BRINGA et al v. ROQUE et al
Filing
56
OPINION. Signed by Judge Kevin McNulty on 2/27/15. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Alberto BRINGA, et al.,
Civ. No. 2:13-3296
(KM-MAH)
Plaintiffs,
V.
OPINION
Mayor Felix ROQUE, et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on Plaintiffs’ motion to
voluntarily dismiss Count I, the only federal-law count in the Complaint,
and remand this action to the Superior Court of New Jersey, Hudson
County (ECF No. 49). I decide the motion without oral argument
pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.
For the reasons set forth below, Plaintiffs’ motion is granted.
I.
BACKGROUND
Plaintiffs are all terminated or former employees of the Town of
West New York under the administration of Defendant Mayor Felix Roque
(collectively, “Employees”). (See Compi. ¶22, 24, ECF No. 1-1).
Defendants are the Mayor of West New York, the Town of West New York
(the “Town”) and other Town officials (collectively, “Town Defendants”).
(Id.
¶J 11—18).
The Employees allege that the Town Defendants engaged
in discriminatory and retaliatory employment practices aimed at
individuals whom Mayor Roque saw as political enemies. (Id. ¶j25—27).
On April 5, 2013, the Employees filed a Complaint in the Superior Court
of New Jersey, Hudson County, asserting causes of action for political
retaliation under 42 U.S.C. §1983, civil rights violations under the New
1
Jersey Civil Rights Act (“NJCRA”), breach of contract, and violations of
the New Jersey Conscientious Employee Protection Act (“NJ C EPA”). (Id.
¶J86—145).
On May 24, 2013, Defendants Mayor Roque, the Town, and
Defendant Commissioner Fior’Daliza Frias (“Commissioner Frias”)
removed the matter to this Court.’ (Notice of Removal, ECF No. 1). The
Notice asserted that this Court has subject matter jurisdiction over the
case pursuant to 28 U.S.C.
§
1331 because the Complaint contains a
federal law claim under 42 U.S.C. §1983. (Id.
¶f 4—5).
The Town
Defendants requested that the Court exercise supplemental jurisdiction
over the Employees’ other state law claims. (Id. ¶7).
Some seven days after removal, the Employees’ counsel sent a
letter to the Town Defendants advising them of the Employees’ intent to
voluntarily dismiss the §1983 claim, and requesting the Town
Defendants’ consent to remand the case to state court. (Pis. Ltr., May 31,
2013, ECF No. 49-5). According to the Employees’ counsel, the Town
Defendants never responded to this request. (Cert. of Louis A. Zayas,
Esq. (“Zayas Cert.”) ¶6, ECF No. 49-1).
On July 1 and 3, 2013, having obtained a brief extension of time,
the Town Defendants filed answers to the Complaint. (ECF Nos. 8, 9,
10).2 On August 16, 2013, the Employees moved to amend the Complaint
That same day, the Employees filed an Amended Complaint in Superior
Court, Hudson County. (ECF No. 49-3). It appears that, because the initial
Complaint had already been removed to federal court, the Amended Complaint
remained in state court. (Notice of Removal, ECF No. 1).
2
Defendant West New York Board of Education (“Board of Education”) is a
named party in the state court Amended Complaint. See n. 1, supra. Despite the
amended complaint’s not having been removed, the Board of Education
answered it here in federal court on July 1, 2013. (Board of Education’s Ans.,
ECF No. 8). The amended complaint, however, remains pending, if anywhere, in
state court. I treat the original, removed complaint as the operative pleading
here. See Westmorelarid Hosp. Ass’n v. Blue Cross of Western Pa., 605 F.2d 119,
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2
to add new plaintiffs and claims and to drop Count I, the §1983 count.
(ECF No. 11). On September 17, 2013, the Employees wrote to District
Judge Cavanaugh, to whom the case was then assigned, requesting a
telephone conference to discuss their request for consent to dismiss
Count I and “avoid motion practice.” (Pis. Ltr., ECF No. 16). At the time,
however, the motion to amend was already filed, and a Rule 16
conference was already scheduled. On September 24, 2013, the Town
Defendants filed a cross-motion to dismiss the Complaint. (ECF No. 18).
