1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION

ALLISON DIXON,

 

Plaintiff,

v.

RUTGERS UNIVERSITY 

FACILITIES MAINTENANCE 

SERVICES, ET AL.,

 

Defendants.

Civil Action No. 

2:11-CV-1409-ES-SCM

[D.E. 67]

REPORT AND RECOMMENDATION

STEVEN C. MANNION, United States Magistrate Judge.

I. INTRODUCTION

Before the Court is plaintiff Allison Dixon’s (hereinafter 

“Plaintiff” or alternatively, “Dixon”) Motion to Remand this 

case to the Superior Court of New Jersey, Middlesex County. 

(Docket Entry (“D.E.”) 67). The motion was filed on February 

12, 2013. Pursuant to Local Civil Rule 72.1(a)(2), the 

Honorable Esther Salas, United States District Judge, has 

referred the instant motion to the undersigned for report and 

recommendation.

The Court reviewed the parties’ respective submissions and 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 1 of 21 PageID: 1710
2

oral argument held on April 11, 2013.1 (D.E. 67, 72, 75, and 79). 

Having considered the parties’ respective submissions and the 

oral arguments of all counsel, for the reasons summarized at 

oral argument and set forth herein, it is respectfully 

recommended that Plaintiff’s Motion to Remand be denied.

Nonetheless, in consideration of the Federal Rule of Civil 

Procedure 41(a)(2) dismissals of all Federal claims and all 

state law claims against defendants AFSCME Local 888, Michael 

Holland, and the unknown defendants, and this Court’s on-going

obligation to evaluate the propriety of exercising supplemental 

jurisdiction over state law claims, it is further recommended 

for the reasons set forth below that this Court decline 

supplemental jurisdiction and remand this action to the Superior 

Court of New Jersey.

 

1 Although this Report only addresses the Motion to Remand, also 

before the Court were Plaintiff’s motions to Amend her Complaint 

[D.E. 52] and to extend discovery [D.E. 64]. Those motions are 

addressed in the bench decision placed on the record on April 

24, 2013. (D.E. 81). The Court converted the Motion to Amend 

into a Motion to Supplement pursuant to Federal Rule of Civil 

Procedure 1 and granted the motion in part and denied it in 

part. The Court has since also extended fact and expert 

discovery and entered an Amended Scheduling Order. In addition, 

the Court also granted Plaintiff’s Federal Rule of Civil 

Procedure 41(a)(2) requests to dismiss all Federal claims and 

all state law claims against defendants AFSCME Local 888, 

Michael Holland, and the unknown defendants.

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 2 of 21 PageID: 1711
3

II. BACKGROUND

On January 10, 2011, Plaintiff filed an eight-count 

Complaint in the Superior Court of New Jersey, Law Division 

alleging that defendants are liable to her for violating, among 

other state laws, the New Jersey Law Against Discrimination 

(“NJLAD”), the New Jersey Constitution, and certain federal 

statutes such as the Civil Rights Act of 1964 and the Equal Pay 

Act of 1963 (“EPA”). (D.E. 1-3, Notice of Removal (“NOR”)-

Plaintiff’s Complaint (Exhibit A)). On March 10, 2011, pursuant 

to 28 U.S.C §§ 1441 and 1446 and with jurisdiction in the Court 

predicated on 28 U.S.C. § 1331(a) (federal question 

jurisdiction), counsel for defendants Rutgers, the State 

University of New Jersey, Antonio Calcado, Helen McCloskey and 

Alicia Rodriguez (hereinafter collectively referred to as

“Rutgers”), with consent from the other named defendants, filed 

a Notice of Removal in this Court.

2 (D.E. 1-2, NOR - Declarations 

 

2 The Notice of Removal was procedurally defective in so far as 

the summons and other proof of process were not appended as 

required by 28 U.S.C. § 1446(a). Therefore, this Court was 

without sufficient proofs to verify whether Defendants’ Notice 

of Removal was actually timely filed pursuant to § 1446(b), 

which requires that the Notice of Removal be filed within 30 of 

the receipt of the Complaint by service or otherwise. However, 

this procedural defect has been rendered moot by Plaintiff’s 

failure to file a timely Motion to Remand pursuant to § 1447(c), 

which requires said Motion to be filed within 30 days of the 

Notice of Removal. Also, in the opening paragraph the Notice of 

Removal states, in error, that removal was predicated on 28 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 3 of 21 PageID: 1712
4

of Consent (Exhibit B)). Subsequently, all named Defendants 

filed Answers to the Complaint. (D.E. 7, 8, 9). 

