KENNY v. DENBO et al

Filing 21

OPINION filed. Signed by Judge Anne E. Thompson on 1/5/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT KENNY,
Plaintiff,
Civ. No. 16-8578
v.
OPINION
SUSAN M. DENBO, RIDER
UNIVERSITY, and THE RIDER
UNIVERSITY CHAPTER OF THE
AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS,
Defendants.
THOMPSON, U.S.D.J.
This matter comes before the Court upon the motion of Plaintiff Robert Kenny
(“Plaintiff”) to remand his case to the Superior Court of New Jersey, Law Division, Mercer
County, and to compel discovery. (ECF No. 6). Defendant Rider University Chapter of the
American Association of University Professors (“Rider Chapter”) opposes. (ECF No. 11).
Defendants Susan M. Denbo (“Denbo”) and Rider University (“University”) cross-move for a
stay of discovery (ECF No. 12) pending disposition of the pending motion to dismiss (ECF No.
8). The cross-motion for a stay of discovery is supported by Rider Chapter (ECF No. 13) and
opposed by Plaintiff (ECF No. 14). The Court has issued the opinion below based upon the
written submissions of the parties and without oral argument pursuant to Local Civil Rule
78.1(b). For the reasons stated herein, Plaintiff’s motion to remand will be denied, Plaintiff’s
motion to compel discovery will be granted, and Defendants’ cross-motion to stay discovery will
be denied.

1

BACKGROUND
This is an action for common law libel and fraud by Denbo and the University, breach of
contract by the University, and denial of fair representation by the Rider Chapter in violation of
the Labor Management Relations Act (29 U.S.C. § 185). (Compl. ¶¶ 115–134, ECF No. 1-1).
Plaintiff’s four claims and relevant factual allegations are as follows: Plaintiff was an adjunct
professor at Rider University who was teaching a course for the first time. As was typical when
he was teaching a course for the first time, the Department Chair provided a syllabus to Plaintiff
to use as a basis for his own course syllabus. The model syllabus was created by Defendant
Denbo and had Denbo’s name on it. Plaintiff provided his students with that syllabus, with a few
alterations, and noted to them that it was Denbo’s syllabus and that his course would deviate
from it somewhat. Plaintiff had also uploaded Denbo’s materials—which were available to the
entire Rider community—onto his course site; however, the materials were not yet released to
his students. Defendant Denbo then falsely accused him of unauthorized access and use of her
student resources and syllabus and sought to have him fired from Rider University for “extreme
unethical behavior.” (Id. ¶ 45, emphasis in the original). As a result, a grievance was filed
against him. Plaintiff alleges that Denbo’s libelous statements caused injury to his professional
reputation, mental anguish, and the loss of adjunct professor position at Rider University. (Id. at
¶ 115).
Plaintiff then entered into settlement negotiations regarding the grievance. During the
settlement negotiations for the grievance, Denbo affirmatively misrepresented the facts and the
University concealed emails and other documents that were available to it and which it was
required to disclose, which caused Plaintiff to accede to a settlement agreement that he would not
have agreed to had those facts been known. (Id. at ¶¶ 119–121). The University then

2

communicated to unemployment authorities that Plaintiff was suspended for misconduct, even
though the settlement agreement provided for no admission of wrongdoing on Plaintiff’s part.
(Id. at ¶¶ 122–123). This caused Plaintiff to lose unemployment benefits.
Additionally, during the entire grievance process, the Rider Chapter failed to provide
good faith representation of Plaintiff in violation of § 301 of the Labor Management Relations
Act (29 U.S.C. § 185). (Id. at ¶¶ 124–134). Specifically, the union lawyer failed to inform
Plaintiff that he represented the union, not Plaintiff, and that the union had a conflict of interest
in the case because both Plaintiff and Defendant Denbo were members of the union. (Id. ¶¶ 80–
82). Furthermore, the union lawyer failed to get a written waiver of the conflict in accordance
with the Rules of Professional Conduct. (Id. ¶ 83). Lastly, the union lawyer failed to challenge
the truth of the charges or seek discovery and admission of relevant evidence and witnesses,
which would have shown Plaintiff innocent of wrongdoing; rather, the union lawyer only
challenged the level of discipline imposed. (Id. ¶¶ 78–93).
Based on these facts, Plaintiff has brought a four-count complaint: Count I for Libel by
Denbo and the University; Count II for Fraud and Equitable Fraud by Denbo and the University;
Count III for Breach of Contract by the University; and Count IV for Denial of Fair
Representation by the union, Rider Chapter. (Id. ¶¶ 115-134). Count IV against the Rider
Chapter is a new count added in this Fourth Amended Complaint. (Notice of Removal, ECF No.
1).
Defendant Rider Chapter removed this action to federal court on November 17, 2016.
(ECF No. 1). Plaintiff moved to remand the action on November 23, 2016, and additionally
moved to compel discovery. (ECF No. 6). Defendants Denbo and Rider University crossmoved for a stay of discovery (ECF No. 12). These motions are presently before the Court.

