DIXON v. RUTGERS UNIVERSITY FACILITIES MAINTENANCE SERVICES et al

Filing 83

REPORT AND RECOMMENDATIONS re 67 MOTION to Remand filed by ALLISON DIXON Objections to R&R due by 5/9/2013. Signed by Magistrate Judge Steven C. Mannion on 4/25/2013. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
ALLISON DIXON,

Civil Action No.
2:11-CV-1409-ES-SCM

Plaintiff,
v.
[D.E. 67]
RUTGERS UNIVERSITY
FACILITIES MAINTENANCE
SERVICES, ET AL.,
Defendants.
REPORT AND RECOMMENDATION
STEVEN C. MANNION, United States Magistrate Judge.
I. INTRODUCTION
Before the Court is plaintiff Allison Dixon’s (hereinafter
“Plaintiff”

or

alternatively,

“Dixon”)

case to the Superior Court of
(Docket Entry (“D.E.”) 67).
12,

2013.

Honorable

Pursuant
Esther

to

Salas,

Motion

to

Remand

this

New Jersey, Middlesex County.

The motion was filed on February
Local

United

Civil
States

Rule

72.1(a)(2),

District

Judge,

the
has

referred the instant motion to the undersigned for report and
recommendation.
The Court reviewed the parties’ respective submissions and

1

oral argument held on April 11, 2013.1 (D.E. 67, 72, 75, and 79).
Having considered the parties’ respective submissions and the
oral arguments of all counsel, for the reasons summarized at
oral

argument

and

set

forth

herein,

it

is

respectfully

recommended that Plaintiff’s Motion to Remand be denied.
Nonetheless, in consideration of the Federal Rule of Civil
Procedure

41(a)(2)

dismissals

of

all

Federal

claims

and

all

state law claims against defendants AFSCME Local 888, Michael
Holland, and the unknown defendants, and this Court’s on-going
obligation to evaluate the propriety of exercising supplemental
jurisdiction over state law claims, it is further recommended
for

the

reasons

set

forth

below

that

this

Court

decline

supplemental jurisdiction and remand this action to the Superior
Court of New Jersey.

1

Although this Report only addresses the Motion to Remand, also
before the Court were Plaintiff’s motions to Amend her Complaint
[D.E. 52] and to extend discovery [D.E. 64]. Those motions are
addressed in the bench decision placed on the record on April
24, 2013. (D.E. 81).
The Court converted the Motion to Amend
into a Motion to Supplement pursuant to Federal Rule of Civil
Procedure 1 and granted the motion in part and denied it in
part. The Court has since also extended fact and expert
discovery and entered an Amended Scheduling Order. In addition,
the Court also granted Plaintiff’s Federal Rule of Civil
Procedure 41(a)(2) requests to dismiss all Federal claims and
all state law claims against defendants AFSCME Local 888,
Michael Holland, and the unknown defendants.
2

II.

BACKGROUND

On

January

10,

2011,

Plaintiff

filed

an

eight-count

Complaint in the Superior Court of New Jersey, Law Division
alleging that defendants are liable to her for violating, among
other

state

(“NJLAD”),

laws,
the

the

New

New

Jersey

Jersey

Law

Against

Constitution,

and

Discrimination

certain

federal

statutes such as the Civil Rights Act of 1964 and the Equal Pay
Act of 1963 (“EPA”).

(D.E. 1-3, Notice of Removal (“NOR”)-

Plaintiff’s Complaint (Exhibit A)).

