ALLEN et al v. THE STATE OF NEW JERSEY et al
Filing
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OPINION filed. Signed by Judge Anne E. Thompson on 11/17/2016. (mmh)
NOT FOR PUBLICATION
R 'E C E I V E D
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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NOV 18 2016
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Plaintiffs,
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Civ. No. 16-5672
v.
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OPINION
CHARLES T. ALLEN and KIMBERLY
ALLEN,
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WILLIAM T. WALSH
CLERK
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STATE OF NEW JERSEY, ATTORNEY
GENERAL OF NEW JERSEY, DIVISION
OF STATE POLICE, JOSEPH FUENTES,
SUPERINTENDENT, LT. WILLIAM
SCULL, and JOHN DOES (1-10),
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Defendants.
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THOMPSON, U.S.D.J.
This matter comes before the Court upon the motion of Plaintiffs Charles T. Allen and
Kimberly Allen ("Plaintiffs") to remand their case to the Superio.r Court o(~f!W Jersey, Law Division, Mercer County. (ECF No. 8). Defendants State of New Jersey, Attorney General of
New Jersey, Division of State Police, Joseph Fuentes, and Lt. William Scull ("Defendants")
oppose. (ECF No. 12). The Court has issued the opinion below based upon the written
submissions of the parties and without oral argument pursuant to Local Civil Rule 78.l(b). For
the reasons stated herein, Plaintiffs' motion to remand will be denied.
BACKGROUND
This is an employment claim brought by a New Jersey State Trooper for accidental
disability retirement benefits or reinstatement to prior employment position, and payment for lost
fringe benefits, seniority, wages, and punitive damages. (Compl. at 3-5, ECF No. 1-1). Plaintiff
Charles T. Allen alleges that on or about September 27; 2012, his subordinates entered his office
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and illegally accessed and viewed his work computer. (Id. , 7). Plaintiff alleges that this
incident subjected him to improper punitive action. (Id. , 8). He further alleges that he reported
this violation of law by his subordinates and was retaliated against for so reporting~ (Id. , 9).
On August 7, 2015, Plaintiff renewed his complaint alleging retaliation; he alleged that
Defendants refused to promote Plaintiff though he was eligible, refused to allow Plaintiff to
retire, and refused to process his timely retirement application. (Id. ,
if 11, 17).
Defendants have
further refused to allow Plaintiff to display his rank. (Id., 13).
Additionally, Plaintiff alleges that the Division of State Police medical personnel have
determined that he suffers from Post-Traumatic Stress Disorder stemming from work-related
exposures, and Defendants have failed to address these issues and/or have discriminated against
him on this basis. (See Compl. Counts Four and Five, ECF No. 1-1).
Plaintiff Kimberly Allen alleges loss of consortium and services of her husband and coplaintiff. (See Compl. Count Six, ECF No. 1-1).
Iii the Complaint, Plaintiffs cite few laws, but allege that Defendants' conduct violated
N.J.S.A. 34:19-1 et seq. (Compl., 19, ECF No. 1-1), the Americans with Disabilities Act
(Compl. Count Four, ECF No. 1-1), and Federal and New Jersey Laws Against Discrimination
(Compl. Count Five, ECF No. 1-1);
Defendants removed this action to federal court on September 16, 2016. (ECF No. 1).
Plaintiffs moved to remand this action ort October 14, 2016. (ECF No. 8). This motion is
presently before the Court.
LEGAL STANDARD
A defendant may remove a civil action filed in state court to the federal court where the
action might originally have been brought. 28 U.S.C. §§ 1441(a). However, the· federal court to
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which the action is removed must have subject matter jurisdiction. Id. Federal district courts
have subject matter jurisdiction over civil actions that involve a federal question or diversity of
citizenship. 28 U.S.C. §§ 1331, 1332. Federal-question jurisdiction exists when the action arises
''under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331, 1441(c)(l)(A).
"A case arises under federal law within the meaning of§ 1331 ... if a well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiffs right to relief
necessarily depends on resolution of a substantial question of federal law." Empire Healthchoice
Assur., Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006) (internal quotations omitted). Diversity
jurisdiction exists when the action arises between citizens of different states, and the a.J}lount in
controversy exceeds $75,000. 28 U.S.C. § 1332, 1441(b). If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case must be remanded to state
court. 28 U.S.C. § 1447(c).
The party th~t removed the case bears the burden of establishing federal jurisdiction.
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). Federal courts must "scrupulously
confine their own jurisdiction to the precise limits" of§ 1441 to give "[d]ue regard [to] the
rightful independence of state governments."· See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108-09 (1941 ). Thus, the removal statute is strictly construed against removal and all
doubts are to be resolved in favor of remand. Entrekin v;· Fisher Scientific, Inc., 146 F. Supp. 2d
594, 604 (3d Cir. 2001 ).
Under 28 U.S.C. § 1367, where the court has original jurisdiction over an action, the
court may exercise supplemental jurisdiction· over additional claims stemming from the same
case or controversy if considerations of judicial e·conomy, convenience, and fairness to the
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parties provide an affirmative justification for doing so. Borough of W. Mifflin v. Lancaster, 45
F.3d 780, 788 (3d Cir. 1995).
DISCUSSION
In this case, Defendants allege that this Court has original federal question jurisdiction
over this action pursuant to 28 U.S.C. § 1331. (Notice of Removal~ 5, ECF No. 1). Defendants
further assert that the action is removable based on Diversity of Citizenship, Joinder of Federal
Law Claims and State Claims, and civil rights jurisdiction.
