JONES v. VIRTUA HEALTH, INC. et al

Filing 24

OPINION. Signed by Judge Noel L. Hillman on 1/9/2017. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SELINA JONES,

Civil No. 15-5840 (NLH/JS)
Plaintiff,
OPINION

v.

VIRTUA HEALTH, INC., et al.,
Defendants.

APPEARANCES:
RACHEL S. LONDON
ZACHARY R. WALL
WALL & LONDON LLC
34 TANNER STREET
SUITE 4
HADDONFIELD, NJ 08033
On behalf of Plaintiff
DENISE MARIE MAHER
KRISTINE GRADY DEREWICZ
LITTLER MENDELSON PC
1601 CHERRY STREET
SUITE 1400
PHILADELPHIA, PA 19102
On behalf of Defendants
HILLMAN, District Judge
Plaintiff, Selina Jones, was employed by Defendant, Virtua
Health, Inc., as a registered nurse from 1998 until her
termination on December 8, 2014.

Plaintiff suffered a work

injury in April 2014, and Plaintiff claims that in November
2014, Virtua notified her that it would no longer accommodate

her physical restrictions and it ordered Plaintiff to take a 30day personal leave of absence.

Plaintiff claims that Virtua

informed her that if she did not find a new position at Virtua
within those 30 days, she would be terminated.

Plaintiff was

unable to secure a new position at Virtua by the expiration of
the 30-day time period, and as a result, she was terminated.
Following her termination date, Plaintiff claims that she
applied for two positions at Virtua for which she was qualified,
but she was not offered either position.
In a complaint she filed in New Jersey Superior Court,
Plaintiff claims that Defendants’ actions violated the New
Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et
seq. (Counts One, Two, Three), the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq. (Count Four), and New
Jersey’s common law of wrongful termination.

Defendants removed

Plaintiff’s case to this Court pursuant to 28 U.S.C. § 1331
based on Plaintiff’s FMLA claim, which serves as the sole basis
for this Court’s exercise of subject matter jurisdiction. 1
Discovery concluded on May 31, 2016, and dispositive
motions were due by June 15, 2016.

1

On June 13, 2016, Plaintiff

Diversity of citizenship does not exist between the parties
precluding 28 U.S.C. § 1332 as a basis for subject matter
jurisdiction.
2

filed a notice of voluntary dismissal of her FMLA count in
tandem with her motion to remand for lack of subject matter
jurisdiction.

(Docket No. 15).

On June 15, 2016, Defendants

filed a motion for summary judgment on all of Plaintiffs’
claims.

(Docket No. 16.)

On July 5, 2016, the Court granted

Plaintiff’s request to stay further briefing on the motion for
summary judgment pending the Court’s decision on the motion to
remand. (Docket No. 21.)
In her motion to remand, Plaintiff argues that because
subject matter jurisdiction has been extinguished as a result of
her voluntary dismissal of her FMLA claim, the Court should
decline to exercise supplemental jurisdiction over her remaining
state law claims and remand the matter to New Jersey state
court.

Virtua has opposed Plaintiff’s motion, arguing that

Plaintiff’s dismissal of her FMLA claim and the filing of her
motion to remand is gamesmanship to avoid the Court’s
consideration of Virtua’s motion for summary judgment.

Virtua

also argues that remand at this stage in the case would be
unjust and injudicious.
In response, Plaintiff points out that four of her five
substantive claims arise under New Jersey law, and counters
Virtua’s argument that Plaintiff is engaging in forum shopping
because New Jersey state court was her original choice of forum,
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with Virtua removing the matter to federal court.

Plaintiff

further explains that it was only after Virtua’s corporate
representative’s deposition on May 25, 2016, when she determined
to withdraw her FMLA claim shortly thereafter.
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)
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).
In the situation where a case has been removed from state
court to federal court because a federal claim is pleaded in a

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plaintiff’s complaint, see id. § 1441(a), 2 “[i]f at any time
before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”

Id. §

1447(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).

2

28 U.S.C. § 1441(a) provides in relevant part, “[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.”
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The law on remand is similarly well-established, and when
issues of supplemental jurisdiction arise in a case removed from
state court the analysis is even more restrictive than when the
analysis is applied to a complaint originally filed in federal
court.

“[R]emoval statutes are to be strictly construed against

removal and all doubts should be resolved in favor of remand.”
A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204,
208 (3d Cir. 2014) (quotations and citation omitted); 28 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.” (emphasis added)); see also Hedges v. Musco,
204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West
Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)) (emphasis
in original) (“This Court has recognized that, ‘where the claim
over which the district court has original jurisdiction is
dismissed before trial, the district court must decline to
decide the pendent state claims unless considerations of
judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.’”).
Ultimately, however, a “district court's decision whether
to exercise [supplemental] jurisdiction after dismissing every
claim over which it had original jurisdiction is purely
discretionary.”

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556
6

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 its
continuing exercise of supplemental jurisdiction and remand the
matter to state court.
1.

Other than the lone claim brought under the FMLA, the

remainder of Plaintiff’s entire complaint alleges violations of
New Jersey state statutory and common law.

Even though this

Court is “bound to apply state law” to Plaintiff’s state lawbased 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.”
Gibbs, 383 U.S. at 726–27.

