what is in substance
a state dog.”
Id. (quoting Gibbs, 383 U.S. at 727, 86 S. Ct.
The Third Circuit has set forth three ways in which a statelaw claim may predominate for purposes of Section 1367(c)(2).
First, there may be a substantial quantity of evidence supporting
the state claims that would not be relevant to the federal
Id. at 789.
Second, the comprehensiveness of the remedy
sought for the state claims may substantially predominate over
the remedy sought on the federal claims.
Lastly, the scope
of the issues raised by the state-law claims may substantially
predominate over the issues raised by the federal-law claims.
In this case, as Defendant concedes, the state-law claims
could be seen as the primary substance of this case.
In Response to Order to Show Cause 7.)
However, analysis of the
factors in Gibbs demonstrates that these claims do not
“substantially predominate” over the federal claim.
five causes of action are all based on the alleged deprivation of
due process under either the federal Constitution or the New
Jersey Constitution and statutes.
New Jersey courts “‘apply the
same standards developed by the United States Supreme Court under
the federal Constitution for resolving due process claims under
the New Jersey Constitution.’”
Farneski v. Cnty. of Hunterdon,
916 F. Supp. 2d 573, 585 n.15 (D.N.J. 2013) (quoting State Farm
Mut. Auto Ins. Co. v. New Jersey, 124 N.J. 32, 590 A.2d 191
Accordingly, the issues raised by the state-law claims
here are not likely to predominate over the federal Due Process
Moreover, all of the claims arise from the same factual
circumstances, and resolution of the evidence that Plaintiff
would seek to introduce in connection with his state-law claims
would also be relevant to his federal Fourteenth Amendment claim.
Additionally, the remedies sought for the federal-law claim are
the same as those sought for the state law claims.
federal and state claims are legally and factually intertwined,
the Court finds that judicial economy, fairness to the parties,
and convenience all weigh in favor of the Court’s exercise of
supplemental jurisdiction over Plaintiff’s remaining state-law
Even where state-law claims do not “substantially
predominate” in a case, the court may decline to exercise
jurisdiction over supplemental state-law claims where there are
“compelling reasons for declining jurisdiction.”
28 U.S.C. §
The Court considers here whether remand of the
state-law claims is appropriate under this “exceptional
circumstances” exception, because the state statute upon which
Plaintiff relies provides that the state court has jurisdiction
to conduct a trial de novo.
The statute specifically provides:
“The Superior Court shall have jurisdiction to review the
determination of the governing body, which court shall hear the
cause de novo on the record below and affirm, modify or set aside
N.J. Stat. Ann. § 40A:9-161.
Defendant contends that the Court may exercise jurisdiction
over the state-law claims, notwithstanding the language of N.J.
Stat. Ann. § 40A:9-161, because the statute does not provide the
Superior Court of New Jersey with exclusive original
(Def.’s Br. in Response to Order to Show Cause 5.)
The Court agrees that the New Jersey statute does not deprive
this Court of jurisdiction to hear Plaintiff’s state-law claims.
“[A] grant of exclusive jurisdiction by a state legislature
cannot divest [a federal] Court of subject matter jurisdiction.
Put simply, a state legislature cannot define the scope of
Landworks Creations, LLC v. U.S. Fidelity
& Guar. Co., No. CIV. 05–40072–FDS, 2005 WL 3728719, at *3 (D.
Mass. Nov. 15, 2005); see also Marshall v. Marshall, 547 U.S.
293, 314, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006)(holding that
despite purporting to grant exclusive jurisdiction to specialized
state probate courts over certain matters, state legislation may
not divest federal court of jurisdiction over probate-related
dispute); Davet v. City of Cleveland, 456 F.3d 549, 554 (6th Cir.
2006) (state statute did not “pose an impediment” to district
court’s exercise of supplemental jurisdiction, as provision
vested jurisdiction in Housing Division of Cleveland Municipal
Court “exclusive” of other state courts, but not exclusive of
federal court otherwise properly exercising jurisdiction over the
case); Hindes v. FDIC, 137 F.3d 148, 168 n.15 (3d Cir. 1998)
(holding that “a state statute cannot be applied so as to limit a
federal court's supplemental jurisdiction.”).
As such, the Court
does not find “exceptional circumstances” upon which the Court
should decline to exercise supplemental jurisdiction under 28
U.S.C. § 1367.
For the reasons discussed above, the Court finds that it has
original jurisdiction over this action, as Count Five expressly
asserts a claim under the Fourteenth Amendment of the United
States Constitution. 3
Additionally, the Court will exercise
supplemental jurisdiction over the state-law claims in Counts One
through Four because they share a common nucleus of operative
facts with Count Five, and exercising jurisdiction over these
claims will promote considerations of fairness, convenience and
Consequently, Plaintiff’s motion to remand
will be denied.
An Order consistent with this Opinion will be entered on
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date: December 17, 2014
At Camden, New Jersey
As the Court noted in the Order to Show Cause, to seek
relief under the United States Constitution, a plaintiff
must utilize the vehicle of a claim under 42 U.S.C. § 1983
and may not assert claims for relief under the United
States Constitution directly. Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906-07 (3d Cir. 1997) (“By itself,
Section 1983 does not create any rights, but provides a
remedy for violations of those rights created by the
Constitution or federal law.”). Although Plaintiff does
not directly cite Section 1983 in the complaint, the Court
construes the complaint as asserting a claim pursuant to
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