Opinion
Civil Action No. 98-4740(JWB)
December 16, 1998
KENNEY SCHAER MARTIN, By: Nancy S. Martin, Esquire, for Plaintiff.
STANTON, HUGHES, DIANA, SALSBERG, CERRA MARIANI, By: Richard C. Mariani, Esquire, for Defendants, New Jersey Natural Gas and James Hallack.
O P I N I O N
This matter comes before the Court on plaintiff Debra Ward's motion to remand this case to the Superior Court of New Jersey, Law Division, Monmouth County. Plaintiff commenced this action against defendants New Jersey Natural Gas Co. ("New Jersey Natural Gas"), James Hallack, John and Jane Doe Entities/Corporations (1-100), and John and Jane Does (1-100) on July 14, 1998 in the Superior Court. Her Complaint asserted two claims for violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq. (Counts One and Two), and a claim for violation of New Jersey public policy (Count Three).
In the Superior Court, New Jersey Natural Gas moved to dismiss Count Three or, in the alternative, for a more definite statement. The Superior Court granted its motion for a more definite statement on September 25, 1998. In response, on October 5, 1998, plaintiff served a First Amended Complaint on New Jersey Natural Gas. New Jersey Natural Gas removed this action to this Court on October 25, 1998. Plaintiff filed its motion to remand on October 20, 1998.
Defendant New Jersey Natural Gas alleges that the Court has jurisdiction over this action under 28 U.S.C. § 1331 and 1367.
BACKGROUND
The Court need not dwell on the facts underlying this action in order to adjudicate this motion. Briefly, plaintiff claims that she was terminated from her employment because of a disability, that she was denied reasonable accommodations for her disability, and that she was denied leave in violation of New Jersey public policy as expressed in the federal Family Medical Leave Act ("FMLA"), 29 U.S.C. §, 2601 et seq. Defendant New Jersey Natural Gas is plaintiff's former employer, and defendant James Hallack is her former supervisor. The John and Jane Doe defendants are other corporations, entities, and individuals that she asserts are also responsible for the illegal actions described above. (See Compl., and First Am. Compl.).
This motion turns on the particular allegations in Count Three of plaintiff's Complaint and First Amended Complaint. Defendant contends that this case is properly removed here because: (1) Count Three of the First Amended Complaint alleges a claim under the federal FMLA, and (2) Count Three of the First Amended Complaint is the paper that first gave defendant notice that the case could be removed to federal court. Plaintiff disagrees.
Accordingly, the Court must examine the particular allegations in the Complaint and the First Amended Complaint.
Count Three of the Complaint states:
COUNT THREE
(Violation of the Public Policy of New Jersey)
27. Plaintiff repeats and realleges each and every allegation set forth above as if recounted at length herein.
28. During the course of plaintiff's employment, she was forced to miss work due to her medical condition.
29. At all times when it was necessary for plaintiff to miss work because of her medical needs, she notified defendants accordingly.
30. Defendants penalized plaintiff for these absences by suspending her on various occasions and then by terminating her employment.
31. The federal Family Medical Leave Act, 29 U.S.C. § 2601, et seq. provides that employees may take leave for their own serious health condition. This leave can be taken during any 12-month period for a total of 12 weeks or it can be taken intermittently or it can be taken on a reduced leave schedule.
32. The source of public policy of New Jersey includes legislation; administrative rules, regulations or decisions; and judicial decisions and therefore would include the regulations associated with the federal Family Medical leave Act.
33. During the course of plaintiff's employment, plaintiff was not permitted to take intermittent leave as permitted under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq., and was punished for use of this leave.
34. As a direct result of defendants' actions, including the actions of the John Jane Doe Entities/Corporations and the John and Jane Does, plaintiff has been harmed.
(First Am. Compl., Count Three).
ANALYSIS
I. Standard
Plaintiff moves to remand this action to the Superior Court pursuant to 28 U.S.C. § 1447(c). That provision establishes in relevant part:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
(Id.) Defects in removal procedure and lack of subject matter jurisdiction both constitute grounds for remanding a matter to state court. See Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1215 (3d Cir.),cert. denied, 502 U.S. 908 (1991).
II. Application
Here, plaintiff argues that the case should be remanded on both procedural and jurisdictional grounds. She argues that the removal procedure was defective, since defendant failed to remove this action within 30 days of receiving the initial pleading or paper which showed that the action was removable. In addition, she argues that the Court lacks subject matter jurisdiction over this case. She has filed her motion to remand within the 30-day period required for the case to be remanded on procedural grounds.
A. Defective Removal Procedure
Plaintiff claims that defendant's removal of this action was untimely. Title 28 U.S.C. § 1446(b) provides, in pertinent part, that a notice of removal must be filed "within thirty days after receipt by the defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." (Id.) However, it also provides that
[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. . . .