The determination of the scope of

the NJLAD and what conduct constitutes a violation of the NJLAD
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,
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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); 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 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 than many

cases that are remanded, the action is currently “before trial,”
which is in the sphere of permissible remand.

See Gibbs, 383

U.S. at 726 (“Certainly, if the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional
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sense, the state claims should be dismissed as well.”).

That

the discovery process has concluded in this matter and a summary
judgment motion is pending suggests even less of an effect on
judicial economy, convenience, and fairness to the parties than
if the case were still in the thick of the discovery process. 3
When the parties return to state court, Virtua may simply refile
its motion for summary judgment and obtain a ruling on its
motion on state law issues in that forum.

See, e.g., Makwana v.

Medco Health Services, Inc., 2016 WL 7477755, at *4–5 (D.N.J.
2016) (declining to exercise supplemental jurisdiction over the
plaintiffs' remaining state law claims, finding that although
“remand will certainly delay decision on the remaining summary
judgment issues, the parties' central facts and substantive
arguments should remain the same.

Remand would serve the goals

of judicial economy and comity by allowing the New Jersey courts
to apply New Jersey law”); Collins v. County of Gloucester, 2009
WL 2168704, at *2 (D.N.J. 2009) (finding that “the existence of
pending motions does not constitute exceptional circumstances
justifying supplemental jurisdiction,” where the plaintiff “has

3

This is not to suggest that remand would not have been
appropriate in this case if discovery were ongoing. Whether to
continue exercising supplemental jurisdiction is a discretionary
analysis that must be performed on a case-by-case basis,
including consideration of the procedural posture of the matter
at the time the issue is raised before the Court.
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the benefit not only of the discovery that has occurred in this
Court, but the briefing as well,” and the “work done in this
Court is easily transferred to state court without duplication
of efforts, consequently expediting any state court
proceedings”).
3.

Plaintiff has not manipulated the proceedings in order

to return to state court.

This Court has no reason to question

counsel’s explanation that after the May 25, 2016 deposition of
Virtua’s corporate representative, and the review of the
transcripts that were subsequently provided, counsel reevaluated
Plaintiff’s FMLA claim and determined less than three weeks
later to withdraw that claim.

“A district court can consider

whether the plaintiff has engaged in any manipulative tactics
when it decides whether to remand a case,” including a plaintiff
who attempts to “regain a state forum simply by deleting all
federal-law claims from the complaint and requesting that the
district court remand the case,” but that conduct “hardly
justifies a categorical prohibition on the remand of cases
involving state-law claims regardless of whether the plaintiff
has attempted to manipulate the forum and regardless of the
other circumstances in the case.”

See Carnegie-Mellon

University v. Cohill, 484 U.S. 343, 357 (1988).
Looking at Virtua’s argument in a different way, Virtua’s
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pending motion for summary judgment includes argument as to why
it is entitled to judgment on Plaintiff’s FMLA claim since it
was pending at the time Virtua prepared its summary judgment
motion.

(Docket No. 16-1 at 25-30.)

If the Court had

considered the motion and resolved Plaintiff’s FMLA claim in
Virtua’s favor, rather than Plaintiff having voluntarily
dismissed that claim, the Court would have then been permitted
to sua sponte perform the supplemental jurisdiction analysis
before assessing Virtua’s motion on Plaintiff’s state law
claims.

In that procedural posture, the Court would have come

to the same conclusion that the case belongs in state court.
This same procedure has been performed by many courts in the
same situation.

See, e.g., Geronimo v. Slattery, 2014 WL

202126, at *5 (D.N.J. 2014) (in a case removed from state court
on the basis of federal question jurisdiction, granting summary
judgment in defendants’ favor on plaintiff’s federal claims, sua
sponte declining to exercise supplemental jurisdiction on
remaining state law claims, and remanding remainder of case to
state court); Wills, O'Neill & Mellk v. Rothman, 2012 WL
1854060, at *11 (D.N.J. 2012) (same); Bezerra v. DeLorenzo, 2010
WL 2667185, at *14 (D.N.J. 2010) (same); Mosca v. Cole, 384 F.
Supp. 2d 757, 760 (D.N.J. 2005), aff’d 217 F. App’x 158, 159 (3d
Cir. 2007) (same); Greenley v. P & G Mehoopany Employees Federal
11

Credit Union, 2012 WL 3137902, at *1 (M.D. Pa. 2012) (same); cf.
Schaffer v. Township of Franklin, 2010 WL 715349, at *1 (D.N.J.
2010) (in resolving defendants’ summary judgment motion on
plaintiff’s complaint originally filed in federal court,
granting judgment in defendants’ favor on the lone federal
question presented in the plaintiff’s complaint, and sua sponte
declining to continue exercising supplemental jurisdiction over
plaintiff’s state law claims, and dismissing the case).
Simply put, Plaintiff’s dismissal of her FMLA claim and
request to remand her case to state court presents few concerns
of injudiciousness, inconvenience, and unfairness.

Accordingly,

Supreme Court and Third Circuit precedent, and 28 U.S.C. §§
1367(a) and 1441(a), all support the remand of this action.
An appropriate Order will be entered.

Date:
January 9, 2017
At Camden, New Jersey

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

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