INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS et al v. CITY OF ATLANTIC CITY NEW JERSEY et al

Filing 9

OPINION FILED. Signed by Judge Renee Marie Bumb on 2/10/17. (js)

[Docket No. 5]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, et al.,
Plaintiffs,

Civil No. 17-725 (RMB/JS)
OPINION

v.
CITY OF ATLANTIC CITY NEW
JERSEY, et al.,
Defendants.

APPEARANCES:
Michael A. Bukosky, Esq.
Loccke & Correia, PA
24 Salem Street
Hackensack, NJ 07601
Megan K. Mechak, Esq.
Diana Jane Nobile, Esq.
Woodley & McGillivary
1101 Vermont Avenue NW, Suite 1000
Washington, DC 20005
Attorneys for Plaintiffs International Association of Fire
Fighters, AFL-CIO Local 198, and William DiLorenzo,
on behalf of himself and all others similarly situated
Ronald Lawrence Israel, Esq.
Chiesa Shahinian & Giantomasi PC
The Office at Crystal Lake
One Boland Drive
West Orange, NJ 07052
Attorney for Defendants City of Atlantic City, New Jersey,
Charles Richman in his official capacity as Commissioner of
the New Jersey Department of Community Services, Timothy
Cunningham in his official capacity as Director of the New
Jersey Department of Community Services, Division of Local
Government Services, and Jeffrey Chiesa in his official
capacity as Designee of the Director of the New Jersey

1

Department of Community Services, Division of Local
Government Services
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Emergency
Motion to Remand and for Attorneys’ Fees and Costs by Plaintiffs
International Association of Fire Fighters, AFL-CIO Local 198,
and William DiLorenzo, on behalf of himself and all others
similarly situated (collectively, the “Plaintiffs”) [Docket
No. 5].

The Court has reviewed the parties’ submissions and,

for the reasons set forth herein, the Plaintiffs’ motion will be
granted, insofar as it seeks remand to state court, and denied,
insofar as it seeks attorneys’ fees and costs.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On January 31, 2017, Plaintiffs filed a verified complaint

in the Superior Court of New Jersey against the City of Atlantic
City, New Jersey, Charles Richman in his official capacity as
Commissioner of the New Jersey Department of Community Services,
Timothy Cunningham in his official capacity as Director of the
New Jersey Department of Community Services, Division of Local
Government Services, and Jeffrey Chiesa in his official capacity
as Designee of the Director of the New Jersey Department of
Community Services, Division of Local Government Services
(collectively, the “Defendants”).

In their verified complaint,

Plaintiffs alleged several claims under both the United States

2

and New Jersey Constitutions.

The Defendants removed the case

to this Court pursuant to 28 U.S.C. §§ 1331 and 1441(a).
Plaintiffs thereafter voluntarily dismissed that action.
Civ. A. No. 17-665 (RMB/JS) [Docket Nos. 1, 3].
The next day, on February 1, 2017, after the voluntary
dismissal, Plaintiffs filed the instant action in the Superior
Court of New Jersey.

In their refiled verified complaint,

Plaintiffs exclusively allege violations of the New Jersey
Constitution and other New Jersey state laws.

Unlike the

initial verified complaint, this verified complaint does not
include any federal causes of action and, in fact, explicitly
states that “[t]his action does not assert any federal claims,
constitutional or otherwise.”

Compl. ¶ 4 [Docket No. 1-2].

In

the verified complaint and accompanying Order to Show Cause,
Plaintiffs seek to restrain and enjoin Defendants from
implementing certain changes to the terms and conditions of
employment of the firefighters employed by the City of Atlantic
City, pursuant to the New Jersey Municipal Stabilization and
Recovery Act, N.J.S.A. § 52:27BBBB-1, et seq., which Plaintiffs
allege violate their constitutional rights under the New Jersey
Constitution.
On February 2, 2017, the Honorable Julio Mendez of the
Superior Court of New Jersey issued an Order to Show Cause with
Temporary Restraints and set the matter down for a preliminary

3

injunction hearing on February 13, 2017.
Defs. Opp. Ex. G [Docket No. 7-12].

Order to Show Cause,

That same day, Defendants

removed the action to federal court, purportedly on the basis of
federal question jurisdiction.
[Docket No. 1].

Notice of Removal ¶¶ 20-27

Plaintiffs now move for remand to the New

Jersey Superior Court and an award of attorneys’ fees and costs.
II.

LEGAL ANALYSIS
A. Remand to the Superior Court of New Jersey
Pursuant to 28 U.S.C. § 1441(a), “any 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.”

“The district courts shall have

original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.

Therefore, an action filed in state court

that arises under the United States Constitution or other
federal laws may be removed to federal court.
A district court, however, must remand an action to state
court “[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction.”
28 U.S.C. § 1447(c).

Defendants, as the party asserting federal

jurisdiction in this removal action, “bear[] the burden of

4

showing, at all stages of the litigation, that the case is
properly before the federal court.”
507 F.3d 188, 193 (3d Cir. 2007).

