NORTON v. STOP AND SHOP STORE #830 et al

Filing 14

OPINION filed. Signed by Judge Freda L. Wolfson on 8/22/2017. (mmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
THOMAS J. NORTON,
:
:
Plaintiff,
:
:
Civil Action No. 16-9385 (FLW)
v.
:
:
OPINION
STOP AND SHOP STORE # 830; AHOLD
:
U.S.A., INC; BARBARA BODNAR;
:
SCOTT TRAEGER; and RICHARD
:
GOLDMAN; et al.,
:
:
Defendants.
:
__________________________________________:
WOLFSON, United States District Judge:
Plaintiff Thomas J. Norton (“Plaintiff”) brings the instant action against Defendants the
Stop and Shop Supermarket Company, LLC (“Stop and Shop”), Ahold U.S.A., Inc. (“Ahold”),
Barbara Bodnar, Scott Traeger, and Richard Goldman (collectively, “Defendants”), asserting six
causes of action arising out of an alleged assault and battery that occurred at the Stop and Shop
location where Plaintiff was employed. Specifically, the Complaint asserts New Jersey statutory
and common law claims for: (1) violation of the New Jersey Conscientious Employee Protection
Act (“CEPA”), N.J.S.A. 34:19-1 et seq.; (2) breach of the implied covenant of good faith and fair
dealing 1; (3) intentional and negligent infliction of emotional distress; (4) assault and battery; (5)

1

In his Opposition to Defendants’ Motion to Dismiss, Plaintiff voluntarily dismissed his implied
covenant claim, asserted in Count Two of the Complaint. Nonetheless, as discussed in Section
I(B)(2), infra, the removability of a matter is determined at the time of removal, see Am. Fire &
Cas. Co. v. Finn, 341 U.S. 6, 14 (1951), and because I find that § 301 of the LMRA preempts
Plaintiff’s implied covenant claim, this Court had original jurisdiction over the instant matter at
the time of removal. Nonetheless, because the Court finds, in Sections I(B)(1) & (3), infra, that
neither Count One nor Count Three of the Complaint are preempted by § 301, and thus, that
1

negligent supervision and training; and (6) punitive damages. 2 While the Complaint was initially
filed in New Jersey Superior Court, it was subsequently removed to this Court based upon
Defendants’ assertion that § 301 of the Labor Management Relations Act (“LMRA”) 3 preempts
Plaintiff’s CEPA, implied covenant, and emotional distress claims.
Presently before the Court are Plaintiff’s Motion to Remand and Defendants’ Partial
Motion to Dismiss. For the reasons that follow, the Court finds that: (1) this Court had federal
jurisdiction over the Complaint at the time of removal, because Count Two, Plaintiff’s breach of
the implied covenant of good faith and fair dealing claim, is preempted by § 301 of the LMRA,
and thus, Plaintiff’s Motion to Remand is DENIED; (2) Plaintiff’s implied covenant claim and
claim for punitive damages, asserted in Counts Two and Six, respectively, are voluntarily
DISMISSED; (3) no other claims implicate the LMRA, and thus, there is no existing basis for
federal jurisdiction; (4) this Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims, and therefore, the Motion to Dismiss is DENIED without prejudice as
to all other claims; and (5) Plaintiff’s remaining claims, asserted in Counts One, Three, Four, and
Five, are REMANDED to the Superior Court of New Jersey, Ocean County, Law Division for
further proceedings.

Count Two was the only claim conferring federal jurisdiction upon this Court, the dismissal of
Count Two deprives the Court of its only basis to assert original jurisdiction over this matter.
2
Count Six of the Complaint purports to assert a claim for punitive damages. Compl. at ¶¶ 2829. However, “because in New Jersey there is no independent cause of action for punitive
damages,” California Nat., Inc. v. Nestle Holdings, Inc., 631 F. Supp. 465, 474 (D.N.J. 1986),
Count Six will be dismissed for failure to state a claim. Indeed, in his Opposition to Defendants’
Partial Motion to Dismiss, Plaintiff concedes that “[t]he sixth count of the complaint serves to
notice the defendants that punitive damages are sought and does not purport to state a separate
cause of action.” Pl.’s Opp. to Defs.’ Mot. to Dismiss. The Court makes no comment on
whether punitive damages are available under Plaintiff’s other causes of action.
3
§ 301 of the LMRA is codified at 29 U.S.C. § 185, and thus, for the purposes of this Opinion, §
301 and § 185 will be referenced interchangeably.
2

BACKGROUND
As both the Motion to Remand and Motion to Dismiss concern the same set of facts, the
Court will recount the relevant facts pertaining to both Motions. This matter arises out of an
alleged assault and battery, occurring between two employees of Stop and Shop. Plaintiff is a
current part-time employee of Stop and Shop, and was employed by Stop and Shop at the time of
the alleged assault. Compl. ¶ 1. Plaintiff is a member of, and is represented by, the United Food
and Commercial Workers International Union, Local 1262 (the “Union.”), which serves as the
exclusive bargaining agent for certain Stop and Shop employees. Not. of Removal ¶ 11. The
terms and conditions of Plaintiff’s employment are governed by a collective bargaining
agreement existing between the Union and Stop and Shop (the “Collective Bargaining
Agreement” or “CBA”). Id. at ¶ 12.
Plaintiff alleges that on September 3, 2016, he was physically battered and verbally
assaulted by one of his co-employees, Richard Goldman. Compl. at ¶ 2. Plaintiff avers that the
incident was captured on surveillance video, which depicts Goldman both striking Plaintiff in the
face several times and verbally assaulting Plaintiff. Id. at ¶ 3. Plaintiff further alleges that the
surveillance video is in the possession of Defendants Stop and Shop and Ahold. Id. at ¶ 3.
According to the Complaint, Plaintiff immediately reported the assault to his supervisor,
Barbara Bodnar, who, in turn, reported the assault to her supervisor, Scott Traeger. Id. at ¶ 4.
Plaintiff alleges that at the time of the alleged assault, Bodnar and Traeger were aware that
Goldman had prior “problems with other employees.” Id. at ¶ 5. Plaintiff further alleges that
following the assault, Defendants continued to employee Goldman at the same store as Plaintiff,
scheduling the two during overlapping hours. Id.