Having again failed to obtain defense counsel’s consent to a remand,
counsel for the Employees sought an extension of time to respond to the
cross-motion, and consented to adjourn the Rule 16 conference pending
the outcome of the motions. (ECF Nos. 23 to 27)
On April 22, 2014, the Employees filed their first motion to remand
this matter to state court. (ECF No. 38). On April 30, 2014, the case was
reassigned from District Judge Cavanaugh, who had retired, to me. In an
Order dated May 2, 2014, Magistrate Judge Hammer denied without
prejudice the Employees’ motion to amend, and administratively
terminated the Town Defendants’ cross-motion to dismiss and the
Employees’ motion to remand, pending a conference with the Court.
(Order ECF No. 41).
Following requested adjournments, that conference was held on
July 30, 2014. On July 30, 2014, Magistrate Judge Hammer granted the
Employees leave to refile their motion to remand. (See Order, July 30,
2014, ECF No. 48). That motion is now before the Court. (Pis. Mot., ECF
No. 49)
II.
DISCUSSION
The Employees move (a) to voluntarily dismiss Count I of the
123 (3d Cir. 1979) (recognizing that a plaintiff’s claims must be evaluated
according to the pleading at the time of the petition for removal).
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Complaint, which alleges a violation of 42 U.S.C. §1983, under Fed. R.
Civ. P. 41(a) (2), and (b) to remand the remaining state law claims to state
court. (Pis. Mot., ECF No. 49).
A. Voluntary Dismissal
Federal Rule of Civil Procedure 41 governs voluntary dismissals of
civil actions. The Rule provides:
the plaintiff may dismiss an action without a court order by
filing: (i) a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment;
or (ii) a stipulation of dismissal signed by all parties who
have appeared.
Fed. R. Civ. P. 41(a)(1)(A). Where, as here, the opposing party has already
filed an answer to the complaint, the Rule provides that, “an action may
be dismissed at the plaintiffs request only by court order, on terms that
the court considers proper.” Fed. R. Civ. P. 41(a)(2).
Whether to grant or deny a motion for voluntary dismissal is
“within the sound discretion of the district court.” Hayden v. Westfield
Ins. Co., No. 12-0390, 2013 WL 5781121, at *2 (W.D. Pa. Oct. 25, 2013).
The touchstone is prevention of substantial prejudice to the parties.
DuToit v. Strategic Minerals Coip., 136 F.R.D. 82, 85 (D. Del 1991).
Generally, a Rule 41 motion should be granted “unless [a} defendant will
suffer some prejudice other than the mere prospect of a second law
3
suit.” Ortiz v. Univ. of Med. & Dentistry of N.J., No. 08-2669 (JLL), 2009
U.S. Dist. LEXIS 63220, at *3 (D.N.J. July 23, 2009) (quoting In re Paoli
R.R. Yard PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990) (internal
quotations omitted)). In determining whether dismissal is appropriate, a
court must carefully “weigh the prejudice to the defendant, both in terms
The standard appears to contemplate the dismissal of an entire
Complaint, not a single count. Here, a “second law suit” would not be the
reassertion of the Section 1983 count, but the continued litigation of the
existing state law counts in state court.
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of legal prejudice and litigation expense.” Hayden, 2013 WL 5781121, at
*2 (internal quotations omitted).
That analysis requires the balancing of five factors:
(1) the excessive and duplicative expense of a
second litigation; (2) the effort and expense
incurred by the defendant in preparing for trial;
(3) the extent to which the current suit has
progressed; (4) the plaintiff’s diligence in
bringing the motion to dismiss and explanation
therefore; and (5) the pendency of a dispositive
motion by the non-moving party.