On March 10, 2011, pursuant

to 28 U.S.C §§ 1441 and 1446 and with jurisdiction in the Court
predicated

on

jurisdiction),

28

U.S.C.

counsel

for

§

1331(a)

defendants

(federal
Rutgers,

question
the

State

University of New Jersey, Antonio Calcado, Helen McCloskey and
Alicia

Rodriguez

(hereinafter

collectively

referred

to

as

“Rutgers”), with consent from the other named defendants, filed
a Notice of Removal in this Court.2 (D.E. 1-2, NOR - Declarations

2

The Notice of Removal was procedurally defective in so far as
the summons and other proof of process were not appended as
required by 28 U.S.C. § 1446(a).
Therefore, this Court was
without sufficient proofs to verify whether Defendants’ Notice
of Removal was actually timely filed pursuant to § 1446(b),
which requires that the Notice of Removal be filed within 30 of
the receipt of the Complaint by service or otherwise. However,
this procedural defect has been rendered moot by Plaintiff’s
failure to file a timely Motion to Remand pursuant to § 1447(c),
which requires said Motion to be filed within 30 days of the
Notice of Removal. Also, in the opening paragraph the Notice of
Removal states, in error, that removal was predicated on 28
3

of

Consent

(Exhibit

B)).

Subsequently,

all

named

Defendants

filed Answers to the Complaint. (D.E. 7, 8, 9).
By way of

the

Pre-trial Scheduling Order dated July 7,

2011, the deadline for filing motions to amend pleadings and/or
to add new parties was set for September 16, 2011. [D.E. 21].
On January 26, 2012, Plaintiff was permitted to file an out-oftime Motion for Leave to Amend her Complaint to include claims
and
This

allegations
was

supplement
Process

pertaining

to

the

first

Plaintiff’s

her

Complaint

rights,

Equal

of

with

her

December

claims

Protection

2011

numerous
for

(state

termination.
attempts

violations
and

to

of

Due

federal)

and

wrongful, retaliatory termination.(D.E. 25, Plaintiff’s Motion
for Leave to Amend/Correct Second Amended Complaint).3
By way of a Letter Order dated March 16, 2012, this Court
denied Plaintiff’s first Motion to Amend her Complaint without
prejudice, permitting Plaintiff to file a new motion to amend
the Complaint within seven (7) days. (D.E. 32, Judge Waldor’s

U.S.C. § 1332 (diversity jurisdiction).
corrected in paragraph number and others
jurisdiction was predicated on 28 U.S.C.
question).
3

This error was
that state that
1331(a) (federal

It is not clear to the Court why Plaintiff styled her Motion as
a Motion to Amend/Correct a Second Amended Complaint as there is
no record of a First Amended Complaint or a Second Amended
Complaint in this action. Presumably, this was a misnomer by
Plaintiff because the operative Complaint, attached as Exhibit A
4

March 2012 Letter Order).

On April 1, 2012, Plaintiff filed

another Motion to Amend her Complaint (with a revised Proposed
Amended
Amend).

Complaint).

(D.E.

37,

Plaintiff’s

Second

Motion

to

Then, on May 14, 2012, Plaintiff submitted an out-of-

time Reply to Defendants’ Opposition to Plaintiff’s Motion to
Amend, and in

said Reply, Plaintiff expressed her desire to

withdraw the revised Amended Complaint submitted on April 1,
2012 and requested leave to file another Motion to Amend with a
redrafted Amended Complaint containing, for the first time, a §
1985(3) claim for civil conspiracy against defendants Rodriguez,
McCloskey and a then unnamed non-party alleged co-conspirator.4
(D.E. No. 39, Plaintiff’s May 14, 2012 Reply (“Pl. Reply”)).
By way of Judge Waldor’s Letter Order dated June 18, 2012,
this

Court

ordered

that

Plaintiff’s

terminated

because

Plaintiff’s

procedural

defects.

(D.E.

No.

Motion
48,

Motion

to

contained

Judge

Waldor’s

Amend

be

significant
June

2012

Letter Order).