3

On November 17, 2016, Plaintiff filed his Complaint in the Superior Court of New
Jersey, Ocean County, Law Division, alleging various state law claims against Defendants.
Count One asserts that Defendants retaliated against Plaintiff for reporting the assault, in
violation of the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1
et seq., by reducing Plaintiff’s hours from five or six shifts per week to one shift per week,
failing to adequately investigate his report, refusing to produce surveillance video of the assault,
and verbally harassing Plaintiff about the assault. Compl. ¶¶ 6-12. Count Two asserts a claim
against Stop and Shop and Ahold for breach of the implied covenant of good faith and fair
dealing. Id. at ¶¶ 16-19. Count Three asserts a claim against Defendants for intentional and
negligent infliction of emotional distress. Id. at ¶¶ 20-22. Count Four asserts a claim for assault
and battery against Defendants Goldman, Stop and Shop, and Ahold. Id. at 23-24. Finally,
Count Five asserts a claim against Stop and Shop and Ahold for negligent supervision and
training of Goldman. Id. at ¶¶ 25-27.
Defendants removed the case to this Court on December 19, 2016, maintaining that
Counts One through Three of Plaintiff’s Complaint require interpretation of the CBA between
the Union and Stop and Shop, and thus, are preempted by the § 301 of the LMRA, which gives
rise to this Court's jurisdiction to adjudicate the instant dispute. On January 6, 2017, Defendants
filed a Partial Motion to Dismiss Plaintiff’s Complaint. ECF No. 6. On January 12, 2017,
Plaintiff filed a Motion to Remand the present action to state court. ECF No. 12. Both Motions
have been fully briefed. ECF Nos. 9, 11, 13.
DISCUSSION
I.

Motion to Remand
A.

Legal Standard
4

Because this Court’s jurisdiction is a threshold matter, I turn to the Motion to Remand
first. Remand is governed by 28 U.S.C. § 1447(c), which provides that removed cases must be
remanded if, “at any time before final judgment it appears that the district court lacks subject
matter jurisdiction” over the case. 28 U.S.C. § 1447(c). The removability of a matter is
determined from the plaintiff's pleadings at the time of removal. See Am. Fire & Cas. Co. v.
Finn, 341 U.S. 6, 14 (1951). When the propriety of removal is challenged, the party asserting
federal jurisdiction bears the burden of showing that removal is proper. See Frederico v. Home
Depot, 507 F.3d 188, 193 (3d Cir. 2007). “Because lack of jurisdiction would make any decree
in the case void and the continuation of the litigation in federal court futile, the removal statute
should be strictly construed and all doubts should be resolved in favor of remand.” Abels v. State
Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985).
In its Notice of Removal, Defendants argue that the Court has federal question
jurisdiction under 28 U.S.C. § 1331. Pursuant to § 1331, district courts have federal question
jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Accordingly, in order to assess Plaintiff’s Motion to Remand, the
Court must determine whether Defendants have met their burden of establishing the existence of
federal question jurisdiction.
B.

Federal Preemption Under the LMRA

On this Motion to Remand, the Court must decide whether § 301 LMRA mandates
federal preemption of state claims brought by Plaintiff, a collective bargaining unit member.
Defendants contend that Plaintiff’s CEPA claim, as well as his claims for breach of the implied
covenant of good faith and fair dealing and intentional or negligent infliction of emotional
distress, require interpretation of the CBA, and thus, are preempted by § 301. The Court agrees
5

that the breach of the implied covenant of good faith and fair dealing claim is preempted by §
301, but disagrees as to the other claims.
The existence of federal question jurisdiction in removal cases is governed by the “wellpleaded complaint rule.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). “Ordinarily,
under the well-pleaded complaint rule, in order to be removable, federal jurisdiction must be
pleaded in a plaintiff's complaint.” Johnson v. NBC Universal, Inc., 409 F. App'x 529, 531 (3d
Cir. 2010). Thus, courts generally examine “the ‘well pleaded’ allegations of the complaint and
ignore potential defenses.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6 (2003); see
Caterpillar, 482 U.S. at 393 (“[A] case may not be removed to federal court on the basis of a
federal defense . . . .”).
However, the Supreme Court has held that the doctrine of complete preemption creates
an exception to the well-pleaded complaint rule. Aetna Health Inc. v. Davila, 542 U.S. 200, 207
(2004). “As a ‘corollary of the well-pleaded complaint rule,’ complete pre-emption recognizes
‘that Congress may so completely pre-empt a particular area that any civil complaint raising this
select group of claims is necessarily federal in character.’” Pascack Valley Hosp. v. Local 464A
UFCW Welfare Reimbursement Plan, 388 F.3d 393, 399 (3d Cir. 2004) (quoting Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 63-64 (1987)). Thus, “[o]nce an area of state law has been
completely pre-empted, any claim purportedly based on that pre-empted state law is considered,
from its inception, a federal claim, and therefore arises under federal law.” Caterpillar, 482 U.S.
at 393; see Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S.
California, 463 U.S. 1, 24 (1983) (“[I]f a federal cause of action completely preempts a state
cause of action any complaint that comes within the scope of the federal cause of action
necessarily ‘arises under’ federal law.”).
6

It is well-settled that § 301 of the LMRA is subject to the complete preemption doctrine.
See Johnson, 409 F. App'x at 531. Section 301 provides as follows:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this chapter, or
between any such labor organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.
29 U.S.C. § 185(a). In its application, § 301 “provides for federal jurisdiction over disputes
regarding collective bargaining agreements, and mandates the application of uniform federal law
to resolve such disputes.” Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir.
1995). In other words, “[w]hen a suit stating a claim under section 301 is brought, state contract
law is displaced, and the collective agreement is interpreted under this federal common law.”
Berda v. CBS Inc., 881 F.2d 20, 22 (3d Cir. 1989). The Supreme Court has construed the
preemptive force of § 301 as being so powerful that it “not only pre-empt[s] state law but also
authorize[es] removal of actions that [seek] relief only under state law.” Anderson, 539 U.S. at
6–7. Indeed, the Court has explained the preemptive force of § 301 as follows:
The Court of Appeals held, and we affirmed, that the petitioner's action ‘arose under’ §
301, and thus could be removed to federal court, although the petitioner had undoubtedly
pleaded an adequate claim for relief under the state law of contracts and had sought a
remedy available only under state law. The necessary ground of decision was that the
preemptive force of § 301 is so powerful as to displace entirely any state cause of action
‘for violation of contracts between an employer and a labor organization.’ Any such suit
is purely a creature of federal law, notwithstanding the fact that state law would provide a
cause of action in the absence of § 301. Avco stands for the proposition that if a federal
cause of action completely preempts a state cause of action any complaint that comes
within the scope of the federal cause of action necessarily ‘arises under’ federal law.
Franchise Tax Bd. of State of Cal., 463 U.S. at 23–24.
The boundaries of § 301 preemption have been addressed at length, both in the
jurisprudence of the Supreme Court and within the Third Circuit. The Supreme Court first
analyzed the preemptive effect of § 301 in Local 174, Teamsters, Chauffeurs, Warehousemen &
7

