MALIANDI v. MONTCLAIR STATE UNIVERSITY
OPINION. Signed by Judge Stanley R. Chesler on 07/17/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MONTCLAIR STATE UNIVERSITY,
Civil Action No. 14-01398 (SRC)
CHESLER, District Judge
This matter comes before the Court upon: (1) Plaintiff Paula Maliandi’s appeal of
Magistrate Judge Waldor’s decision denying Plaintiff’s motion for leave to amend her Complaint
[Docket Entry 38]; (2) Defendant Montclair State University’s (“MSU”) cross-appeal of one of
Magistrate Judge Waldor’s findings within her denial of the motion for leave to amend [Docket
Entry 42]; and (3) Defendant Montclair State University’s motion to dismiss the entire
Complaint for lack of subject matter jurisdiction [Docket Entry 39]. Each party has opposed the
other’s submissions [Docket Entries 42 and 43]. The Court has considered the parties’
submissions and proceeds to rule without oral argument, pursuant to Federal Rule of Civil
Procedure 78. For the reasons set forth below, the Court will affirm Magistrate Judge Waldor’s
denial of leave to amend the Complaint, deny Defendant’s cross-appeal as moot, and grant
Defendant’s motion to dismiss.
On March 5, 2014, Plaintiff Paula Maliandi (“Plaintiff”) filed suit alleging that she was
wrongfully terminated from her job with Defendant Montclair State University (“MSU”), in
violation of the federal Family Medical Leave Act (“FMLA”) and New Jersey’s Law Against
Discrimination (“NJLAD”). Instead of filing an Answer, MSU moved to dismiss the Complaint
for lack of subject matter jurisdiction based on Eleventh Amendment sovereign immunity
grounds [Docket Entry 5]. This Court issued an Opinion and Order on July 31, 2014, concluding
that MSU is not the State’s alter ego and is subject to suit [Docket Entry 10]. Thus, the Court
denied MSU’s motion to dismiss for lack of subject matter jurisdiction [Docket Entry 10]. MSU
appealed [Docket Entry 14]. On appeal, the Third Circuit reversed and remanded this Court’s
July 31, 2014 Order, finding that MSU is indeed an arm of the State, and it therefore was entitled
to Eleventh Amendment immunity. Maliandi v. Montclair State Univ., 845 F.3d 77, 81 (3d Cir.
2016). The Third Circuit held that “unless the District Court determines on remand that New
Jersey has waived its immunity for Maliandi’s NJLAD claim, the suit against MSU must be
dismissed.” Id. at 99.
On remand, Plaintiff filed a motion for leave to amend her Complaint to add two
University employees as defendants to the FMLA claim [Docket Entry 32]. On March 9, 2017,
Magistrate Judge Waldor denied the motion for leave to amend, finding that the amendment
could not relate back because pursuant to the Third Circuit’s decision, the Court lacked subject
matter jurisdiction over the original Complaint [Docket Entry 36 (hereinafter “Mag. Op.”) at 34]. Judge Waldor also found that even if the Court had jurisdiction, the amendment would not
relate back under Federal Rule of Civil Procedure 15(c)(1)(C) because Plaintiff’s decision to
exclude the University employees as defendants in her original Complaint was a fully informed
decision rather than a mistake. (Mag. Op. at 7-8). Plaintiff now appeals Judge Waldor’s
decision [Docket Entry 38]. Defendant cross-appeals on one part of Judge Waldor’s decision
[Docket Entry 42]. Defendant also moves to dismiss the entire Complaint for lack of subject
matter jurisdiction [Docket Entry 39].
APPEAL OF MAGISTRATE JUDGE WALDOR’S OPINION AND ORDER
a. STANDARD OF REVIEW
The standard of review of a magistrate judge’s decision depends upon whether the issue
addressed was dispositive or non-dispositive. Andrews v. Goodyear Tire & Rubber Co., 191
F.R.D. 59, 67 (D.N.J. 2000). A magistrate judge’s recommended disposition of a dispositive
matter is subject to de novo review, whereas recommendations as to non-dispositive matters are
subject to lesser scrutiny under a clearly erroneous standard. FED. R. CIV. P. 72; see also In re
Gabapentin Patent Litig., 312 F. Supp. 2d 653, 661 (D.N.J. 2004). While motions to amend are
typically treated as non-dispositive matters, Gutierrez v. Johnson & Johnson, 227 F.R.D. 255,
257 (D.N.J. 2005), here, Magistrate Judge Waldor denied the motion for leave to amend in part
based on a dispositive issue of subject matter jurisdiction. This Court need not decide which
standard of review applies because under either standard, the Court is firmly convinced that
Judge Waldor’s ruling is correct. Even assuming arguendo that de novo review applies, this
Court will affirm Judge Waldor’s decision.
b. RELATION BACK
Plaintiff argues that Judge Waldor erred in denying Plaintiff leave to amend because her
amended Complaint “relates back” to the original Complaint under Rule 15(c). Under Federal
Rule of Civil Procedure 15(c), a proposed amended complaint filed after the statute of limitations
period is not barred if it “relates back” to a date prior to the end of the limitations period.
i. JURISDICTION TO CONSIDER RELATION BACK
Judge Waldor first held that the amended Complaint could not relate back here because
this Court lacked subject matter jurisdiction over the original Complaint and “an amendment
cannot relate back to a complaint over which the Court did not have subject matter jurisdiction.”