In her June Letter Order, Judge Waldor detailed

the

history”

“tortured

of

this

case

in

general,

and

in

particular, Plaintiff’s previous failed efforts to properly move
to amend her Complaint, opining in relevant part:

to Defendants’ Notice of Removal, is captioned simply
‘Complaint’.
4
Presumably, this unnamed alleged co-conspirator is Carol
Trexler, the party Plaintiff seeks to join via the instant
Motion to Amend the Complaint and Add and Additional Party.
5

as

This case has a tortured procedural history. Plaintiff
has been attempting to amend her first amended
complaint since late January 2012 to add new facts and
claims resulting from Plaintiff’s termination in
December 2011. Plaintiff’s initial formal motion to
file a first amended complaint was denied without
prejudice on March 16, 2012 after Plaintiff’s attempts
to
follow
the
procedural
guidelines
proved
unsuccessful. (Docket Entry No. 32). Specifically,
Plaintiff
continued
to
submit
proposed
amended
complaints with changes that were not put forward or
discussed in Plaintiff’s moving papers for the Court’s
review.
In keeping with Fed.R.Civ.P. 15(a)(2)’s
liberal pleading standard, however, the Court gave
Plaintiff an additional opportunity to file a formal
motion to amend the complaint. (Id.). See Dole v. Arco
Chem. Co., 921 F.2d 484 (3d Cir. 1990).2 This leads us
to our present conundrum. As noted above, Plaintiff
asks this Court to give Plaintiff and her counsel yet
another chance to clarify and correct the complaint.
Out of an abundance of caution and in light of the
fact that this Circuit prefers that “a particular
claim . . . .be decided on the merits rather than on
technicalities,” the Court grants Plaintiff leave to
file her third formal motion to file a first amended
complaint. Id. at 487. This will be Plaintiff’s last
opportunity to file a proper motion to amend and must
comply with all federal and local rules. [sic]
Id.
On July 13, 2012, Plaintiff filed her third formal Motion
to Amend her Complaint. (D.E. No. 52, Plaintiff Third Motion to
Amend).

As an exhibit to her Motion to Amend Plaintiff attached

a Proposed First Amended Complaint in which she added various
allegations of retaliatory termination and federal Due Process
claims- in addition to the various state and federal claims that
were

contained

in

her

original

Complaint.

See

(D.E.

52-3).

Defendants filed a timely opposition to Plaintiff’s Motion to
6

Dismiss and Plaintiff replied in a timely fashion. (D.E. 53,
54).
By Order of the Court dated November 20, 2012, all claims
against

defendants

dismissed
Anthony

with

John

Lemongelli

prejudice

Armenti

were

and

all

dismissed

and

Gerard

claims

without

O’Donnell

against

were

defendant

prejudice.

[D.E.

60,

Order of Dismissal].
On January 10, 2013, Plaintiff filed a Motion to Extend
Discovery,

the

substance

of

Plaintiff’s expert reports-

which

concerned

the

filing

of

specifically her medical reports.

(D.E. 64, Plaintiff’s Motion to Extend Discovery).
Plaintiff filed the instant Motion on February 12, 2013.
(D.E. 67, Plaintiff’s Motion to Remand).
an exhibit to

her motion a Proposed

Plaintiff submitted as
First

Amended Complaint

which, if allowed, would abjure all of her federal claims. See
(D.E.

67-2).

In

the

instant

motion,

Plaintiff

argues

that

because she abjured all of her federal claims, this Court no
longer has federal question subject matter jurisdiction over the
instant action. (D.E. 52-1, Plaintiff’s Moving Brief (“Pl. Br.”
at

3).

Defendant

filed

a

timely

Opposition

(D.E.

72)

and

Plaintiff replied (D.E. 75).5

5

Defendants AFSCME Local 888 and Michael Holland filed a
separate Opposition Brief. (D.E. 74).
However, because these
7

III.

SUMMARY OF PARTIES’ POSITIONS
A. Plaintiff’s Moving Brief

In her Motion to Remand, Plaintiff posits that the instant
action must be remanded because this Court no longer has subject
matter jurisdiction over this action due to the fact that her
Proposed

Amended

Complaint,

as

submitted

with

the

instant

Motion, no longer contains any federal questions. (D.E. 67-2,
Plaintiff’s Moving Brief (“Pl. Br.”) at 3, 4).
argues

in

her
of

submission

Motion
an

to

Remand,

untimely

presumably

proposed

amended

Plaintiff also
to

justify

complaint

the
that

abjures all federal claims, that she should be granted leave to
amend

her

argues

Complaint.

that

because

Id.
New

at

4.