Helpers of Am. v. Lucas Flour Co., 369 U.S. 95 (1962). In Lucas Flour, the Court held that “the
dimensions of § 301 require the conclusion that substantive principles of federal labor law must
be paramount in the area covered by the statute.” Id. at 103. In finding that claims implicating §
301 must be interpreted under uniform federal law, the Court explained:
[T]he subject matter of s 301(a) ‘is peculiarly one that calls for uniform law.’ The
possibility that individual contract terms might have different meanings under state and
federal law would inevitably exert a disruptive influence upon both the negotiation and
administration of collective agreements. Because neither party could be certain of the
rights which it had obtained or conceded, the process of negotiating an agreement would
be made immeasurably more difficult by the necessity of trying to formulate contract
provisions in such a way as to contain the same meaning under two or more systems of
law which might someday be invoked in enforcing the contract.
Id. (internal citations omitted). Put differently, § 301 mandates “resort to federal rules of law in
order to ensure uniform interpretation of collective-bargaining agreements, and thus to promote
the peaceable, consistent resolution of labor-management disputes.” Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 404 (1988).
In Allis–Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), the Supreme Court extended the
reach of § 301 preemption beyond suits alleging contract violations to suits alleging liability in
tort. Id. at 211. In that case, the plaintiff brought a state tort claim against his employer for the
bad-faith processing of an insurance claim. In holding that § 301 extends to certain tort claims,
the Court reasoned that “[a]ny other result would elevate form over substance and allow parties
to evade the requirements of § 301 by relabeling their contract claims as claims for tortious
breach of contract.” Id. at 211. Therefore, the Court adopted the following standard for
determining whether a state law claim is completely preempted by § 301: “When resolution of a
state-law claim is substantially dependent upon analysis of the terms of an agreement made
between the parties in a labor contract, that claim must either be treated as a § 301 claim or
dismissed as pre-empted by federal labor-contract law.” Id. at 220 (citation omitted) (emphasis
8

added). Applying that rule, the Court concluded that the plaintiff’s cause of action was
completely preempted by § 301, because “the duties imposed and rights established through the
state tort . . . derive from the rights and obligations established by the [collective-bargaining]
contract,” and resolution of the dispute would therefore “inevitably . . . involve contract
interpretation.” Id. at 217–18.
However, the Supreme Court has clarified that “not every dispute concerning
employment, or tangentially involving a provision of a collective-bargaining agreement, is preempted by § 301 or other provisions of the federal labor law.” Lueck, 471 U.S. at 211. To that
end, the Court noted that “it would be inconsistent with congressional intent under [§ 301] to
pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a
labor contract.” Id. at 212. Thus, to determine whether § 301 preemption applies, the Lueck
Court directed courts to focus on whether the plaintiff’s cause of action asserts “nonnegotiable
state-law rights on employers or employees independent of any right established by contract, or,
instead, whether evaluation of the [state] claim is inextricably intertwined with consideration of
the terms of the labor contract.” Id. at 213 (emphasis added).
The Supreme Court next considered § 301 preemption in Caterpillar, where it considered
whether employees, who were covered under a collective bargaining agreement, were preempted
under § 301 from bringing state law claims for breach of individual oral contracts made with
their employer prior to the collective bargaining agreement. 482 U.S. at 388. After reiterating
that § 301 “governs claims founded directly on rights created by collective-bargaining
agreements, and also claims substantially dependent on analysis of a collective bargaining
agreement,” the Supreme Court held that the employees' state law claims for breach of their

9

individual employment contracts were not preempted. Id. at 394 (internal quotation marks
omitted). Specifically, the Court reasoned:
Section 301 says nothing about the content or validity of individual employment
contracts. It is true that respondents, bargaining unit members at the time of the plant
closing, possessed substantial rights under the collective agreement, and could have
brought suit under § 301. As masters of the complaint, however, they chose not to do so.
Moreover, . . . respondents' complaint is not substantially dependent upon interpretation
of the collective-bargaining agreement. It does not rely upon the collective agreement
indirectly, nor does it address the relationship between the individual contracts and the
collective agreement.
Id. at 394–95. The Third Circuit has interpreted Caterpillar as standing for the proposition that
“employees have the option of vindicating their interests by means of either a section 301 action
or an action brought under state law, as long as the state-law action as pleaded does not require
interpretation of the collective bargaining agreement.” Voilas v. Gen. Motors Corp., 170 F.3d
367, 373-74 (3d Cir. 1999) (citing Caterpillar, 482 U.S. at 394–95).
The Supreme Court further elucidated the principles governing § 301 preemption in
Lingle, where it considered whether § 301 preempted an employee's state law retaliatory
discharge claim against her employer. Although the employee was subject to a collective
bargaining agreement in that case, which provided a contractual remedy for discharge without
cause, the Court found that § 301 preemption did not apply. 486 U.S. at 407. The Court focused
first upon the elements of a retaliatory discharge claim under the relevant state law – (1)
discharge or a threat of discharge; and (2) a motive to deter the employee from exercising her
rights – and found that neither of those elements required the Court to interpret any term of the
collective bargaining agreement. Id. at 407. Rather, the Court found that each of those elements
raised “purely factual questions pertain[ing] to the conduct of the employee and the conduct and
motivation of the employer.” Id. at 407. Thus, the Court held that the employee's state law
10

claim was “independent” of the relevant collective-bargaining agreement for purposes of § 301
because “resolution of the state-law claim did not require construing the collective bargaining
agreement.” Id.
In so holding, the Lingle Court noted that although the employee’s state law claims
“might well involve attention to the same factual considerations as the contractual determination
of whether Lingle was fired for just cause” under the collective bargaining agreement, “such
parallelism” did not render the “state-law analysis dependent upon the contractual analysis.” Id.
at 408. Specifically, the Court reasoned:
301 pre-emption merely ensures that federal law will be the basis for interpreting
collective-bargaining agreements, and says nothing about the substantive rights a State
may provide to workers when adjudication of those rights does not depend upon the
interpretation of such agreements. In other words, even if dispute resolution pursuant to a
collective-bargaining agreement, on the one hand, and state law, on the other, would
require addressing precisely the same set of facts, as long as the state-law claim can be
resolved without interpreting the agreement itself, the claim is “independent” of the
agreement for § 301 pre-emption purposes.
Id. 409–10.
The Supreme Court also addressed § 301 preemption in Livadas v. Bradshaw, 512 U.S.
107 (1994), where it considered whether § 301 preempted the plaintiff's state law claim to
recover statutory penalties arising from her former employer's late payment of wages. In
summarizing its prior jurisprudence and the relevant standards governing § 301, the Court
explained that the reach of § 301’s preemptive force only extends so far as “to assure that the
purposes animating § 301 will be frustrated neither by state laws purporting to determine
questions relating to what the parties to a labor agreement agreed, and what legal consequences
were intended to flow from breaches of that agreement, nor by parties' efforts to renege on their
arbitration promises by ‘relabeling’ as tort suits actions simply alleging breaches of duties