(Id.) Thus, the 30-day period runs from the receipt of the initial pleading in an action or from receipt of the paper that first provides notice that removal may be proper. See Mountain Ridge State Bank v. Investor Funding Corp., 763 F. Supp. 1282, 1287-88 (D.N.J. 1991). A party need not have actual knowledge that removal is proper for the 30 days to begin to expire. (Id.)
Defendant's Notice of Removal was filed well over 30 days after it received the initial pleading in this action. However, defendant argues that the paper that first indicated that removal might be proper was plaintiff's First Amended complaint, which it received on October 5, 1998, only 10 days before it filed its Notice of Removal. Defendant contends that the First Amended Complaint demonstrated to it that plaintiff "alleges a claim under the FMLA." (See Notice of Removal, ¶ 4). Therefore, defendant maintains, the First Amended Complaint gave notice that the case could be removed on the basis of federal question jurisdiction, something which was not apparent from plaintiff's initial pleading.
The Court disagrees and concludes that the removal is manifestly untimely. In Count Three of both the Complaint and the First Amended Complaint, plaintiff does not assert a claim under the federal FMLA, but instead asserts a state law claim for violation of New Jersey public policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1990). To the extent that Count Three of the First Amended Complaint demonstrates that the state law claim relies on interpretation of the FMLA, that was just as clear in the version of Count Three that was included in plaintiff's initial pleading.
Defendant admits that the claim in Count Three of the Complaint was a state law claim for violation of New Jersey public policy, but it argues that, in contrast, the claim asserted in Count Three of the First Amended Complaint is a federal law claim under the FMLA. Defendant notes, correctly, that Count Three of the Complaint states, "During the course of plaintiff's employment, plaintiff was not permitted to take intermittent leave as permitted under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. This is contrary to the public policy of New Jersey." (Compl., ¶ 28). In addition, defendant correctly notes that this specific language is not contained in the expanded version of Count Three that plaintiff asserts in the First Amended Complaint.
Nonetheless, Count Three of the First Amended Complaint likewise asserts a state law claim for violation of New Jersey public policy rather than a federal law claim under the FMLA. The heading for Count Three of the First Amended Complaint is" " (Violation of the Public Policy of New Jersey)." (First Am. Compl., Count Three). In addition, like the version of Count Three stated in the Complaint, Count Three of the First Amended Complaint asserts that defendants failed to afford plaintiff the leave permitted under the FMLA. (First Am. Compl., ¶ 33), and that the FMLA is a source of New Jersey public policy (First Am. Compl., ¶ 32 ("The source of public policy of New Jersey includes legislation; administrative rules, regulations or decisions; and judicial decisions and therefore, would include the regulations associated with the federal Family Medical Leave Act")).
In both the initial Complaint and the First Amended Complaint, plaintiff asserts state law claims for violation of the public policy of New Jersey, and in both it is equally clear that defendants' alleged failure to provide the leave allowed under the federal FMLA supplies the basis for plaintiff's state law claim. The Court is not in the least convinced by defendant's assertion that it first obtained notice that this Court might have federal question jurisdiction over this action when it received plaintiff's First Amended Complaint. Such notice was equally present in the Complaint. Therefore, defendants' removal of this action is manifestly untimely under 28 U.S.C. § 1446(c), and the case must be remanded to the Superior Court, Law Division, Monmouth County.
B. Lack of Subject Matter Jurisdiction
Although the Court need not address plaintiff's argument that the action should also be remanded for lack of subject matter jurisdiction, it will do so. Defendant contends that this action was properly removed because it "arises under" federal law and the Court, therefore, would have had original jurisdiction over it pursuant to 28 U.S.C. § 1331.See 28 U.S.C. § 1441(a) ("Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendants. . . ."). The Court agrees.
As explained above, the Court determines that this action does not assert a federal claim under the FMLA, as defendant contends, but instead asserts only state law claims under the NJLAD and Pierce v. Ortho. Nonetheless,
Even though state law creates [a party's] causes of action, its case might still `arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.
Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 13 (1983); see also Virgin Island Housing Authority v. Coastal General Construction, 27 F.3d 911, 916 (3d Cir. 1994) (explaining that for purposes of federal question jurisdiction, if federal law does not create the cause of action, the court must assess "whether the complaint poses a substantial federal question."). Here, although plaintiff's claim for wrongful discharge is created by state law, her right to relief "requires resolution of a substantial question of federal law in dispute between the parties." 463 U.S. at 13. In particular, it requires an adjudication of her rights under the federal Family Medical Leave Act.