Jersey

Additionally,
law

Plaintiff

predominates

and

also

because

there are novel issues of state law (with respect to her newly
styled

Proposed

First

Amended

Complaint)

this

Court

should

decline to continue to exercise supplemental jurisdiction over
the

instant

action.

In

making

this

argument

Plaintiff

acknowledges that the Court has discretion pursuant to 28 U.S.C.
§

1367(c),

to

decide

whether

the

continued

exercise

of

supplemental jurisdiction over state claims is proper. Id. at 45.

defendants were dismissed pursuant to
their arguments are not considered here.
8

Fed.R.Civ.P.

41(a)(2),

B. Defendants’ Opposition Brief
In their Opposition Brief, defendants allege that Plaintiff
moved to remand as an attempt to evade this Court’s discovery
Orders. (D.E. 72, Defendants’ Opposition Brief (“Df. Opp. Br.”)
at 3, 4).

Defendants further argue that Plaintiff’s attempt to

seek remand is procedurally deficient in so far as her Motion to
Remand is based on a Proposed First Amended Complaint for which
she did not follow appropriate procedure to file and did not
receive

leave

from

the

Court

to

file.6

Id.

Additionally,

defendants argue that they will be prejudiced if the case is
remanded, as they have relied on this Courts various rulings in
preparing their defenses. Id. at 4. Finally, defendants assert
that Plaintiff’s Motion to Remand is an attempt to engage in
improper forum manipulation. Id. at 8-10.

C. Plaintiff’s Reply
In her reply, Plaintiff argues that remand is mandatory
pursuant

to

28

U.S.C.

1447(c)

(again,

based

on

Plaintiff’s

Proposed First Amended Complaint). (D.E. 75, Plaintiff’s Reply

6

Regarding Plaintiff’s motion to amend as contained in her
Motion to Remand, Defendants argue, in addition to it being
procedurally defective, that Plaintiff’s motion to amend should
fail due to undue delay. (D.E. 72 at 4). This objection was
addressed by the undersigned at oral argument and is reflected
in the resultant Order of the Court that granted Plaintiff’s
actual Motion to Amend/Supplement in part and denied it in part.
9

Brief (“Reply Br.”) at 7). Plaintiff further argues, without
reference to any legal authority or to any distinguishing facts,
against

a

strict

interpretation

of

the

case

law

that

has

established that a plaintiff’s amendments to the complaint does
not deprive the district court of subject matter jurisdiction.
Id. at 8.7

IV.

ANALYSIS

As an initial point, the Court notes that a decision to
remand is dispositive.

In Re U.S. Healthcare, 159 F.3d 142, 146

(3d Cir. 1998) (“[A]n order of remand is no less dispositive
than a dismissal order of a federal action for lack of subject
matter jurisdiction where a parallel proceeding is pending in
the

state

court.”)

Accordingly,

the

undersigned

makes

the

7

The only case Plaintiff cites actually stands for the opposite
proposition for which Plaintiff appears to be arguing. See Allen
v. Rite Aid, Inc., 1991 WL 148272 (Civ. A. No. 91–3835)(Here, the
Court disagreed with the plaintiff’s assertion that the
dismissal of the only federal claim required remand of the case,
opining: ”in these circumstances, this court has discretion to
retain jurisdiction over the removed action, remand the matter
to state court, or in the alternative, dismiss the complaint.”
Id. at *2.

10

following

report

and

recommendation

to

the

assigned

United

States District Judge, the Honorable Esther Salas.

A. Untimeliness of Plaintiff’s Motion to Remand
The procedure for remand is governed by Title 28, Section
1447(c) of the U.S. Code, which states, in relevant part that
“[a] motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within 30
days after the filing of the notice of removal under section
1446(a).” 28 U.S.C. § 1447(c).