Wellness Pub. v. Barefoot, No. 02-3773, 2008 WL 108889, at *10 (D.N.J. Jan. 9, 2008) (citing
Kreider Dairy Farms, Inc. v. Glickman, 190 F.3d 113, 121 (3d Cir. 1999). In order to determine
whether Judge Waldor was correct, this Court must first, then, confirm that this Court lacks
subject matter jurisdiction.
On the appeal of this case, the Third Circuit held that due to Eleventh Amendment
immunity, this Court could not consider Plaintiff’s FMLA claim, 1 the only federal claim in the
Complaint. Maliandi, 845 F.3d 77 at 99. The Third Circuit noted that this Court could only
retain subject matter jurisdiction over the Complaint if the Court had supplemental jurisdiction
over Plaintiff’s NJLAD state law claim. Id. District courts lack “jurisdiction to hear
supplemental state-law claims against sovereign entities absent consent by the entity to suit in
federal court.” Garcia v. Richard Stockton Coll. of New Jersey, 210 F. Supp. 2d 545, 550
(D.N.J. 2002) (citing Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541 (2002)) (“[Section]
§ 1367(a)’s grant of jurisdiction does not extend to claims against nonconsenting state
defendants.”); Figueroa v. City of Camden, 580 F. Supp. 2d 390 (D.N.J. 2008) (citing Raygor,
534 U.S. at 541). Thus, the Third Circuit directed this Court to determine whether MSU has
Although the Supreme Court has not fully articulated the extent of the jurisdictional nature of
the Eleventh Amendment, the Supreme Court has stated that in some sense, the “Eleventh
Amendment defense sufficiently partakes of the nature of a jurisdictional bar.” Edelman v.
Jordan, 415 U.S. 651, 678 (1974); see also 13 CHARLES ALAN WRIGHT ET. AL., FEDERAL
PRACTICE AND PROCEDURE § 3524.1 (3d ed. 2017).
waived its immunity on the NJLAD claim, and stated that “unless the District Court determines
on remand that New Jersey has waived its immunity for Maliandi’s NJLAD claim, the suit
against MSU must be dismissed.” Maliandi, 845 F.3d 77 at 99.
“State’s sovereign immunity is ‘a personal privilege which it may waive at pleasure.’”
Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999)
(citing Clark v. Barnard, 108 U.S. 436, 447 (1883)). The State’s decision to waive that
sovereign immunity is thus “altogether voluntary on the part of the sovereignty.” Id. (internal
citation omitted). The Supreme Court has held that the “test for determining whether a State has
waived its immunity from federal-court jurisdiction is a stringent one.” Id. (internal citation
omitted). A State has only waived immunity “if the State voluntarily invokes our jurisdiction or
else if the State makes a ‘clear declaration’ that it intends to submit itself to our jurisdiction.” Id.
at 675-76 (internal citations omitted). “Anything less than an express and unequivocal waiver of
immunity is insufficient to subject a State to suit.” Bennett v. City of Atl. City, 288 F. Supp. 2d
675, 680 (D.N.J. 2003). Therefore, even if a State consents to suit in its own courts, it does not
waive its immunity in federal courts. Coll. Sav. Bank, 527 U.S. at 676 (citing Smith v. Reeves,
178 U.S. 436, 441-45 (1900)). Moreover, “a State may, absent any contractual commitment to
the contrary, alter the conditions of its waiver and apply those changes to a pending suit.” Id.
(internal citation omitted).
Here, MSU has expressly asserted immunity as an “arm of the state” throughout the
litigation. MSU never filed an Answer, instead moving to dismiss on Eleventh Amendment
sovereign immunity grounds from the outset. Additionally, on the pending appeal and motion to
dismiss, MSU expressly asserts immunity on the NJLAD claim. Thus, MSU has never
consented to the pending suit.
Moreover, even though a state can waive sovereign immunity through an explicit state
statute, “[t]he NJLAD does not contain the express language required to waive the State’s
immunity from suit in federal court.” Bennett, 288 F. Supp. 2d at 680. While the NJLAD allows
private suits against the State in New Jersey’s state courts, it does not allow suit in federal court.