3

DISCUSSION
I.

Motion to Remand
A. 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
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)(1)(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 plaintiff's 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 amount 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 that 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

4

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 economy, convenience, and fairness to the
parties provide an affirmative justification for doing so. Borough of W. Mifflin v. Lancaster, 45
F.3d 780, 788 (3d Cir. 1995).
B. Analysis
In this case, Defendant Rider Chapter alleges that this Court has original federal question
jurisdiction over this action pursuant to 28 U.S.C. § 1331 because Plaintiff’s Fourth Amended
Complaint Count IV was brought pursuant to § 301 of the Labor Management Relations Act (29
U.S.C. § 185), a federal law. (Notice of Removal ¶¶ 5, 6, ECF No. 1).
Plaintiff argues that removal based on Count IV should be denied based on “inconvenient
forum principles.” (Pl.’s Br. at 2, ECF No 6).
The Court finds that the Complaint, on its face, alleges that Rider Chapter’s conduct
violated federal law 29 U.S.C. § 185. (Compl. Count IV, ECF No. 1-1). Thus, this Court
properly has jurisdiction over Rider Chapter and the cause of action in Count IV.
However, where the court lacks subject matter jurisdiction, it may dismiss or remand sua
sponte. 28 U.S.C. § 1447(c). A court has supplemental jurisdiction over additional claims
stemming from the same case or controversy if considerations of judicial economy, convenience,
and fairness to the parties provide an affirmative justification for doing so. Borough of W.
Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). In this case, Count IV is not simply an
additional cause of action against the same defendants for the same conduct. Counts I-III are for

5

distinct grievances against distinct defendants. Thus, it is not immediately clear that the other
claims arise out of the same case or controversy as Count IV such that the Court may exercise
supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367. However, the discovery
relevant to Count IV, likely overlaps significantly with the discovery relevant to Counts I-III
against Denbo and the University. Thus, considerations of judicial economy, convenience, and
fairness to the parties dictate that the Court may properly exercise supplemental jurisdiction over
those claims.
Regarding Plaintiff’s inconvenient forum argument, forum non conveniens is a
basis for a defendant to move for dismissal of an action, not for a plaintiff to challenge removal
of an action. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). It is a more aggressive step
than a motion to transfer venue; it is not an alternative to a motion to remand. See All States
Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952). Forum non conveniens grants relief to
a defendant “when an alternative forum has jurisdiction to hear the case, and when trial in the
chosen forum would establish . . . oppressiveness and vexation to a defendant . . . out of all
proportion to the plaintiff’s convenience.” Delta Air Lines, Inc. v. Chimet, S.p.A., 619 F.3d 288,
294–95 (3d Cir. 2010) (quoting Piper Aircraft, 454 U.S. at 241). In this case, where the federal
forum is in the same county as the state forum, the party seeking to invoke forum non conveniens
will not be oppressed or vexed by being required to appear and produce evidence in the federal
court rather than the state court. Thus, this argument fails.
Accordingly, Plaintiff’s motion to remand will be denied.
II. Motion to Compel Discovery
Plaintiff also moves to compel discovery and enforce the state court’s discovery order.
(Pl.’s Br. at 3, ECF No. 6). Defendants Denbo and University oppose and cross move for a stay

6

of discovery pending a decision on the motion to dismiss (ECF No. 12), which Rider Chapter
joins (ECF No. 13).
The pending motion to dismiss only pertains to the claims against Rider Chapter. Thus,
there is no reason to grant a stay of discovery and the Court will grant Plaintiff’s motion to
compel discovery and deny Defendants’ cross-motion to stay discovery.
CONCLUSION
For the reasons above, Plaintiff’s motion to remand will be denied, Plaintiff’s motion to
compel discovery will be granted, and Defendants Denbo and University’s cross-motion to stay
discovery pending disposition of the motion to dismiss will be denied. A corresponding order
follows.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
Dated: 1/5/17

7