Therefore, only a Motion to

Remand on the basis of lack of subject matter jurisdiction may
be

made

after

the

statutorily

established

30-day

period

immediately following the filing of the Notice of Removal. Farina
v. Nokia Inc., 625 F.3d 97, 114 (2010)( a remand motion made on
the

basis

of

“any

defect

other

than

lack

of

subject

matter

jurisdiction” must be filed within thirty days of the notice of
removal. The failure to timely move for remand results in a
waiver of the objection.
v. Schacht,

118

Wisconsin Dept. of Corrections, et al.

S.Ct. 2047,

2054, 524 U.S.

381, 141 L.Ed.2d

(1998)(For cases in which removal is defective because of some
reason other than lack of subject matter jurisdiction, such as
untimeliness, there must be motion to remand filed no later than
30 days after filing of removal notice.).
11

Plaintiff, apparently under the belief that by abjuring all
her federal claims would divest this Court of subject matter
jurisdiction over the instant case, moved to remand this case
some twenty-two (22) months after this case was removed.

While

Plaintiff’s Motion to Remand purports to challenge this Court’s
subject

matter

established

in

jurisdiction
this

over

jurisdiction

this
that

case,

a

the

is

court

district

law

can

maintain subject matter jurisdiction over state claims after the
federal

claim(s)

that

provided

the

basis

for

original

jurisdiction and upon which removal was predicated have been
voluntarily dismissed. Westmoreland Hosp. Ass'n v. Blue Cross,
etc., 605 F.2d 119, 123 (1979)(A subsequent amendment to the
complaint after removal designed to eliminate the federal claim
will not defeat federal jurisdiction)citing Hazel Bishop, Inc.
v. Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963).

The Supreme

Court has made it clear that a district court’s decision to
decline to exercise supplemental jurisdiction over pendant state
law claims is purely discretionary, opining:
With
respect
to
supplemental
jurisdiction
in
particular,
a
federal
court
has
subject-matter
jurisdiction over specified state-law claims, which it
may (or may not) choose to exercise (citation
omitted). A district court's decision whether to
exercise that jurisdiction after dismissing every
claim over which it had original jurisdiction is
purely
discretionary.(citations
omitted)...As
a
result,
the [district] court's exercise of its
discretion under § 1367(c) is not a jurisdictional
12

matter...
Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635,
639-40, 129 S.Ct. 1862 (2009)).
Here, Plaintiff has conflated this Court’s discretion to
decline to hear remaining state law claims with this Court being
required

to

dismissed.
fide

remand

a

case

after

federal

claims

have

been

As such, because Plaintiff fails to raise a bona

subject

matter

jurisdiction

question,

her

motion

is

untimely and should therefore be denied.

B. Discretionary Exercise of Supplemental Jurisdiction
At
dismiss

oral
all

argument
of

her

Plaintiff

Federal

claims

against the union defendants.
continuously

assess

jurisdiction

over

the
state

and

her

that

this

Court

state

law

claims

Consistent with its obligation to

propriety
law

requested

of

claims,

exercising
this

supplemental

Court

must

now

determine whether Plaintiff’s case should continue to proceed in
district court.

The Supplemental Jurisdiction statute states in

relevant part that:
The
district
courts
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,
13

(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.
28 U.S.C. § 1367(c).

Further, the Supreme Court, recognizing

that a federal court’s exercise of its supplemental (pendant)
jurisdiction could conflict with the principle of comity with
respect

to

states,

federal

court’s

doctrine

of

opined

in

Mine

supplemental

judicial

Workers

(pendent)

v.

Gibbs,

that

a

is

a

jurisdiction

discretion/abstention

and

advised

that

“considerations of judicial economy, convenience and fairness to
litigants”
decide

all

underscore

state-law

claims

a

federal

that

appear

court’s
with

a

broad
federal

power

to

question

claim. Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130
(1966).
In Carnegie-Mellon University, et al. v. Maurice B. Cohill,
Jr.,

the

Supreme

Court

applied

the

Gibbs

broad

judicial

discretion standard for determining whether to hear state-law
claims in the specific context of determining whether to remand
state claims after the federal question claim had been dismissed
by the party making a the Motion to Remand.
University,
(1988).

et

al.

v.

Maurice

B.