Id. Here, the Hayden factors weigh in favor of granting the Employees’
Rule 41 motion to dismiss Count I, the sole federal-law claim.
First, permitting the Employees to withdraw their federal claim will
not result in undue expense. The Town Defendants point to the cost of
removing the case, answering the Complaint, and then moving to dismiss
the Complaint. (Defs. Opp. 17). Those expenses alone, however, do not
warrant denying the Employees’ Rule 41 motion. Removal itself entails
the filing of a simple notice, and always carries the risk of a motion to
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remand. See 28 U.S.C. § 1447(c). The complaint, whether in state or
federal court, must be answered or otherwise responded to. The state law
causes of action, whether in state or federal court, will proceed in any
event. The costs incurred will not be excessive or duplicative. And
dismissal of Count I with prejudice, see infra, will minimize the
possibility of duplicative expenses in a second litigation. See Chodorow v.
Roswick, 160 F.R.D. 522, 523 (E.D. Pa. 1995) (recognizing a court’s
discretion to grant a Rule 41 dismissal with prejudice to prevent the
inequities or prejudice of a second action). All in all, the first Hayden
factor weighs in favor of dismissing the Employees’ federal claim.
The notice here is more elaborate than is customary, but still runs only
five pages. (ECF No. 1).
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Factors two, three, and five also weigh in favor of granting the
Employees’ motion. Those factors all relate to prejudice resulting from
the Town Defendants’ effort and expense preparing for trial, the progress
of the case, and the status of motion practice. See Hayden, 2013 WL
5781121, at *2. Although the Employees filed the Complaint in April of
2013, this case remains nascent. The Magistrate Judge has conducted
only one conference, and the parties have yet to exchange discovery.
Motion practice has been limited. True, the Employees moved to amend
the Complaint on August 16, 2013 (ECF No. 11); the Town Defendants
filed a cross-motion to dismiss on September 24, 2013 (ECF No. 18); and
the Employees moved to remand this action to state court on April 22,
2014 (ECF No. 38). All three motions, however, were terminated without
prejudice, pending the results of a status conference. (Order, May 5,
2014, ECF No. 41). Only after authorized to do so, on August 22, 2014,
did the Employees file the motion now before the Court. (ECF No. 49).
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There are no other pending motions for the Court to consider. As things
stand, permitting the Employees to dismiss the federal claim would not
result in substantial prejudice to the Town Defendants. Compare
Hayden, 2013 WL 5781121, at *3 (finding that prejudice existed where
plaintiffs sought to dismiss federal action after extensive motion practice,
completion of discovery and a pending motion for summary judgment).
Thus factors two, three, and five also weigh in favor of granting the
motion to dismiss the federal claim.
Factor four—the Employees’ diligence in bringing the motion to
dismiss and their explanation for dismissing the federal claim—is more
equivocal. The Employees contend that they acted quickly, requesting the
Town Defendants’ consent to voluntarily dismiss the § 1983 claim on May
The Defendants assert that their motion to dismiss is pending, but it has
been administratively terminated, and therefore is not pending in any sense
that affects the analysis here.
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31, 2013, only seven days after the action was removed to federal court.
(See Pls. Ltr., May 31, 2013, ECF No. 49-5). The Employees’ counsel
never received a response from the Town Defendants (see Zayas Cert.,
¶f 5—6).6 The Employees did not, as might have been preferable, respond
with a prompt motion to dismiss Count I and remand. That said, their
motion is not time-barred; a motion to remand based on lack of subject
matter jurisdiction is timely if made “at any time before final judgment.”
28 U.S.C.
§ 1447(c).
As I say, Plaintiffs did not exactly leap into action, but they did
again attempt to withdraw the federal claim via their motion to amend
the Complaint on August 16, 2013 (see proposed Amended Complaint,
ECF No. 11-3 (deleting the
§ 1983 claim)). And while that motion to
amend was pending, the Employees wrote a letter to the then-presiding
judge reciting a second, failed attempt to obtain consent to remand, and
requesting a conference. (ECF No. 16). At a minimum, then, the record
establishes (1) that the Town Defendants received early notice that the
Employees intended to dismiss the federal claim; and (2) that the
Employees attempted, if somewhat ineffectually, to withdraw the §1983
claim beginning as early as May 2013. Thus, the Court is satisfied that
factor four weighs somewhat, if not strongly, in favor of granting the
Employees’ motion.