Frederico v. Home Depot,

“Removal statutes are to be

strictly construed, with all doubts to be resolved in favor of
remand.”

Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009)

(citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d
Cir. 1992)).
The United States Supreme Court has made clear that “[o]nly
state-court actions that originally could have been filed in
federal court may be removed to federal court by the defendant.
Absent diversity of citizenship, federal-question jurisdiction
is required.”
(1987).

Caterpillar Inc. v. Williams, 482 U.S. 386, 392,

Here, Defendants have removed this action to federal

court solely on the basis of federal question jurisdiction.
Notice of Removal ¶¶ 20-27 [Docket No. 1].
“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, 482 U.S. at 392 (citing Gully v. First

Nat. Bank, 299 U.S. 109, 112-13 (1936)).

Accordingly, it is

well-established that “[t]he rule makes the plaintiff the master
of the claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law.”

5

Id. (emphasis added); accord

Briones v. Bon Secours Health Sys., 69 F. App’x 530, 534
(3d Cir. 2003); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217,
228 (3d Cir. 1995).

In other words, “[j]urisdiction may not be

sustained on a theory that the plaintiff has not advanced.”
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 809 n. 6
(1986).

Federal question jurisdiction does not exist merely

because the facts alleged by the plaintiff in support of a state
law claim may also support a federal claim.

See Gateway 2000,

Inc. v. Cyrix Corp., 942 F. Supp. 985, 990 (D.N.J. 1996) (“A
plaintiff asserting facts that may invoke either Federal or
state jurisdiction may choose to limit the claim to one based
solely upon state law and proceed in state court.”) (citing
Oklahoma Tax Comm’n v. Graham, 489 U.S. 838, 840-41 (1989);
United Jersey Banks v. Parell, 783 F.2d 360, 368 (3d Cir.
1986)).
What’s more, the United States Supreme Court has held that:
the presence of a federal question . . . in a
defensive argument does not overcome the paramount
policies embodied in the well-pleaded complaint rule-that the plaintiff is the master of the complaint,
that a federal question must appear on the face of the
complaint, and that the plaintiff may, by eschewing
claims based on federal law, choose to have the cause
heard in state court. . . . [A] defendant cannot,
merely by injecting a federal question into an action
that asserts what is plainly a state-law claim,
transform the action into one arising under federal
law, thereby selecting the forum in which the claim
shall be litigated. If a defendant could do so, the
plaintiff would be master of nothing.

6

Caterpillar, 482 U.S. at 398-99 (emphasis added).

As a result,

“[t]he mere presence of a federal issue in a state cause of
action does not automatically confer federal question
jurisdiction.”

Smith v. Indus. Valley Title Ins. Co., 957 F.2d

90, 93 (3d Cir. 1992) (quoting Merrell Dow, 478 U.S. at 813).
Similarly, a defendant “cannot simply cite to a federal
regulation that does not give rise to a private cause of action
in order to satisfy federal subject matter jurisdiction.”
Kalick v. Nw. Airlines Corp., 372 F. App’x 317, 320–21 (3d Cir.
2010) (citing Empire Healthchoice Assur., Inc. v. McVeigh, 547
U.S. 677, 701 (2006)).
For the following reasons, the Court holds that it does not
have subject matter jurisdiction over this action and that
remand is required.

This Court does not have federal question

jurisdiction over Plaintiffs’ claims under the New Jersey
Constitution simply because Plaintiffs could have also asserted
claims under the analogous provisions of the United States
Constitution.

Such a rule would render the New Jersey

Constitution superfluous.

Moreover, every state action alleging

state law claims that have an analogous federal law would then
be removable to federal court.

Such an outcome is contrary to

well-established precedent, Congressional intent, and principles

7

of federalism.1

See, e.g., Boone v. Local Union 475

Pipefitters/Steamfitters, 2016 WL 7325472, at *2–3 (D.N.J. Dec.
16, 2016) (“Indeed, if the mere possibility that this Court
might need to refer to the terms of a CBA were to give rise to
federal jurisdiction over the plaintiff’s NJLAD claims, then
‘all discrimination actions brought by unionized employees would
be preempted because the starting point for every case would
have to be the [CBA].’”) (internal citations omitted); Brown v.
Parsons Inspection, 2012 WL 4955252, at *3 (D.N.J. Oct. 16,
2012) (“Defendant might attempt to cast Plaintiff’s claim for
discrimination as a claim arising under federal antidiscrimination law rather than state anti-discrimination law.
But Plaintiff is the ‘master of the complaint,’ and he has given
no indication that he wishes to pursue a federal discrimination
claim.”); Snyder v. Dietz & Watson, Inc., 837 F. Supp. 2d 428,
447 (D.N.J. 2011) (“In this case, although Plaintiff could have
alleged that a provision in the CBA allowing wage deductions for
shortage violated New Jersey law, he did not do so.