Garcia, 210 F. Supp. 2d at 550 (citing N.J. STAT. ANN. §§ 10:5–5(e), 10:5–13). “New Jersey has
not stated ‘by the most express language’ that it is open to private suits under the NJLAD in
federal court.” Id. Thus, courts in this district have explained that “[t]hese principles produce
the surprising, but unfortunately inevitable, conclusion that a plaintiff may not sue the State of
New Jersey, or its alter egos, under the NJLAD in federal court.” Id.
Plaintiff argues that MSU has waived immunity because in past cases, courts have held
the State of New Jersey liable on NJLAD claims when the State was acting in its capacity as an
employer. Plaintiff cites several cases that, upon closer examination, do not support her
argument. First, she cites Rudolph v. Adamar of N.J., 153 F. Supp. 2d 528 (D.N.J. 2001), for the
proposition that when the State is acting as an employer, it has waived its sovereign immunity
for NJLAD purposes. 153 F. Supp. 2d at 542. Nevertheless, Judge Orlofsky, who decided
Rudolph, clarified in an opinion one year later that Rudolph “did not hold that the State of New
Jersey had waived its sovereign immunity in federal court when acting as an employer.” Garcia,
210 F. Supp. 2d at 550 n.4. Thus, Plaintiff’s reliance on Rudolph is unconvincing. Additionally,
Plaintiff cites Motley v. New Jersey State Police, 196 F. 3d 160 (3d. Cir. 1999), and Lanni v.
State of N.J., 177 F.R.D. 295 (D.N.J. 1998), but neither of these cases addressed the question of
sovereign immunity in relation to NJLAD claims. Finally, Plaintiff cites Heine v. Comm'r of
Dep't of Cmty. Affairs of New Jersey, No. 11-5347, 2014 WL 4199203, at *5 (D.N.J. Aug. 22,
2014), but in that case the district court actually dismissed the NJLAD claim because of Eleventh
Amendment immunity. Therefore, Plaintiff has failed to support her claim that MSU has waived
immunity on NJLAD claims when it serves as an employer.
Next, Plaintiff argues that MSU has not raised the immunity defense in past cases
brought against it under the NJLAD, and thus it automatically waived immunity from suit in this
case. This argument is unpersuasive because even if a State waives immunity in certain NJLAD
cases, it is not a blanket waiver of immunity in all NJLAD cases. The Court cannot infer waiver
from previous cases since a State may alter the conditions of its waiver for a pending suit. See
Coll. Sav. Bank, 527 U.S. at 676. Because this Court has no grounds upon which to find a
waiver of immunity, MSU is immune from suit under the NJLAD as well.
Because MSU has not consented to suit under the NJLAD in federal court, this Court
lacks supplemental jurisdiction over the NJLAD claim. In turn, the Court lacks subject matter
jurisdiction over the only two claims in the original Complaint. Because this Court lacks subject
matter jurisdiction over the original Complaint, the amendment cannot relate back. See Wellness
Pub. v. Barefoot, 2008 WL 108889, at *10 (“[A]n amendment cannot relate back to a complaint
over which the Court did not have subject matter jurisdiction.”) (citing Kreider Dairy Farms,
Inc. v. Glickman, 190 F.3d at 121). This Court therefore affirms Judge Waldor’s decision that
the Court lacks subject matter jurisdiction over the original Complaint and therefore, Plaintiff’s
amendment cannot relate back.
ii. AMENDMENTS THAT CHANGE THE PARTY AGAINST WHOM A CLAIM
IS ASSERTED UNDER RULE 15(C)(1)(C)
Even if the Court had subject matter jurisdiction over the original Complaint such that
Plaintiff’s relation back argument could proceed, 2 the amended Complaint would not relate back
under Federal Rule of Civil Procedure 15(c)(1)(C). Under the rule, if a party amends the
defendants against whom a claim is asserted, the amendment only “relates back” if: “the
amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out – or attempted to be set out – in the original pleading,” and if:
[W]ithin the period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the
(ii) knew or should have known that the action would have been brought against it, but
for a mistake concerning the proper party's identity
FED. R. CIV. P. 15(c)(1)(C).