11

assumed in collective-bargaining agreements.” Id. at 122-23 (internal quotations and citations
omitted). Indeed, the Court emphasized the following limitations regarding § 301:
In Lueck and in Lingle . . . we underscored the point that § 301 cannot be read broadly to
pre-empt nonnegotiable rights conferred on individual employees as a matter of state law,
and we stressed that it is the legal character of a claim, as “independent” of rights under
the collective-bargaining agreement (and not whether a grievance arising from “precisely
the same set of facts” could be pursued) that decides whether a state cause of action may
go forward. Finally, we were clear that when the meaning of contract terms is not the
subject of dispute, the bare fact that a collective-bargaining agreement will be consulted
in the course of state-law litigation plainly does not require the claim to be extinguished.
Id. at 123-24 (internal citations and footnotes omitted).
Applying those principles, the Livadas Court held that § 301 did not preempt the
plaintiff’s state law claims, reasoning that “[t]he only issue raised by Livadas's claim, whether
Safeway ‘willfully fail[ed] to pay’ her wages promptly upon severance, was a question of state
law, entirely independent of any understanding embodied in the collective-bargaining agreement
between the union and the employer.” Id. at 124-25 (internal citation omitted). In explaining
that the plaintiff’s claims did not substantially depend on an interpretation of the collective
bargaining agreement at issue, the Court noted that there was no dispute in that case over the
amount of the penalty to which the plaintiff was entitled. Id. at 125. Moreover, the Court
emphasized that the mere need to reference the collective bargaining agreement was insufficient
to find that the plaintiff’s state law claims were preempted by § 301. Id. (“Lingle makes plain in
so many words that when liability is governed by independent state law, the mere need to ‘look
to’ the collective-bargaining agreement for damages computation is no reason to hold the statelaw claim defeated by § 301.”).
In several decisions, the Third Circuit has extensively reviewed the Supreme Court's
jurisprudence regarding complete preemption of state law claims under § 301 of the LMRA.
See, e.g., Kline v. Sec. Guards, Inc., 386 F.3d 246, 251–54 (3d Cir. 2004); Voilas, 170 F.3d at
12

373–76; Trans Penn Wax Corp., 50 F.3d at 228–30; Berda, 881 F.2d at 22–25. Based on the
principles set forth by the Supreme Court, the Third Circuit has explained that “[o]nly state law
claims ‘inextricably intertwined with considerations of the terms of the labor contract’ are
preempted by [LMRA].” Malia v. RCA Corp., 794 F.2d 909, 912 (3d Cir. 1986). Stated another
way, § 301 “completely preempts a state cause of action only when the resolution of said action
is ‘substantially dependent upon analysis of the terms of an agreement made between the parties
in a labor contract.’” New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of
New Jersey, 760 F.3d 297, 305 (3d Cir. 2014) (quoting Lueck, 471 U.S. at 220) (emphasis
added). By contrast, “when resolution of the state law claim is ‘independent’ of a CBA and does
not require construing one, the state law claim is not preempted by § 301.” New Jersey
Carpenters, 760 F.3d at 305–06 (citation omitted). With this background, the Court turns to
Plaintiff’s individual claims for: (1) violation of CEPA; (2) breach of the implied covenant of
good faith and fair dealing; and (3) intentional or negligent infliction of emotional distress, to
determine whether the resolution of those claims substantially depends on the CBA.
1.

Count One – Retaliation Pursuant to CEPA

CEPA “is remedial legislation that protects an employee from employer retaliation in
cases where the employee ‘blows the whistle’ on illegal or unethical activity.” Reynolds v. TCM
Sweeping, Inc., 340 F. Supp. 2d 541, 545 (D.N.J. 2004) (citing Hernandez v. Montville Twp. Bd.
of Educ., 354 N.J. Super. 467, 808 A.2d 128 (2002)). To establish a cause of action under
CEPA, a plaintiff must demonstrate that:
(1) he or she reasonably believed that his or her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;
(2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3c;
(3) an adverse employment action was taken against him or her; and
13

(4) a causal connection exists between the whistle-blowing activity and the adverse
employment action.
Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003); see Lippman v. Ethicon, Inc., 222 N.J. 362, 380
(2015). Here, Plaintiff alleges that Defendants retaliated against him for reporting the alleged
assault by assigning him fewer work shifts, failing to adequately investigate his report, refusing
to produce surveillance video of the assault, and verbally harassing Plaintiff about the assault.
Compl. ¶¶ 6-12. The critical inquiry for the Court in determining whether Plaintiff’s CEPA
claim is preempted by § 301 is whether resolution of Plaintiff’s CEPA claim is substantially
dependent on an interpretation of the CBA, such that the claim can be characterized as
inextricably intertwined with the CBA. Upon examination of the elements of CEPA, the Court
finds that Plaintiff’s CEPA claim does not substantially depend on an interpretation of the CBA.
Guided by the decisions of the Supreme Court and the Third Circuit, various courts in
this District have held that CEPA claims are separate and distinct from the terms of labor
contracts, and thus, are not preempted by § 301. See, e.g., Manos v. United Food & Commercial
Workers Int'l Union, 9 F. Supp. 3d 473, 481 (D.N.J. 2014) (holding that the plaintiff’s CEPA
claim was not subject to complete preemption under § 301, because it required examination of
the factual circumstances of the parties’ conduct and motivations, rather than an interpretation of
the CBA); Reynolds, 340 F. Supp. 2d at 549 (“[T]his Court finds that Plaintiff's CEPA claim is
not preempted by § 301.”); Patterson v. Exxon Mobil Corp., 262 F. Supp. 2d 453, 461–62
(D.N.J. 2003) (“Resolution of plaintiff's CEPA claim in this case . . . is not substantially
dependent upon analysis of the terms of the CBA because plaintiff's claims stem from his
entitlement to rights under state law, not the collective bargaining agreement.”); see also Simoni
v. Diamond, No. 10-6798, 2017 WL 82470, at *6 (D.N.J. Jan. 9, 2017) (holding that § 301 did
14

