CARDONA v. DOW JONES & COMPANY et al
Filing
11
LETTER OPINION filed. Signed by Judge Freda L. Wolfson on 11/27/2012. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
(609) 989-2182
Clarkson S. Fisher Federal Building &
U.S. Courthouse
402 East State Street
Trenton, New Jersey 08608
CHAMBERS OF
FREDA L. WOLFSON
UNITED STATES DISTRICT JUDGE
LETTER MEMORANDUM
Sarah F. Meil
67 Bridge Street
P.O. Box 145
Milford, NJ 08848
Harris Samuel Freier
Genova Burns Giantomasi & Webster
494 Broad Street
Newark, NJ 07102
Annmarie Pinarski
Weissman & Mintz, LLC
1 Executive Drive, Suite 200
Somerset, NJ 08873
November 27, 2012
RE: Ivan Cardona v. Dow Jones & Company, et al.
Civil Action No.: 12-04679
Dear Counsel,
On June 13, 2012, Plaintiff Ivan Cardona (“Plaintiff”) filed a pro se seventeen count
complaint against Defendants Dow Jones, several Dow Jones employees (collectively, “the Dow
Jones Defendants”), his union, and his union representative (collectively, “Union Defendants”)
in the Superior Court of New Jersey, Middlesex County, Law Division. The Complaint alleges
that Plaintiff was discriminated and retaliated against in violation of the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. § 10:5-1, et seq., and also asserts several tort and contract
related allegations against Defendants. On July 26, 2012, Defendants removed this matter to the
United States District Court for the District of New Jersey on the basis of federal question
jurisdiction pursuant to 28 U.S.C. §§ 1441, and 1446, and, for the state law claims, by virtue of
supplemental jurisdiction pursuant to 28 U.S.C. § 1367. The Dow Jones Defendants
subsequently moved pursuant to F.R.C.P. 12(b)(6) to dismiss all claims against them on August
13, 2012. After the case was removed to this Court, Plaintiff retained counsel and filed an
Amended Complaint asserting only state law causes of action for discrimination and retaliation
pursuant to the NJLAD on August 23, 2012. As the Amended Complaint asserts only claims
arising under state law against non-diverse parties, Plaintiff moved to remand this matter to the
Superior Court of New Jersey. The Union Defendants moved to dismiss the Complaint pursuant
to F.R.C.P. 12(b)(6) on August 24, 2012. By letter dated August 31, 2012, the Dow Jones
Defendants indicated that they have entered into a stipulation with Plaintiff agreeing to withdraw
their Motion to Dismiss and not oppose Plaintiff’s Motion to Remand. Pursuant to this
stipulation, Plaintiff will file a new amended complaint in state court which mirrors the current
Amended Complaint but excludes the individual Dow Jones Defendants from the Complaint. No
opposition to the Motion to Remand has been received from the Union Defendants.
Plaintiff argues that remand is proper because the Amended Complaint does not assert
any federal law claims, therefore, the Court no longer has federal question jurisdiction. Plaintiff
further urges the Court to follow Third Circuit precedent and not apply a strict “time of filing”
rule in determining whether the Court has continued jurisdiction. Under the “time of filing” rule,
“[c]onceivability is determined at the time a lawsuit is filed.” Nuveen Mun. Trust v.
Withumsmith Brown, P.C., 692 F.3d 283, 294 (3d Cir. 2012) (citing Grupo Dataflux v. Atlas
Global Group, L.P., 541 U.S. 567, 570 (2004)) (“the jurisdiction of the Court depends upon the
state of things at the time of the action brought”)). The rule was originally set out in the diversity
context, see St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 286, 290-92, 82 L. Ed.
845, 58 S. Ct. 586 (1938), and “has been applied only rarely to federal question cases.” New
Rock Asset Partners, L.P. v. Preferred Entity Advancements, 101 F.3d 1492, 1503 (3d Cir.
1996).1 “[T]he underlying concern of the time of filing rule was the risk that parties would
deploy procedural tactics to manipulate federal jurisdiction.” Id. Indeed, the Third Circuit has
noted that “[e]ven in the federal question context … the focus of the time of filing rule has been
on preventing manipulation of jurisdiction when a claim is removed.” Id.
Here, although the Amended Complaint eliminates the federal claims that provide the
basis of this Court’s subject matter jurisdiction, it does not appear that this was done solely to
prevent jurisdiction. Plaintiff, who drafted the initial complaint as a pro se litigant, amended the
complaint after retaining counsel and upon realizing that several of the claims originally plead
were time-barred or otherwise defective. Thus, Plaintiff’s amendments were not made for the
purpose of defeating jurisdiction, but rather to avoid unnecessary motion practice and effort
prosecuting and defending unsustainable claims. As such, the Court finds the amendments were
not made solely to defeat jurisdiction and declines to apply a strict “time of filing” rule in
determining whether the Court has jurisdiction over this matter. Accord Ortiz v. Univ. of Med.
& Dentistry of N.J., Dkt. No. 08-2669, 2009 U.S. Dist. LEXIS 63220, at *10 (D.N.J. July 23,
1
The Court notes that, in a recent bankruptcy jurisdiction case, the Third Circuit
questioned the continued viability of exceptions to the time-of-filing rule, however, the Circuit
did not overturn its prior decision in New Rock that refused to apply it in a federal question case.
See Nuveen, 692 F.3d at 294.
2009) (finding voluntary dismissal of claim providing federal jurisdiction and seeking remand is
not impermissible forum manipulation). Because the Amended Complaint does not allege any
cause of action arising under federal law and the parties involved are non-diverse, this Court
lacks subject matter jurisdiction. Pursuant to 28 U.S.C. § 1447, “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c). Accordingly, the Court must remand this matter to the
Superior Court of New Jersey, Middlesex County, Law Division.
Moreover, even if the federal law claims alleged in the original complaint are sufficient
to confer subject matter jurisdiction on this Court, this case should nevertheless be remanded to
the state court because there is no justification for exercising supplemental jurisdiction over the
state law claims. The Court of Appeals for the Third Circuit has held that, where all federal
claims are 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) (citations omitted). Here, Plaintiff has voluntarily dismissed all claims arising under
federal law and there are no extraordinary circumstances present to justify retaining
supplemental jurisdiction over the remaining state law claims. No discovery has taken place in
this matter and remand would not be inconvenient or unfair to the parties. Indeed, no opposition
has been received from the Union Defendants and the Dow Jones Defendants have entered a
stipulation with Plaintiff in which they agree not to oppose the motion for remand and withdraw
their motion to dismiss. Thus, having considered concerns of judicial economy, convenience,
fairness, and comity, the Court finds that since only state law claims will remain in this case, this
matter properly belongs in state court. Accordingly, the Court declines to exercise supplemental
jurisdiction and remands this case to the Superior Court of New Jersey, Middlesex County, Law
Division. Finally, with regard to the motion to dismiss filed by the Union Defendants, as the
Court no longer has jurisdiction over this matter, the motion to dismiss is denied as moot; it may
be refiled in state court.
Very truly yours,
s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
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