GALGANO v. TOWNSHIP OF OLD BRIDGE

Filing 10

MEMORANDUM AND ORDER denying Defendants' 6 Motion to Dismiss without prejudice. This matter is Remanded to State Court. Signed by Judge Peter G. Sheridan on 1/18/2018. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

VINCENT GALGANO,

Civil Action No.: 17-cv-772 (PGS)
Plaintiff,
MEMORANDUM AND
ORDER

v.
TOWNSHIP OF OLD BRIDGE,
Defendants.

SHERIDAN, U.S.D.J.
This matter is before the Court on Defendant Township of Old Bridge’s motion to dismiss.
(ECF No. 6). It was originally filed in state court and was removed to federal court on February
6, 2017 [ECF No. 1] based on original jurisdiction, provided by Plaintiff’s First Amendment
claims. On July 28, 2017, Defendant filed this motion to dismiss arguing that Plaintiff’s claims
must be resolved by arbitration pursuant to the Collective Bargain Agreement (CBA) between the
Township of Old Bridge and the Old Bridge Policemen’s Association, Local No. 127.
I.
On September 16, 2015, a letter from Councilman Brian Cahill was published in a local
newspaper. Cahill mentioned how the Mayor placed “priority on public safety” and described other
improvements to the police department. On October 7, 2015, mycentraljersey.com published a
letter to the editor written by Plaintiff titled “Cahill misrepresenting Old Bridge Police
Department” in which he responded and countered statements Cahill made in his September 16th
letter to the editor. As a result of the letter, on October 8, 2015, Defendant initiated an Internal
Affairs Investigation regarding Plaintiff’s October 7th letter published on mycentraljersey.com.

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Defendants initiated the investigation after receiving a complaint from the Township’s business
administrator, Christopher Marion.
II.
Plaintiff Galgano, a police officer, claims that Defendants advised him on October 8, 2015,
that a complaint had been filed against him and an investigation had been commenced to
determine, by way of his conduct, that Galgano violated four of the Defendant’s Rules and
Regulations: 3:1.40 On-Line Social Network/Personal Webpage; 3:1.37 Use of Position; 3:1.16
Criticism of Official Acts or Orders; 3:6.11 Public Statements. Pursuant to the CBA, the Township
has the right to discipline employees for “just cause.” (See Def. Br. Ex. B.) Accordingly, on July
20, 2016, and August 28, 2016, two disciplinary hearings were held. Following the hearings, on
December 5, 2016, Hearing Officer Edward Florio issued a decision upholding Defendant’s
decision to deduct three (3) sick days from Plaintiff’s sick time bank. (Id. Ex. F).
Galgano appealed that decision by filing an action in lieu of prerogative writ in the
Superior Court of New Jersey pursuant to N.J.S.A. 40A:14-150. The Complaint alleged that
Hearing Officer Florio erred because he failed to consider Plaintiff’s first amendment and due
process rights. Plaintiff sought dismissal of the administrative charges and to award equitable,
punitive, and compensatory damages on all lost wages.
Defendant removed the case. The removal was solely based on Plaintiff’s assertion of
First Amendment rights. In response to Defendant’s motion to dismiss and compel arbitration,
Plaintiff argued (but did not file a motion) that the case should be remanded because he was not
setting forth a claim for violation of his First Amendment and due process rights under Section §
1983; rather, his claim was to dismiss the disciplinary charges, and his constitutional rights are a
defense. As a result, the Court sua sponte addresses whether the Court has subject matter

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jurisdiction. In filing the Complaint, Plaintiff sought a de novo hearing wherein a judge would
review the transcript before the hearing office and make findings of fact and conclusions of law.
At oral argument, Plaintiff’s counsel stated:
Your Honor, we’re using the First Amendment to defend these
charges, is that a claim is it defense, it is being used in the United
States Constitution first [.] First Amendment is being
used in this case to try and prevail on these charges. . . I don’t have
a statutory first amendment claim, I’m not asking for damages as a
result of – in terms of give him a million dollars for his emotional
distress, but I’m using the First Amendment to defend these charges.
Thank you. (T. 24:10-19).

Defense counsel partially agreed with Plaintiff’s counsel; but he interpreted the Complaint
differently. At oral argument he commented:
This isn’t something that I came up with in a vacuum, this was
conferenced before the magistrate, I only removed [this case] based
upon this First Amendment claim thinking that we’d be arguing a
First Amendment case; and then after discussions it was related all
plaintiff wants is a de novo review of his three day - - and it’s not
even a suspension, his docked three days from his sick leave. So the
net - - the issue was narrowed in front of Magistrate Bongiovanni,
and it was to file a motion to see whether the case is available to
arbitration, or should be in front of a judge.
(T 8:12-17).
III.
Initially, when a case is filed in state court, a defendant may remove any action over which the
federal courts have jurisdiction. 28 U.S.C. § 1441(a). "[D]istrict courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331. A case cannot be removed to Federal Court solely on the basis of a federal
defense. See Gateway 2000 v. Cyrix Corp., 942 F. Supp. 985, 990 (D.N.J. 1996); Taxi v. Aura
Transp., Inc., 2015 U.S. Dist. LEXIS 50746, *9 (Apr. 17, 2015).

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The party removing the action has the burden of establishing federal jurisdiction. Steel
Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). This burden is
heavy, since removal statutes are "strictly construed against removal and all doubts should be
resolved in favor of remand." Id.
“The presence or absence of federal-question jurisdiction is governed by the "well-pleaded
complaint rule," which provides that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff
the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state
law.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). "If at any time before final judgment
it appears that the district court lacks subject matter jurisdiction the case shall be remanded[]” to
state court. 28 U.S.C. § 1447(c).
Here, the sole reason for removal was the First Amendment. The underlying action is to
review and dismiss the disciplinary charges. The First Amendment rights are a defense rather than
a cause of action. Taxi v. Aura Transp., Inc., 2015 U.S. Dist. LEXIS 50746, *9 (Apr. 17, 2015).
As such, the Court has no subject matter jurisdiction over the case.
ORDER
This matter having come before the Court on Defendant, Township of Old Bridge’s motion
to dismiss (ECF No. 6); and the Court having carefully reviewed and taken into consideration the
submissions of the parties, as well as the arguments and exhibits therein presented, and for good
cause shown, and for all of the foregoing reasons,

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IT IS on this 18th day of January, 2018
ORDERED that Defendants’ Motion to Dismiss (ECF No. 6) is denied without prejudice;
and it is further
ORDERED that this matter be remanded to state court.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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