not preempt the plaintiff’s CEPA claim, because “[i]n order to adjudicate the CEPA claim, one
must determine what happened between the parties, and their motivations as opposed to an
interpretation of the contract.”); Carluccio v. Parsons Inspection & Maint. Corp., No. 06-4354,
2007 WL 1231758, at *5 (D.N.J. Apr. 24, 2007) (finding that Plaintiff’s CEPA claim was
“independent of any collective bargaining agreement,” because it “primarily involve[d] the
examination of the parties’ actions and motivations, not the interpretation of a collective
bargaining agreement.”). Taken together, those cases make clear that, typically, where an
employee brings a CEPA claim against his employer, alleging retaliation for whistleblowing
activities, that claim requires a factual inquiry into the parties’ conduct and motivations, rather
than an interpretation of the labor contract at issue, and thus, complete preemption under § 301
of the LMRA does not apply. See Reynolds, 340 F. Supp. 2d at 548 (“CEPA claims . . . require a
factual inquiry in applying the four prong test.”). Defendants fail to identify any case holding
otherwise.
In Patterson, for example, an employee brought a CEPA claim against his employer,
alleging that the employer retaliated against him for reporting that the employer had passed over
a more qualified minority candidate in favor of a less qualified non-minority candidate. 262 F.
Supp. 2d at 456. The collective bargaining agreement at issue contained a clause indicating that
“awards to positions will be made on the basis of qualifications for the position.” Id. at 459. The
court held that § 301 did not preempt the plaintiff’s CEPA claim, because “[l]ike Lingle,
resolution of the elements of plaintiff's CEPA claim, for the most part, requires examination of
the actions of plaintiff and actions and motivations of defendants, and does not rely upon
interpretation of the CBA.” Id. at 458. In that regard, the court explained that while the first
prong of the plaintiff’s CEPA claim – whether the plaintiff reasonably believed his employer’s
15

conduct was violating a law – might require reference to the collective bargaining agreement, the
“CEPA claim as a whole is not reliant solely upon the CBA.” Id. at 459.
In so holding, the Patterson court rejected the defendants’ argument that “consideration
of plaintiff's allegations of adverse employment action taken against him requires interpretation
of the CBA because he alleges that defendants denied him a host of rights under the CBA.” Id.
In that regard, the court found that despite the defendants’ claim that the “qualifications” for
promotional advancement were defined in the collective bargaining agreement, they were neither
explained nor listed. See id. at 459. In fact, the court found that while the defendant had
developed an extensive procedure to address which employees within the unit were best
qualified to receive a promotion or job transfer to a more favorable position within that unit, that
procedure was not set forth in the collective bargaining agreement. Id.
Moreover, despite the fact that the agreement contained provisions defining how shifts
would be assigned, including clauses pertaining to “Seniority,” “Holidays,” “Overtime,” and
“Schedules,” the court found that the plaintiff’s claim that he was retaliated against by being
scheduled to work on holidays was not inextricably intertwined with the collective bargaining
agreement. See id. at 460-61. To that end, the court noted that “[a]lthough there may be
incidental reference to the CBA to determine what the ‘holidays’ are, such reference is only for
definitional purposes and the CBA does not supply a rule of decision.” Id. at 460. As such, the
court ultimately held the plaintiff’s CEPA claim was not preempted by § 301, “because a
violation of the CBA does not form the basis of Plaintiff's action nor is the Court called upon to
interpret the CBA in order to reach the merits of Plaintiff's claims.” Id. at 455.
Similarly, in Reynolds, a unionized employee brought a CEPA claim against his
employer, alleging that he was harassed, intimidated, and eventually fired for reporting that he
16

was not being paid the correct wage, in violation of both the Davis-Bacon Act and the collective
bargaining agreement at issue. The court noted that the “key inquiry” in determining whether the
employee’s claim was preempted by § 301 was “whether an examination of the complaint
requires a factual inquiry into the actions and motivations of the parties relative to rights
conferred by state law or relative to the rights of the parties under the collective bargaining
agreement.” Reynolds, 340 F. Supp. 2d at 546–47. Relying on Patterson, the court held that the
employee’s claim was not preempted by § 301, because it was “not inextricably intertwined with
the CBA.” Id. at 547. In that regard, the court reasoned that although the employee referenced
the collective bargaining agreement in articulating his claims, the “true essence” of his claim –
whether the employer in fact retaliated against him in violation of CEPA – did not require an
interpretation of that agreement. Id. at 548. Rather, resolution of Plaintiff’s claims required a
factual inquiry in to the motivations of the parties relevant to the rights under CEPA.
Here, as in Patterson and Reynolds, I find that resolution of Plaintiff’s CEPA claim will
primarily involve factual questions pertaining to the actions and motivations of Defendants,
rather than an interpretation of the CBA. With regard to the first factor, whether or not Plaintiff
reasonably believed Defendants’ conduct was violating a rule or law, Defendants argue that
Plaintiff’s claims implicate Articles 5, 7, 13, and 14 of the CBA, entitled “Regular Work Week
and Maximum Hours,” “Wage Clause,” “Seniority,” and “Grievance Procedure and Arbitration,”
respectively. At the outset, the Court notes that Defendants fail to identify any specific clause
within those provisions that must be interpreted in order to resolve Plaintiff’s claim. 4 Nor, as

4

The Third Circuit has explained that “[a] finding of § 301 preemption is not mandated simply
by the contention that [a plaintiff’s] state law claims ‘necessarily implicate’ the CBA.” Kline,
386 F.3d at 256. Rather, the Circuit has adopted the following standard, set forth in Cramer v.
Consolidated Freightways Inc., 255 F.3d 683 (9th Cir. 2001), for determining whether a
17

explained below, can I, in conducting my own review of the CBA, find that resolution of
Plaintiff’s CEPA claim substantially depends on an interpretation of the provisions cited by
Defendants.
While the Court acknowledges that, as in Patterson and Reynolds, the first element of
CEPA may implicate the provisions of the CBA dealing with shift assignment and reduction of
hours generally, the Supreme Court has explained that mere reference to the CBA does not
render a plaintiff’s claims substantially dependent on, or inextricably intertwined with, the CBA.
See Livadas, 512 U.S. at 124. Here, given the nature of Plaintiff’s CEPA claim as it relates to
the CBA, the Court finds that Defendants’ preemption argument fails as a matter of law. First,
Article 5 of the CBA, pertaining to shift assignments, merely sets forth the work week and
maximum hours for full-time and part-time employees. While Plaintiff alleges that Defendants
reduced his work shifts as a result of Plaintiff’s whistleblowing, Plaintiff does not allege that
Defendants violated the CBA in doing so. Rather, the principle issue in resolving Plaintiff’s
retaliation claim is the motivation of Defendants; i.e., whether Defendants reduced Plaintiff’s
shifts in retaliation for his reporting of the assault. While a court may reference the CBA, insofar