1

As the

Defendants do not argue that Plaintiffs’ claims fall under
the “complete preemption” exception to the well-pleaded
complaint rule, likely for this very reason. Under the complete
preemption exception, federal question jurisdiction exists where
“the pre-emptive force of a statute is so ‘extraordinary’ that
it ‘converts an ordinary state common-law complaint into one
stating a federal claim for purposes of the well-pleaded
complaint rule.’” Caterpillar, 482 U.S. at 393 (quoting Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)).
8

master of the complaint, Plaintiff may bring a state law claim
even though he could have brought a similar suit under the
CBA.”).
Defendants’ attempts to inject federal questions into
Plaintiffs’ claims are non-meritorious.2

Plaintiffs have made

clear that they seek to litigate this action before the New
Jersey Superior Court, not in federal court.

To ensure that the

action remains in state court, Plaintiffs have expressly and
unequivocally disavowed any and all federal claims that they may
have otherwise been entitled to pursue.

They have chosen to

forgo any additional protections or remedies that the United
States Constitution or federal law may provide them.

That is

their prerogative as the masters of their complaint.

If,

however, Defendants were able to involuntarily drag Plaintiffs
into federal court on the basis of federal claims that
Plaintiffs have explicitly disavowed, Defendants would
commandeer the litigation, overthrowing Plaintiffs as the
masters of their own action.3

See Caterpillar, 482 U.S. at 399;

2

The Court likewise rejects Defendants’ argument that the
Plaintiffs’ claims are governed by federal law by virtue of the
SAFER grant, which funds certain firefighters’ salaries. The
fact that the federally-authorized SAFER grant funds some
portion of the firefighters’ salaries does not transform
Plaintiffs’ state law claims into federal claims. See, e.g.,
Kalick, 372 F. App’x at 320–21; Smith, 957 F.2d at 93.
3 Defendants cannot, by simply calling Plaintiffs’ New
Jersey Constitution claims United States Constitution claims,
9

Davis v. Yates, 2016 WL 3921146, at *1 (D.N.J. July 20, 2016)
(“Of course, the plaintiff is master of his complaint, and a
plaintiff may opt to sue in State court only under the State
constitution.”).
Additionally, “[i]t is axiomatic that the complaint may not
be amended by [a plaintiff’s] briefs.”

Com. of Pa. ex rel.

Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
Plaintiffs’ reliance upon case law interpreting analogous
provisions of the United States Constitution does not mean that
Plaintiffs’ claims under the New Jersey Constitution have been
amended or supplemented to include federal causes of action.
Instead, the “references to federal law merely inform
[Plaintiffs’] state law claims.”

Ruzich v. Volkswagen Grp. of

Am., Inc., 2016 WL 5858652, at *2 (D.N.J. Oct. 4, 2016).
Accordingly, as Plaintiffs have not asserted any federal
claims, the Court finds that it lacks subject matter
jurisdiction over this action.

Remand to the state court is,

therefore, necessary.
B. Attorneys’ Fees and Costs
The Court next turns to Plaintiffs’ request for attorneys’
fees and costs.

Pursuant to 28 U.S.C. § 1447(c), “[a]n order

remanding the case may require payment of just costs and any

transform the state law claims into federal claims to create
federal question jurisdiction.
10

actual expenses, including attorney fees, incurred as a result
of the removal.”

However, “[a]bsent unusual circumstances,

courts may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.

Conversely, when an objectively reasonable

basis exists, fees should be denied.”

Martin v. Franklin

Capital Corp., 546 U.S. 132, 141 (2005).
While the Court finds that removal was inappropriate in
this case and that remand to the state court is required, the
Court further finds that Defendants did not altogether lack an
objectively reasonable basis for removal.

Defendants relied

largely upon Plaintiffs’ preliminary injunction brief [Docket
No. 1-3], which cited predominantly to federal court decisions
addressing the United States Constitution, rather than state
court cases involving the New Jersey Constitution, to
demonstrate that Plaintiffs’ claims arise under federal law.
Defendants’ reliance on Plaintiffs’ brief, while ultimately
misguided for the reasons set forth above, was not unreasonable.
The removal statute itself notes that, under certain
circumstances, the basis for removal may be ascertained through
service of “an amended pleading, motion, order or other paper.”
28 U.S.C. § 1446(b)(3) (emphasis added).

Plaintiffs’ brief

(“other paper”) relied primarily on federal law.
this confusion was of Plaintiffs’ own making.

11

Hence, much of

Even though

Defendants’ removal was improper, the parties’ litigation
history, the Defendants’ prior proper removal in Civil Action
No. 17-665 (RMB/JS), and Plaintiffs’ almost exclusive reliance
upon federal court decisions interpreting the United States
Constitution in its preliminary injunction brief persuade this
Court that Defendants did not lack an objectively reasonable
basis for removal.

For this reason, the Court denies

Plaintiffs’ request for attorneys’ fees and costs.
III.

CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Remand and

for Attorneys’ Fees and Costs is granted, in part, and denied,
in part.

The above-captioned matter shall be remanded to the

Superior Court of New Jersey, Law Division, Atlantic County.
Plaintiffs’ request for attorneys’ fees and costs is denied.

An

appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: February 10, 2017

12