The Town Defendants accuse the Employees of forum shopping.
(Defs. Opp. 8). The desire for a more favorable forum does not require
denial of a Rule 41 motion, see DuToit, 136 F.R.D. at 85—86, although it
may be considered, Hayden, 2013 WL 5781121, at *2, *4 The Employees
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It is unclear why Plaintiffs would have anticipated obtaining consent; the
Town Defendants had just removed the action to federal court, and presumably
wished to stay here. I note in passing that a plaintiff may dismiss a complaint
as of right at any time before the defendant has answered. See Fed. R. Civ. P.
41(a). If plaintiffs inadvertently let the time to answer pass, or otherwise felt
consent was required, then they should have filed a motion when consent was
not forthcoming.
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here are not seeking to escape a negative federal-court ruling or
otherwise manipulating the rules. They are guilty of forum shopping only
in the very weak sense that any plaintiff who forgoes federal claims may
choose a state court forum. At any rate, the Employees concede that
their federal claim is not viable and that state law claims predominate.
(Pis. Mot. 8—9; Pis. Reply 6—7). The state court forum is the one the
plaintiff Employees initially chose and continue to desire. And it is hard
to resist the observation that the charge of forum shopping falls equally
on both sides; the Defendants shopped the case to a federal forum based
on the presence of a § 1983 claim, over which there is concurrent state
and federal jurisdiction. See Haywood v. Drown, 556 U.S. 729, 731
(2009); Patsy v. Board of Regents of Florida, 457 U.S. 496, 506-07 (1982);
Maine v. Thiboutot, 448 U.S. 1, 3 n. 1 (1980). The factors favoring
dismissal outweigh any residual concern with forum shopping.
The Rule 41 motion to dismiss Count I is therefore GRANTED.
B. Remand vs. Retaining Jurisdiction Over State-Law
Claims
The question remains whether the Court, having dismissed the
only federal-law claim, should remand, pursuant to 28 U.S.C. § 1447(c),
or should retain jurisdiction over the remaining state law claims. I
conclude that I should remand.
There is no dispute that the Court properly exercised jurisdiction
over the removed Complaint in its original form. A district court
unquestionably possesses federal-question jurisdiction over a Section
1983 claim, whether it is asserted in a complaint filed in federal court or
one that arrives via removal. See 28 U.S.C.
§ 1331; Frederico v. Home
Depot, 507 F.3d 188, 193 (3d Cir. 2007); Dukes v. U.S. Healthcare, Inc.,
57 F.3d 350, 359 (3d Cir. 1995) (citing Abels v. State Farm Fire & Cas.
Co., 770 F.2d 26, 29 (3d Cir. 1985)); Boyer v. Snap-On Tools Corp., 913
F.2d 108, 111 (3d Cir. 1990). And a court may of course exercise
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supplemental jurisdiction over state law claims that are part of the same
case or controversy:
[Tin 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.
28 U.S.C. § 1367(a).
The question here is the proper course of action when the federal
claim that served as the sole basis for federal-question jurisdiction is
dismissed. Such a dismissal does not necessarily deprive a district court
of jurisdiction (unless the federal claim was “insubstantial on [its] face”).
Hagans v. Lavine, 415 U.S. 528, 542 n.10 (1974) (quotation omitted); see
also Felice v. Sever, 985 F.2d 1221, 1225 (3d Cir. 1993); Lunderstadt v.
Colafella, 885 F.2d 66, 69—70 (3d Cir. 1989). But the court may, within
its discretion, decline to exercise supplemental jurisdiction.