defendant has met his or her burden of demonstrating that a state law claim is inextricably
intertwined with a labor contract:
[A]lleging a hypothetical connection between the [state law] claim and the terms of the
CBA is not enough to preempt the claim: adjudication of the claim must require
interpretation of a provision of the CBA. A creative linkage between the subject matter of
the claim and the wording of a CBA provision is insufficient; rather, the proffered
interpretation argument must reach a reasonable level of credibility. Cf. Livadas, 512
U.S. at 124–25. The argument does not become credible simply because the court may
have to consult the CBA to evaluate it; “look[ing] to” the CBA merely to discern that
none of its terms is reasonably in dispute does not require preemption. Id. at 125.
Kline, 386 F.3d at 256–57 (quoting Cramer, 255 F.3d at 691).
18

as it sheds light on whether Defendants in fact reduced Plaintiff’s shifts, resolution of Plaintiff’s
claim does not substantially depend on an interpretation of that provision.
Similarly, the Court need not interpret either Article 7 or Article 13 to resolve Plaintiff’s
CEPA claim. Defendants maintain that Articles 7 and 13 govern when the hours of part-time
employees, including Plaintiff, may be reduced. Article 7 governs the wage scale to which fulltime and part-time employees are entitled. The only clause that this Court can discern in Article
7 that relates to reduction of work for part-time employees, such as Plaintiff, provides that “no
employee shall suffer a reduction in the employee’s earnings as a result of any of the provisions
of this Agreement, nor shall part-time employees’ hours of work be reduced as a result of this
Agreement except for economic reasons such as a reduction in business.” Certification of
Heather Weine Brochin (“Brochin Cert.”) Ex. 2, at 24. Article 13 provides that, where there is a
reduction of hours, “[n]o employee shall have hours reduced until there has been a reduction of
hours among less senior employees,” and states that part-time employees are entitled to notice
prior to the reduction. Id. at 26-27. No interpretation of these provisions is necessary for the
purpose of assessing Plaintiff’s CEPA claim.
To the extent Plaintiff’s claims for shift reduction may require references to, or
considerations of, Articles 7 and 13, mere reference to the CBA does not render Plaintiff’s claim
“inextricably intertwined” with the CBA. 5 see Lueck, 471 U.S. at 211 (“[N]ot every dispute

5

Indeed, if mere reference to the CBA were sufficient to trigger § 301 preemption, all claims for
unlawful retaliation brought by unionized employees would be preempted, because the starting
point for every case would be the labor agreement. While the line between “reference to” and
“interpretation of” a labor agreement may be hazy, see Cramer, 255 F.3d at 691 (“The
demarcation between preempted claims and those that survive § 301's reach is not, however, a
line that lends itself to analytical precision.”), merely referencing a labor contract does not
implicate the national interest in uniform interpretation of labor contracts that underlies § 301
preemption. See Lucas Flour, 369 U.S. at 103. Here, resolution of Plaintiff’s claim for
19

concerning employment, or tangentially involving a provision of a collective-bargaining
agreement, is pre-empted by § 301 or other provisions of the federal labor law.”). In that regard,
while Articles 7 and 13 relate broadly to a reduction in hours, the Court is unable to discern any
rule of decision governing when Defendants may reduce an employee’s hours. Stated another
way, while the CBA may define how a reduction in hours can occur, it appears that when such a
reduction can occur is left to the discretion of Defendants; e.g., nowhere does the CBA define
what constitutes “economic reasons such as a reduction in business.” Moreover, Plaintiff does
not challenge the meaning of the provisions of the CBA relating to reduction of hours, or
otherwise allege that Defendants violated the CBA’s protocol for shift reductions. 6 Rather,
Plaintiff’s state law claim for retaliation focuses primarily on Defendants’ motivation for
reducing his shifts, a question that requires minimal consultation of the CBA. See Livadas, 512
U.S. at 124 (“[W]hen the meaning of contract terms is not the subject of dispute, the bare fact
that a collective-bargaining agreement will be consulted in the course of state-law litigation
plainly does not require the claim to be extinguished.”). Those factual questions may be
resolved without interpreting the CBA.
Moreover, Plaintiff’s claim for unlawful retaliation is not based solely on a reduction in
shifts. Rather, Plaintiff also alleges that Defendants refused to produce surveillance video of the
assault, and verbally harassed Plaintiff following the assault. Those claims involve purely
factual questions concerning Defendants’ conduct and motivations, without need to reference the
CBA.

retaliation under state law would not undermine the policy of resolving labor disputes uniformly
under federal law.
6
Plaintiff does not allege, for example, that Defendants violated the seniority provision in the
CBA by reducing his hours without first reducing the hours of a junior employee.
20

Furthermore, Plaintiff’s CEPA claim does not implicate the grievance and arbitration
procedure contained in Article 14 of the CBA. Article 14 provides, in pertinent part, that “[a]ll
disputes, differences or grievances as to the interpretation or application of the provisions of this
agreement shall be settled” in the manner set forth in that provision. Brochin Cert. Ex. 2, at 28
(emphasis added). Here, as discussed above, Plaintiff’s allegation that Defendants retaliated
against him by reducing his shifts is grounded in state law, rather than the provisions of the
CBA. Moreover, with respect to Plaintiff’s claim that Defendants failed to properly investigate
his report, the CBA is devoid of any reference to the procedure that Defendants must follow in
the event of a whistleblower claim, and thus, Plaintiff’s claim need not be brought through the
grievance and arbitration process. See Manos, 9 F. Supp. 3d at 481 (finding that the plaintiff’s
CEPA claim was not preempted by § 301, where his “right to relief as a whistleblower . . . does
not concern an inquiry into the terms of the CBA, which is devoid of provisions regarding
whistleblowers and retaliation protection.”). In that regard, Plaintiff does not allege in his CEPA
claim that Defendants failed to adhere to a provision in the CBA dealing with an employee’s
complaint of misconduct by another employee. Additionally, even assuming Plaintiff could have
obtained some relief through the grievance process, “that alone is not conclusive evidence of
preemption,” because “CEPA grants rights independent of the CBA, and the remedies which
might be obtained in a successful grievance under a CBA are not necessarily the same as those
available under a successful [CEPA] claim.” Reynolds, 340 F. Supp. 2d at 548. Accordingly,
the first prong of Plaintiff’s CEPA claim does not substantially depend on an interpretation of the
CBA.
The second and third prongs of a CEPA claim require Plaintiff to demonstrate that he
performed a whistleblowing activity and that an adverse employment action was taken against
21