Cohill,

Jr.,

Carnegie-Mellon
484

U.S.

In doing so, the Carnegie-Mellon Court opined that:

Under Gibbs, a federal court should consider and weigh
in each case, and at every stage of the litigation,
the values of judicial economy, convenience, fairness,
14

343

and comity in order to decide whether to exercise
jurisdiction over a case brought in that court
involving pendent state-law claims. When the balance
of these factors indicates that a case properly
belongs in state court, as when the federal-law claims
have dropped out of the lawsuit in its early stages
and only state-law claims remain,7 the federal court
should decline the exercise of jurisdiction by
dismissing the case without prejudice.
Id. at 350.
and

Thus, as articulated by the Supreme Court in Gibbs

Carnegie-Mellon,

the

district

court

has

an

obligation

throughout litigation to examine whether to continue to exercise
supplemental

jurisdiction

over

state

claims.

The

Court’s

discretion in making the determination is meant to be applied
flexibly and is designed to allow the Court to deal with cases
involving

pendent

claims

in

the

manner

that

most

sensibly

accommodates a range of concerns and values.
The

Carnegie-Mellon

Court

also

addressed

the

issue

of

whether (after applying the Gibbs framework and deciding that it
should decline to continue to exercise jurisdiction over the
case) the remaining state claims should be dismissed without
prejudiced or may they be alternatively remanded, stating:
This Court's crafting of the pendent jurisdiction
doctrine in Gibbs strongly supports the conclusion
that when a district court may relinquish jurisdiction
over a removed case involving pendent claims, the
court has discretion to remand the case to state
court. Gibbs itself does not directly address this
issue; because the plaintiff in Gibbs filed his suit
in federal court, remand was not an option in the
case, and the Court spoke only of dismissal. But Gibbs
establishes that the pendent jurisdiction doctrine is
15

designed to enable courts to handle cases involving
state-law claims in the way that will best accommodate
the values of economy, convenience, fairness, and
comity, and
Gibbs
further establishes that the
Judicial Branch is to shape and apply the doctrine in
that light. Because in some circumstances a remand of
a removed case involving pendent claims will better
accommodate these values than will dismissal of the
case, the animating principle behind the pendent
jurisdiction doctrine supports giving a district court
discretion to remand when the exercise of pendent
jurisdiction is inappropriate.
Id. at 351.
In Carnegie-Mellon, a former employee and his wife brought
action for violations of federal and state age discrimination
laws,

wrongful

infliction

of

discharge,

breach

emotional

of

contract,

distress,

intentional

defamation,

and

misrepresentation; defendants/petitioners removed the case from
state court to federal court; plaintiffs/respondents moved to
amend

their

remand

to

complaint
state

abjuring

court;

and

their

after

federal

the

claims

district

and

court

for

judge

remanded the case, defendants/petitioners appealed. Id. at 343.
In holding that the federal district court had discretion to
remand the removed case that involved pendent state law claims
because the district court’s retention of jurisdiction would be
inappropriate, the Court, recognizing that Gibbs did not involve
a question of remand, nonetheless stated that “Gibbs establishes
that the pendent jurisdiction doctrine is designed to enable

16

courts to handle cases involving state-law claims in the way
that will best accommodate the values of economy, convenience,
fairness, and comity.” Id. at 351.

The Court also addressed the

argument concerning “manipulative” forum shopping:
...If the plaintiff has attempted to manipulate the
forum, the court should take this behavior into
account in determining whether the balance of factors
to be considered under the pendent jurisdiction
doctrine support a remand in the case. The district
courts thus can guard against forum manipulation
without a blanket rule that would prohibit the remand
of all cases involving pendent state-law claims.
Id. at 357.

Thus, in Gibbs and Carnegie-Mellon, the Supreme

Court makes it very clear that the district court is permitted
to take into consideration the particular circumstances of the
case at bar in determining whether remand would be proper.
In the instance case, the facts and circumstances weigh
heavily in favor of remand.