(Id.~
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(c), § 1443). Nowhere are facts alleged that would qualify this claim for removal under diversity
jurisdiction and all parties are residents of New Jersey; thus, that argument fails. Regarding the
federal question argument, Defendants allege that Plaintiffs complained of violations of their
rights under the Americans with Disabilities Act (ADA), the New Jersey Tort Claims Act, and
otherretaliation and discrimination laws. (Notice of Removal~ 3, ECF No. 1).
Plaintiffs argue that federal law is not the basis of the causes of action in the Complaint
nor does the Complaint raise substantial federal questions and thus, the case is not removable.
See Empire Healthchoice, 547 U.S. at 690, supra. Plaintiffs argue that the ADA is not relied
upon as a cause of action-and in fact there is no cause of action under the ADA. The ADA is
only-referenced--"for guidance." (Mot Remand at 8, ECF No. 8). Furthermore, the Complaint
. only alleged violations of the New Jersey Law Against Discrimination, the New Jersey
Cons_cient!ous Employee Protection Act (CEPA), the New Jersey Tort Claims Act, and common
· taw tort claims~- (Id.). ,
The Court finds that the Complaint, on its face,.alleges that Defendants' conduct violated
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N.J.S.A. 34:19-1 et seq. (Compl. ~ 19, ECF No. l~l), the Americans with Disabilities Act
(Compl. Count Four, E(~ENo.~ l-1), and Federal and New Jersey Laws Against Discrimination
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(Compl. Count Five, ECF No. 1-1). Specifically, two counts mention a basis in federal law:
Count Four referencing the ADA and Count Five referencing Federal and New Jersey Laws
Against Discrimination. Thus, the Court must address if these references to federal law are
sufficiently central to the Complaint to create federal question jurisdiction.
Regarding Count Four, state employees cannot sue their employer for violating ADA
rules; the state employer is protected by the Eleventh Amendment sovereign immunity clause.
Bd. of Trustees of U. ofAla. v. Garrett, 531 U.S. 356 (2001). Employees must seek
administrative remedies. Id. Thus, the claim stated in Count Four is not a federal cause of
action. However, arguably, Plaintiffs' right to relief necessarily depends on an analysis of the
ADA. The fact that Plaintiffs' right to relief necessarily depends on resolution of a substantial
question of federal law is sufficient to find that the case arises under federal law within the
meaning of§ 1331. Empire Hea/thchoice, 547 U.S. 689-90. Plaintiffs themselves note that the
ADA will provide "guidance" in the court's analysis. (Opp. at 8, ECF No. 8).· Thus, the claim in
Count Four arises under federal law and qualifies for federal question jurisdiction.
Regarding Count Five, Plaintiffs allege violations of"Federal and New Jersey Laws
Against Discrimination:" There is no general "Federal Law Against Discrimination," but the
.Court can assume the Plaintiffs meant to reference the federal equivalent of the New Jersey Law
Against Discrimination (N.J.S.A. 10-5-12) or other federal laws. Thus, Count Five, to the extent
_ it refers to federal rather than state sources oflaw, arises under the laws of the United States and
can serve as the basis for removal. 28 U.S.C. 1441(c)(l)(A).
The additional counts incorporate all of the factual allegations of the other counts, and
simply allege additional causes of action. (See Compl. at 5-11, ECF No. 1-1 ). Thus, the other
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claims arise out of the same case or controversy as Counts Four and Five, and the Court may
exercise supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367.
Plaintiffs also argue that the case must be remanded because of procedural defects in the
notice of removal. (Mot. Remand, ECF No. 8). These arguments are without merit. All
Defendants were represented by and spoken for in Defendants' Notice of Removal. (ECF Nos.
1, 12). To the extent that Defendants failed to include the Plaintiffs' Tort Claim Notice,
allegedly served upon Defendants with the other state court pleadings, that should be remedied
by Defendants but is insufficient to warrant remand of the entire case. See 28 U.S.C. 1446(a).
Defendants did include a copy of the initial pleading setting forth the claim for relief upon which
the action was based, which is the crucial point. 28 U.S.C. 1446(b)(l).
Plaintiffs also argue that they "may avoid federal jurisdiction by exclusive reliance on
state law" (Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)) and that they, as the party
who brought suit, are "master to decide what law [they] will rely upon" (Franchise Tax Bd. Of
State of Cal. V. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 22 (1983)). (Mot.
Remand at 9-10, ECF No. 8). On that basis, Plaintiffs contend that their case is solely based on
state causes of action and must be remanded. (Id. at 8). Plaintiffs go further in their reply,
stating that "where facts support both state and Federal claims, they may eschew the later [sic]
and proceed with the state claims. They therefore indicate, that with leave of court, they would
abandon federal question claims or reliance on Federal laws." (Reply at 2-3, ECF No. 13).
Federal Rule of Civil Procedure 15(a)(2) provides that ''a party may amend its pleading ...
with the opposing party's written consent or the court's leave." Leave to amend is.to be freely
granted unless there is a reason for denial. Concepcion v. CFG Health Sys. LLC, 2013 WL
5952042, at *1 (D.N.J. Nov. 6, 2013) (citingFoman v. Davis, 371 U.S. 178·, 182 (1962)). Where
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plaintiffs properly move to amend their complaint to exclude federal claims, remand may be
proper. Id.
However, as outlined above, Plaintiffs' claims were not limited to state claims on
the face of the Complaint. Furthermore, Plaintiffs have not made a motion to amend the
complaint. Therefore, to the extent that Plaintiffs seek to amend and limit their
complaint, they may pursue that option by motion. However, the Court has original
federal question jurisdiction or supplemental jurisdiction over each claim in this
Complaint and thus, remand is inappropriate at this time.
CONCLUSION
For the reasons above, Plaintiffs' motion to remand will be denied. A corresponding
order follows.
Dated:
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