1. MISTAKE UNDER RULE 15(C)(1)(C)(II)
The question under Rule 15(c)(1)(C)(ii) is whether the new defendant “knew or should
have known that it would have been named as a defendant but for an error.” Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 548 (2010). Thus, the focus of this inquiry is on “what the
prospective defendant knew or should have known during the Rule 4(m) period, not what the
This Court can consider Plaintiff’s argument regarding Federal Rule of Procedure 15(c)
because although the Supreme Court has stated that “a federal court has no power to entertain an
action if Article III jurisdiction is lacking – [this rule] simply does not apply when the
jurisdictional defect is the bar erected by the Eleventh Amendment.” In re Hechinger Inv. Co. of
Delaware, Inc., 335 F.3d 243, 250 (3d Cir. 2003). See also Bowers v. Nat'l Collegiate Athletic
Ass'n, 346 F.3d 402, 418 (3d Cir. 2003) (“Eleventh Amendment cases do not raise the same
separation of powers concerns with respect to hypothetical jurisdiction as do Article III standing
plaintiff knew or should have known at the time of filing her original complaint.” Id. “To the
extent the plaintiff’s postfiling conduct informs the prospective defendant’s understanding of
whether the plaintiff initially made a ‘mistake concerning the proper party’s identity,’ a court
may consider the conduct.” Id. at 554. “When the original complaint and the plaintiff’s conduct
compel the conclusion that the failure to name the prospective defendant in the original
complaint was the result of a fully informed decision as opposed to a mistake concerning the
proper defendant’s identity, the requirements of Rule 15(c)(1)(C)(ii) are not met.” Id. at 552.
Here, Judge Waldor found that the amendment could not relate back under Rule
15(c)(1)(C) because Plaintiff failed to demonstrate that the University employees were aware
that an action would have been brought against them if Plaintiff had not made a mistake. Judge
Waldor found that even though Plaintiff was “well aware of the proposed defendants’ identities”,
she “proceeded on her theory of recovery despite ample opportunity to modify her approach.”
(Mag. Op. at 7-8). Plaintiff declined to amend as of right and she again declined to amend with
the Court’s leave even after MSU filed its motion to dismiss that alerted Plaintiff that MSU could
be immune. (Mag. Op. at 7). From this conduct, the prospective defendants were likely to infer
that they would not be brought into suit and that Plaintiff’s decision not to include them as
defendants was part of her fully informed litigation strategy. Plaintiff only added the University
employees once she found out that MSU was immune. This is not the type of mistake the statute
anticipates. Therefore, this Court affirms Judge Waldor’s decision that Plaintiff’s amended
Complaint does not relate back under 15(c)(1)(C).
2. NOTICE UNDER RULE 15(C)(1)(C)(I)
MSU cross-appeals one part of Judge Waldor’s decision. In Judge Waldor’s opinion, she
found that under Rule 15(c)(1)(C)(i), the University employees had constructive notice of the
lawsuit through their identity of interest with the University. Judge Waldor explained that the
University employees “by virtue of their high positions and the nature of Plaintiff’s suit – surely
were positioned akin to the University itself such that they received constructive notice of the
litigation.” (Mag. Op. at 7). Despite this constructive notice, however, she found that the
amended Complaint did not relate back under Rule 15(c)(1)(C)(ii) because the University
employees could not have inferred from Plaintiff’s conduct that but for a mistake, they would
have been brought into suit. MSU appeals Judge Waldor’s determination that the University
employees had constructive notice by virtue of their positions.
This Court need not reach the issue on cross-appeal because as explained above, the
Court is affirming Judge Waldor’s decision that the amended Complaint does not relate back
under Rule 15(c)(1)(C)(ii). This Court agrees with Judge Waldor that the amended Complaint
does not relate back because the University employees would not have inferred that they would
be brought into suit considering that Plaintiff fully intended to sue MSU only, and not the
University employees. Therefore, this Court need not determine whether the proposed new
defendants had constructive notice. In sum, because the Court affirms Judge Waldor’s decision,
MSU’s cross-appeal is moot.
MOTION TO DISMISS
Defendant moves to dismiss the Complaint in its entirety as a necessary corollary to the
denial of leave to amend. Plaintiff, in response, argues that even if the Court lacks jurisdiction
over the federal FMLA claim, the Court retains supplemental jurisdiction over the NJLAD claim.
This Court has already explained above that it lacks supplemental jurisdiction to hear the NJLAD
claim because MSU has not waived its immunity from suit on the NJLAD here. Given that MSU
is immune from suit under the FMLA and the NJLAD, the only two claims that Plaintiff has
brought here, the Court must dismiss the Complaint in its entirety. 3 The Court dismisses this
case without prejudice, leaving Plaintiff the opportunity to file a state court action. Although
Plaintiff may still face a sovereign immunity issue in state court, she is free to litigate that issue
For the foregoing reasons, the Court will affirm Magistrate Judge Waldor’s Opinion and
Order and grant Defendant’s motion to dismiss. An appropriate Order will be filed herewith.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: July 17, 2017
Plaintiff’s argument that the Court has discretion to exercise jurisdiction over the remaining
state law claim is plainly inaccurate because MSU has shown that is immune from suit on the
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