him. The Court’s analysis of these factors is not substantially dependent on an interpretation of
the CBA; the CBA does not define what constitutes a whistleblowing activity, and whether or
not an adverse employment action was taken against Plaintiff is a factual question concerning
Defendants’ conduct and motivations. Indeed, Plaintiff does not allege that Defendants’ actions
“were improper because they violated or conformed with the CBA.” Reynolds, 340 F. Supp. 2d
at 548–49. Thus, neither the second nor the third prong of Plaintiff’s CEPA claim hinges upon
an interpretation of the CBA.
Finally, the fourth prong of Plaintiff’s CEPA claim requires him to demonstrate a causal
connection between the whistleblowing activity and the adverse employment action. As with the
other prongs, the Court’s examination of the fourth prong will focus primarily on the parties’
conduct and motivations. In that regard, the Court will analyze Plaintiff’s reporting of the
alleged assault, Defendants’ response to that report, and whether or not that response can be
deemed retaliatory. The CBA will not be implicated in making those determinations.
In sum, resolution of Plaintiff’s CEPA claim turns on the factual events that transpired
between Plaintiff and Defendants (i.e., Defendants’ motivation for reducing Plaintiff’s shifts,
responding to the report, failing to produce the surveillance video, and verbally harassing
Plaintiff), rather than any specific provision in the CBA. Plaintiff has not directly alleged a
violation of the CBA and it does not appear, from the face of Plaintiff’s Complaint, that his
claims are founded upon rights contained in the CBA; rather, in alleging that Defendants
retaliated against him for whistleblowing, Plaintiff asserts claims grounded in his substantive
rights under state law. Thus, in resolving Plaintiff’s CEPA claim, the Court is tasked only with
determining whether Defendants retaliated against Plaintiff for reporting the alleged assault, not
with whether Defendants violated the CBA. That the Court may consult the CBA in resolving
22

those issues is inapposite. Because Plaintiff’s does not challenge the meaning of terms contained
in the CBA, or otherwise raise a labor dispute, analysis of Plaintiff’s claims under state law
would not disrupt the policy of having labor disputes interpreted uniformly under federal law.
Accordingly, the Court finds that Plaintiff’s CEPA claim is not “inextricably intertwined” with
the CBA, and thus, is not preempted by § 301 of the LMRA.
2.

Count Two – Breach of the Implied Covenant of Good Faith and Fair
Dealing

Count Two of the Complaint asserts a state law claim for breach of the implied covenant
of good faith and fair dealing. Specifically, the Complaint alleges that Defendants Stop and
Shop and Ahold were “bound to operate in good faith and fairly deal with their employees,” yet
breached that contractual duty “when they wrongfully failed to investigate the accident, provide
surveillance film depicting plaintiff’s assault, . . . reduced his hours . . . [and] failed to discipline .
. . Goldman.” Compl. ¶¶ 17-18. “A covenant of good faith and fair dealing is implied in every
contract in New Jersey.” Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001). That is,
every contract in New Jersey contains an implied covenant that “neither party shall do anything
which will have the effect of destroying or injuring the right of the other party to receive the
fruits of the contract.” Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 130 (1965) (citation
omitted). In this case, Defendants argue that because the only contract in existence between
Plaintiff and Defendants is the CBA, the CBA must be interpreted to resolve Plaintiff’s implied
covenant claim, and thus, that claim is preempted by § 301 of the LMRA. The Court agrees.
First, while Plaintiff, in his Opposition to Defendants’ Partial Motion to Dismiss,
voluntarily withdrew his claim for breach of the implied covenant of good faith and fair dealing,
asserted in Count Two, that does not resolve the issue of whether this case was properly
removed, and thus, whether this Court has jurisdiction. Federal jurisdiction for the purposes of
23

removal is determined by looking to the complaint at the time of removal, and is not based upon
some subsequent act. Granovsky v. Pfizer, Inc., 631 F. Supp. 2d 554, 559 (D.N.J. 2009) (In
“[r]uling on whether an action should be remanded to the state court from which it was removed,
a district court must focus on the plaintiff's complaint at the time the petition for removal was
filed.”). Therefore, I must still determine whether Count Two provides a basis for federal
jurisdiction.
Here, Plaintiff has failed to identify any contract other than the CBA from which his
implied covenant claim derives. Because the right asserted by Plaintiff “not only derives from
the [CBA], but is defined by the contractual obligation of good faith, any attempt to assess
liability here inevitably will involve contract interpretation.” Lueck, 471 U.S. at 218. In other
words, Plaintiff’s express reliance upon the CBA to assert his claim for breach of the implied
covenant of good faith and fair dealing requires this Court analyze Plaintiff’s contractual
obligations with Defendants under that labor contract. See Manos, 9 F. Supp. 3d at 480 (holding
that the plaintiff’s claim for breach of the implied covenant of good faith was preempted by §
301, where the plaintiff’s reliance on the parties’ collective bargaining agreement “require[d] a
court to inquire into the terms of the CBA regarding the Defendants' contractual obligations with
Plaintiff.”). Thus, Plaintiff’s implied covenant claim is inextricably intertwined with the CBA,
mandating preemption under § 301, granting this Court subject matter jurisdiction of the
Complaint, and making removal proper.
3.

Count Three – Intentional or Negligent Infliction of Emotional Distress

24

Defendants also maintain that resolution of Plaintiff’s claims for intentional or negligent
infliction of emotional distress require an analysis of the CBA. 7 I disagree.
To prevail on a claim for intentional infliction of emotional distress under New Jersey
law, a plaintiff must prove that: (1) the defendant acted “intentionally or recklessly”; (2) the
defendant’s conduct was “extreme and outrageous”; (3) the defendant’s conduct was “proximate
cause of plaintiff's emotional distress”; and (4) “the emotional distress suffered by plaintiff must
be so severe that no reasonable [person] could be expected to endure it.” Ingraham v. OrthoMcNeil Pharm., 422 N.J. Super. 12, 19–20 (App. Div. 2011) (quoting Buckley v. Trenton Saving
Fund Soc., 111 N.J. 355, 366-67 (1988)) (internal quotation marks omitted). “The severity of the
emotional distress raises questions of both law and fact. Thus, the court decides whether as a
matter of law such emotional distress can be found, and the jury decides whether it has in fact
been proved.” Buckley, 111 N.J. at 367.
Comparatively, a plaintiff must show the following four elements to prevail on a claim
for negligent infliction of emotional distress under New Jersey law: “(1) the defendant's
negligence caused the death of, or serious physical injury to, another; (2) the plaintiff shared a
marital or intimate, familial relationship with the injured person; (3) the plaintiff had a sensory
and contemporaneous observation of the death or injury at the scene of the accident; and (4) the
plaintiff suffered severe emotional distress.” Jablonowska v. Suther, 195 N.J. 91, 103 (2008).
The Court cannot find that either Plaintiff’s claim for intentional infliction of emotional
distress or for negligent infliction of emotional distress substantially depends on an interpretation