Section 1367 provides that “district courts may decline to exercise
supplemental jurisdiction over a claim.
if.
the district court has
.
.
.
.
dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§
1367(c)(3). That is, after dismissal of all federal claims, a district court
has the discretion to remand to state court “a removed case involving
pendent claims” upon a determination that retaining jurisdiction would
be inappropriate. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357
(1988); see also Ortiz, 2009 U.S. Dist. LEXIS 63220, at *3 In exercising
that discretion, courts should take into account principles of judicial
economy, convenience, fairness and comity. Cohill, 484 U.S. at 357;
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also Trans
Penn Wax Corp. v. McCandless, 50 F.3d 217, 233 (3d Cir. 1995).
As to the limits of discretion to retain state law claims lacking a
federal jurisdictional “hook,” the United States Court of Appeals for the
9
Third Circuit has given the district courts some guidance:
[W]here 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.
Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of
West Mifjlin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). Thus, where
the case has been substantially litigated, it may be a proper exercise of
discretion to retain it. See Growth Horizons, Inc. v. Delaware County, Pa.,
983 F.2d 1277, 1284—85 (3d Cir. 1993) (remanding for exercise of
discretion as to whether to retain pendent claim, noting that where the
district court already heard all evidence necessary to decide the state
contract claim, it might retain jurisdiction). Where, on the other hand,
the case is nowhere close to trial, remand may be the better course.
Freund v. Florio, 795 F. Supp. 702, 710 (D.N.J. 1992) (“[Ajt this early
stage in the litigation, dismissal of the pendent state claims in a federal
forum will result in neither a waste of judicial resources nor prejudice to
the parties.”).
I find no substantial basis for retaining jurisdiction over the state
claims here. As discussed above, this case has not progressed
substantially. The Court has not committed substantial resources to it.
Cf Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 276 (3d Cir. 2001)
(upholding the district court’s exercise of supplemental jurisdiction over
a state law claim when all federal claims had been dismissed because the
court “had become fully familiar with the factual background and
positions of the parties.”). The parties have not exchanged discovery, let
alone prepared the case for trial. What resources have been expended (for
example, in answering the Complaint) are not wholly sunk, but
transferable to the State context. State court is the more appropriate
forum to litigate the Employees’ claims. The Town Defendants stress that
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similar standards govern actions under Section 1983 and the New Jersey
Civil Rights Act. (Defs. Opp. 13). That similarity is not sufficient to
require litigation in federal court; as noted above, even as to Section
1983 itself, Congress has permitted litigation in either forum. Further,
the Complaint alleges other state law claims, such as violations of the
New Jersey CEPA and breach of contract. Comity requires due deference
to the state court’s ability to render a sure-footed interpretation of its
own law.
For the reasons expressed above, I am also unmoved by charges of
forum shopping, although it is a factor that merits some consideration.
See Trans Penn, 50 F.3d at 233. In Hunter v. Temple University School of
Medicine, for example, the court found no improper forum shopping
under circumstances similar to this case. No. 03-1649, 2003 WL
22597677, at *2 (E.D. Pa Oct. 29, 2003). The plaintiff in Hunter filed suit
against the defendant in the Court of Common Pleas of Philadelphia
County, alleging race and gender discrimination under 42 U.S.C. §198 1,
Title VII of the Civil Rights Act, and the Pennsylvania Human Relations
Act. Id. at *1. In addition, the plaintiff asserted state-law claims for
breach of contract, promissory estoppel, equitable estoppel, and
negligent misrepresentation. Id. The defendant removed the action to
federal court and thereafter answered the complaint. Id. The plaintiff
then amended her complaint to drop all federal claims and moved to
remand to state court. Id. Exercising its discretion under § 1367, the
court found that the plaintiff did not attempt to manipulate the forum;
the state court was the forum she wanted all along:
Plaintiff originally filed her Complaint in state court and was
only brought into federal court pursuant to Defendant’s
removal. Furthermore, Plaintiff did not drop her federal
claims as a reaction to an unfavorable ruling by this Court.