Two relatively recent Supreme Court cases have complicated the analysis of whether a federal court has jurisdiction over a claim that is created by state law but requires resolution of a substantial federal question.See 15 Moore's Federal Practice 3d § 103.31[4]-[5] (describing confusion caused by Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), and Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988)). In Merrell Dow Pharmaceuticals Inc. v. Thompson, the Supreme Court warned that the rule enunciated in Franchise Tax Board and quoted above "must be read with some caution." Merrell Dow, 478 U.S. at 809. The Court held, in Merrell, that it did not have federal question jurisdiction over a state law claim which was predicated on a violation of the federal Food, Drug and Cosmetic Act because the federal statute did not create any private right of action.
In Christianson v. Colt Indus. Operating Corp., the Supreme Court interpreted 28 U.S.C. § 1338, which contains "arising under" language identical to that in 28 U.S.C. § 1331, in the same manner as that language had been interpreted in Franchise Tax Board. Specifically, the Court indicated, without reference to Merrell Dow, that there is federal jurisdiction under that provision if the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law. Christianson, 486 U.S. at 808.
The Family Medical Leave Act does create a private right of action, so the Court's jurisdiction is not circumscribed by Merrell Dow. Under the standard of Franchise Tax Board and Christianson, the Court has jurisdiction here because the plaintiff's right to relief depends on resolution of a substantial question of federal law.
In Danfelt v. Board of County Commissioners of Washington County, Maryland, 998 F. Supp. 606 (D.Md. 1998), another district court considered whether it had federal question jurisdiction over a state law claim for wrongful discharge predicated on an employer's violation of the federal Family Medical Leave Act. That court likewise concluded thatMerrell Dow was not an impediment to the exercise of federal question jurisdiction over the claim. 998 F. Supp. at 609. However, there, the plaintiff had asserted an alternative predicate for her wrongful discharge claim that could not sustain federal question jurisdiction. She claimed that her employer had wrongfully discharged her by violating the FMLA and the Americans with Disabilities Act ("ADA"), but she had failed to exhaust administrative remedies under the ADA. The ADA, therefore, did not afford her a private right of action and could not provide a basis for federal question jurisdiction under Merrell Dow. 998 F. Supp. at 609-10. The district court interpreted Christianson to stand for the proposition that federal question jurisdiction does not exist where a claim is supported by alternative theories of recovery, only one of which supports federal jurisdiction. (Id. at 609). On that basis, the court concluded that it lacked jurisdiction over the plaintiff's state law claim for wrongful discharge even though the claim was predicated, at least in part, on the FMLA. (Id.)
Here, plaintiff asserts only one theory of recovery for her state law wrongful discharge claim, namely that defendant violated the FMLA. Therefore, unlike in Danfelt, Christianson poses no bar to the Court's exercise of federal question jurisdiction over her wrongful discharge claim. Once again, however, notice of this basis for federal jurisdiction was evident in the allegations of the original Complaint.
The Court remands this matter because defendant's removal of it was untimely. Had the removal been timely, the Court concludes, it would have had subject matter jurisdiction over plaintiff's claims.
C. Attorney's Fees
Finally, the Court has before it plaintiff's motion for attorney's fees, returnable January 11, 1999. Although ordinarily the Court would retain this action for purposes of adjudicating that motion and afford the time for response allowed under Local Civil Rule 7.1, it determines that to be unnecessary here since the motion is without merit. First, the statutory provision primarily relied upon by plaintiff, 42 U.S.C. § 1988, which provides for attorney's fees in civil rights cases, is inapplicable in this context, where the claims are for violations of the NJLAD and New Jersey public policy.
In addition, the Court has discretion to award attorney's fees under 28 U.S.C. § 1447(c), but considers it inappropriate to do so here. Under 28 U.S.C. § 1447(c), "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." A finding of bad faith is not a prerequisite to the imposition of costs and fees under § 1447(c). Eyal Lior v. SIT, 913 F. Supp. 868, 878 (D.N.J. 1996). Nonetheless, the Court declines to award costs and fees here because, as discussed above, it agrees with defendant that it did have subject matter jurisdiction over this action and defendant's arguments as to the timeliness of removal, though unsuccessful, were neither frivolous nor in bad faith. Plaintiff's application for attorney's fees will be denied.
CONCLUSION
For the foregoing reasons, plaintiff's motion to remand this matter to the Superior Court of New Jersey, law Division, Monmouth County, is granted. Her motion for attorney's fees is denied.
O R D E R
For the reasons set forth in the Court's Opinion filed herewith,
It is on this, ___ day of December, 1998,
ORDERED that plaintiff's motion to remand be, and it hereby is, granted, and the Clerk of the Court is hereby directed to remand this matter to the Superior Court of New Jersey, Law Division, Monmouth County; and it is further
ORDERED that plaintiff's motion for attorney's fees be, and it hereby is, denied.