Now that all of Plaintiff’s federal

claims and a number of defendants have been dismissed, the case
has

a

distinctively

iteration.

different

posture

from

its

earlier

First and most obviously, because Plaintiff’s claims

are proceeding exclusively under the NJLAD statute and the New
Jersey Constitution, the Superior Court of New Jersey’s interest
in adjudicating this matter is substantially greater than that
of the district court.

Thus, comity is best served by remand.

Despite the fact that that this case has
17

proceeded

for

nearly two years in federal court, discovery to not begin until
after the July 2011 initial scheduling conference, defendants
did not produce discovery until November or December 2011, and
discovery has been limited to pre-trial matters that have not
unduly prejudiced those same remaining defendants.

Also, the

discovery that has taken place thus far has not been in vain as
the

same

or

similar

discovery

would

have

occurred had the case been in state court.

almost

certainly

More pertinently,

the additional discovery to be taken will occur whether the case
remains

in

federal

court

or

is

remanded;

therefore,

remand

cannot be reasonably viewed as exposing Rutgers to significant
additional discovery costs and expenses.

Further, the Court’s

recent orders have effectively reduced Plaintiff’s claims and
streamlined the case, which translates into fewer claims for
Rutgers to defend against moving forward.
The argument against remand that may have the strongest
rhetorical appeal, that by remanding the case, the parties have
to effectively “get to the back of the line” with respect to the
Superior Court docket is not persuasive for two reasons.

First,

as a remand the case is likely to be assigned its former docket
number-

MID-L-311-11.

Second,

a

potential

alternative

to

remanding the instant action would have been separate litigation
if

this

Court

had

denied

Plaintiff’s
18

Motion

to

Amend

with

respect to her retaliatory termination allegations.
happened

it

would

have

been

denied

without

Had that
prejudice.

Therefore, Plaintiff would have been free to pursue those claims
in

Superior

Court.

As

such,

both

parties

would

have

been

exposed to the time, costs and other burdens associated with
simultaneously litigating two cases that derive from the same
nucleus

of

operative

facts

in

two

different

forums.

Consequently, remanding this case to Superior Court best serves
the interests of judicial economy, convenience and fairness to
all litigants.
Finally,
manipulation.

the

facts

do

not

support

a

finding

of

forum

The stated reasons for remand included an effort

to streamline the litigation which Plaintiff did by not only
dismissing her federal claims against all defendants, but doing
so

with

prejudice.

Likewise,

Plaintiff

also

requested

the

dismissal of all state law claims against the union defendants.
Defense counsel did not oppose either request to dismiss claims
against their respective clients.

Had this been an effort to

manipulate the Court, it is likely that Plaintiff would have
maintained her state claims.8

8

Even though the state claims were only dismissed without
prejudice, Plaintiff is no doubt aware that if the dismissed
claims were re-filed in Superior Court she would be exposed to
the remedies available to the defense under New Jersey Court
Rule 4:37-4 (costs of voluntarily dismissed action).
19

Also,
action

Plaintiff

in

the

and

her

Superior

Court

counsel
of

originally

New

Jersey.

brought
The

this

tortured

procedural history of this case in the District Court suggests a
lack of familiarity with this Court’s procedures.

Plaintiff’s

request to return to her chosen forum under these circumstances
evidences good judgment, not gamesmanship.
this

Court

is

satisfied

that

Plaintiff

For these reasons,
has

not

engaged

in

impermissible forum shopping by dismissing her federal claims.

V. CONCLUSION
For

the

reasons

articulated

herein,

the

undersigned

recommends that Plaintiff’s Motion to Remand be denied.
also

recommended

that

this

Court

exercise

its

It is

discretion,

independent of Plaintiff’s Motion to Remand, pursuant to § 1367
and controlling case law to decline further jurisdiction over
this case and remand it to the Superior Court of New Jersey for
further proceedings.

The parties have fourteen days to file and

serve objections to this Report and Recommendation pursuant to

20

28 U.S.C. § 636 and L. Civ. R. 71.1(c)(2).

4/25/2013 1:20:21 PM

Date: April 25, 2013

21