Rather, Plaintiff dropped her federal claims at an early stage
of the proceeding, and as such, it best promotes the values
of economy, convenience, fairness, and comity to remand the
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case
.
Id. at *2. Accordingly, the Hunter court declined to exercise jurisdiction
over the plaintiff’s state law claims. Id.
Here, too, the plaintiff Employees clearly have a forum preference,
but they have not engaged in manipulation. They did not seek to remand
in response to an unfavorable ruling by this Court, see Hunter 2003 WL
22597677, at *2, or to gain any unfair advantage from being in state
court. Rather, the Employees represent that they seek remand because
of the predominance of state claims in the Complaint. (Pis. Mot. 8—9; Pls.
Reply 6—7). State court is not an expedient, but the forum they sought
from the start.
Weighing all of the factors, I exercise my discretion to decline the
exercise of supplemental jurisdiction over the state law claims. The
motion to remand the case to state court based on lack of subject matter
jurisdiction is GRANTED.
C.
Other Issues
Finally, I decide whether to dismiss Count I with prejudice, and
whether to award costs.
Based on prejudice to the opposing party, a court may grant
dismissal on conditions. See Fed. R. Civ. P. 41(a)(2); Gravely v.
WashbashNat’l Corp, No. 09-5435 (JBS-JS), 2010 U.S. Dist. LEXIS
89968, at *4 (D.N.J. Aug. 31, 2010); Bready v. Geist, 85 F.R.D. 36, 38
(E.D. Pa. 1979). For example, “where it would be inequitable or
prejudicial to [the] defendant to allow [the] plaintiff to refile the action,”
the dismissal may be granted with prejudice Chodorow, 160 F.R.D. at
523. It would be inequitable to permit the Employees to obtain remand
based on the dismissal of Count I, only to reinstate it later. My dismissal
of Count I will therefore be WITH PREJUDICE.
In addition, a court has the discretion to condition a voluntary
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dismissal upon a plaintiff’s payment of costs, including attorney’s fees.
See, e.g., McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857, 860 (11th
Cir. 1986) (upholding dismissal but remanding to district court for
consideration of award of costs); Pefer v. Royal Bank, 121 F.R.D. 39, 41
(M.D. Pa. 1986) (granting dismissal but awarding costs where defendant
filed motion for summary judgment, albeit without exchanging
discovery); Meltzer v. National Airlines, Inc., 31 F.R.D. 47, 49, 51 (E.D. Pa.
1962) (granting dismissal with costs where defendant filed motion to
transfer but before any discovery). But costs may be denied, for example,
where motions filed in federal court may later be filed in state court. See
DuToit, 136 F’.R.D. at 88 (granting dismissal without the payment of
defendants’ expenses where defendants’ could file motion in state court
with minor changes).
In my discretion, I find that an award of costs, including attorney’s
fees, is not appropriate. Court costs, such as the filing fee, are modest
and are a byproduct of the removal, an elective procedure for
Defendants. This action will not disappear, but will proceed in parallel
fashion in state court. Costs incurred in answering the Complaint or
otherwise preparing to meet its allegations are not unique to the Section
1983 count. The NJCRA claim, for example, arises from precisely the
same facts and involves many of the same legal issues. The Town
Defendants’ cross-motion to dismiss the Complaint may without undue
difficulty be refashioned to comply with state procedures. And although
Plaintiffs’ effort to obtain a remand was far from efficient, the Town
Defendants were on notice of it very early on, and could have cut short
the delay—if that was their object—by simply consenting to voluntary
dismissal of Count I.
Accordingly, the Court’s dismissal of Count I and remand will be
with prejudice and without costs.
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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to dismiss Count I of
the Complaint and remand this matter to state court (ECF No. 49) is
GRANTED. This action will be remanded to the Superior Court of New
Jersey, Hudson County.
Dated: February 27, 2015
Kevin McNulty
United States District Judge
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