7

Tellingly, Defendants’ argument that Count Three implicates the CBA is confined to a single
statement in the introduction to their Opposition to Plaintiff’s Motion to Remand, without any
further analysis of how resolution of Plaintiff’s claims for intentional or negligent infliction of
emotional distress would require interpretation of the CBA.
25

of the CBA. Rather, resolution of Plaintiff’s claims for emotional distress will focus on whether
Plaintiff suffered emotional distress as a result of Defendants’ alleged conduct in reducing
Plaintiff’s shifts, failing to adequately investigate his report, refusing to produce surveillance
video of the assault, and verbally harassing Plaintiff about the assault. As recognized above, that
inquiry raises factual questions regarding Defendants’ conduct and motivations, as well as
Plaintiff’s response, and thus, does not substantially depend on an interpretation of the CBA. See
Trans Penn Wax Corp., 50 F.3d at 232 (finding that the plaintiff’s intentional infliction of
emotional distress claim was not preempted by § 301, where that claim was contingent upon an
analysis of the defendant’s “conduct while inducing the employees to enter into the “Guarantee”
agreement and on the employees' response. This factual inquiry does not implicate any analysis
of terms or rights created by the collective bargaining agreement.”). Accordingly, Plaintiff’s
claims for intentional and negligent infliction of emotional distress do not implicate the CBA,
and therefore, are not preempted by § 301.
In sum, the Court finds that while Count Two of the Complaint, asserting a claim for
breach of the implied covenant of good faith and fair dealing, is preempted by § 301, neither
Plaintiff’s CEPA claim nor his emotional distress claims, asserted in Counts One and Three,
respectively, substantially depend on an interpretation of the CBA. Nonetheless, because this
Court had original jurisdiction over Plaintiff’s implied covenant claim at the time of removal, I
find that removal was proper on the basis of that claim alone. Therefore, Plaintiff’s Motion to
Remand, based upon improper removal, is denied.
II.

Motion to Dismiss and Supplemental Jurisdiction
Defendants move to dismiss all Counts of the Complaint, with the exception of Count

Four as against individual Defendant Goldman. However, in light of the dismissal of Count Two
26

– the sole claim giving rise to this Court’s original jurisdiction over the instant matter – the Court
must determine whether it should exercise supplemental jurisdiction over Plaintiff’s remaining
claims prior to ruling on the Motion to Dismiss. See U.S. Express Lines Ltd. v. Higgins, 281
F.3d 383, 388-89 (3d Cir. 2002) (federal courts have a duty to “examine their subject matter
jurisdiction at all stages of the litigation sua sponte if the parties fail to raise the issue. That
obligation extends to removal cases, as well as to those originally filed in the district courts.”);
see also FED. R. CIV. P. 12(h)(3). For the following reasons, I decline to exercise supplemental
jurisdiction, and therefore, I need not reach the merits of Defendants’ Partial Motion to Dismiss
as it pertains to Plaintiff’s remaining state law claims.
“Supplemental jurisdiction allows federal courts to hear and decide state-law claims
along with federal-law claims when they are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy.” Wisconsin Dept. of
Corrections v. Schacht, 524 U.S. 381, 387 (1998) (citation and internal quotation marks
omitted). Under § 1367(c), “district courts may decline to exercise supplemental jurisdiction
over a claim under subsection . . . if . . . the district court has dismissed all claims over which it
has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In exercising its discretion, “the district court
should take into account generally accepted principles of ‘judicial economy, convenience, and
fairness to the litigants.’” Growth Horizons, Inc. v. Delaware Cty., Pa., 983 F.2d 1277, 1284 (3d
Cir. 1993) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
The Third Circuit has explained that, absent compelling circumstances, the court should
decline to exercise supplemental jurisdiction where the claim over which the district court has
original jurisdiction has been dismissed prior to trial. See Hedges v. Musco, 204 F.3d 109, 123
(3d Cir. 2000); Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). Thus,
27

where the federal claims are dismissed at an early stage in the litigation, courts generally decline
to exercise supplemental jurisdiction over state claims. United Mine Workers, 383 U.S. at 726;
Growth Horizons, Inc., 983 F.2d at 1284–1285.
Here, Plaintiff having withdrawn the sole federal claim, and this Court accordingly
dismissing that claim, I decline to exercise supplemental jurisdiction, particularly since this case
is in its infancy. See, e.g., Monk v. New Jersey, No. 14–1399, 2014 WL 4931309, at *3 (D.N.J.
Oct. 2, 2014) (“Where a case has been removed from state court to federal court on the basis of
federal question jurisdiction, the United States Supreme Court has recognized that a district court
retains the discretion to remand that matter back to state court when all federal law claims have
been dropped or dismissed from the action and only pendant state law claims remain.”).
Accordingly, Defendants' Partial Motion to Dismiss Plaintiff's state law claims – with the
exception of the claims asserted in Counts Two and Six – is denied without prejudice, and this
matter is remanded to state court, where Defendants may raise any remaining issues. 8
CONCLUSION
For the foregoing reasons, the Court finds that Count Two, the breach of the implied
covenant of good faith and fair dealing claim, is preempted by § 301 of the LMRA, and
therefore, removal of this action was proper and Plaintiff’s Motion to Remand is DENIED on
that basis. Counts Two and Six of the Complaint are voluntarily dismissed, and, because the
Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims,

8

On remand, this Court’s legal analysis pertaining to federal preemption should not be construed
in any way as commenting upon or deciding the merits of Plaintiff's claims; instead, all claims
asserted in Plaintiff's Complaint – with the exception of Counts Two and Six – are remanded to
New Jersey Superior Court for further proceedings.
28

the Motion to Dismiss is DENIED without prejudice as to all other Counts. This case is
remanded to New Jersey Superior Court, Ocean County, Law Division for further proceedings.

Dated: August 22, 2017

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge

29