By way of the Pre-trial Scheduling Order dated July 7, 

2011, the deadline for filing motions to amend pleadings and/or 

to add new parties was set for September 16, 2011. [D.E. 21]. 

On January 26, 2012, Plaintiff was permitted to file an out-oftime Motion for Leave to Amend her Complaint to include claims 

and allegations pertaining to her December 2011 termination. 

This was the first of Plaintiff’s numerous attempts to 

supplement her Complaint with claims for violations of Due 

Process rights, Equal Protection (state and federal) and 

wrongful, retaliatory termination.(D.E. 25, Plaintiff’s Motion 

for Leave to Amend/Correct Second Amended Complaint).

3 

By way of a Letter Order dated March 16, 2012, this Court 

denied Plaintiff’s first Motion to Amend her Complaint without 

prejudice, permitting Plaintiff to file a new motion to amend 

the Complaint within seven (7) days. (D.E. 32, Judge Waldor’s 

 

U.S.C. § 1332 (diversity jurisdiction). This error was 

corrected in paragraph number and others that state that 

jurisdiction was predicated on 28 U.S.C. 1331(a) (federal 

question).

3 It is not clear to the Court why Plaintiff styled her Motion as 

a Motion to Amend/Correct a Second Amended Complaint as there is 

no record of a First Amended Complaint or a Second Amended 

Complaint in this action. Presumably, this was a misnomer by 

Plaintiff because the operative Complaint, attached as Exhibit A 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 4 of 21 PageID: 1713
5

March 2012 Letter Order). On April 1, 2012, Plaintiff filed 

another Motion to Amend her Complaint (with a revised Proposed 

Amended Complaint). (D.E. 37, Plaintiff’s Second Motion to 

Amend). Then, on May 14, 2012, Plaintiff submitted an out-oftime Reply to Defendants’ Opposition to Plaintiff’s Motion to 

Amend, and in said Reply, Plaintiff expressed her desire to 

withdraw the revised Amended Complaint submitted on April 1, 

2012 and requested leave to file another Motion to Amend with a 

redrafted Amended Complaint containing, for the first time, a § 

1985(3) claim for civil conspiracy against defendants Rodriguez, 

McCloskey and a then unnamed non-party alleged co-conspirator.4

(D.E. No. 39, Plaintiff’s May 14, 2012 Reply (“Pl. Reply”)). 

By way of Judge Waldor’s Letter Order dated June 18, 2012, 

this Court ordered that Plaintiff’s Motion to Amend be 

terminated because Plaintiff’s Motion contained significant 

procedural defects. (D.E. No. 48, Judge Waldor’s June 2012 

Letter Order). In her June Letter Order, Judge Waldor detailed 

the “tortured history” of this case in general, and in 

particular, Plaintiff’s previous failed efforts to properly move 

to amend her Complaint, opining in relevant part:

 

to Defendants’ Notice of Removal, is captioned simply as 

‘Complaint’.

4 Presumably, this unnamed alleged co-conspirator is Carol 

Trexler, the party Plaintiff seeks to join via the instant 

Motion to Amend the Complaint and Add and Additional Party.

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 5 of 21 PageID: 1714
6

This case has a tortured procedural history. Plaintiff 

has been attempting to amend her first amended 

complaint since late January 2012 to add new facts and 

claims resulting from Plaintiff’s termination in 

December 2011. Plaintiff’s initial formal motion to 

file a first amended complaint was denied without 

prejudice on March 16, 2012 after Plaintiff’s attempts 

to follow the procedural guidelines proved 

unsuccessful. (Docket Entry No. 32). Specifically, 

Plaintiff continued to submit proposed amended 

complaints with changes that were not put forward or 

discussed in Plaintiff’s moving papers for the Court’s 

review. In keeping with Fed.R.Civ.P. 15(a)(2)’s 

liberal pleading standard, however, the Court gave 

Plaintiff an additional opportunity to file a formal 

motion to amend the complaint. (Id.). See Dole v. Arco 

Chem. Co., 921 F.2d 484 (3d Cir. 1990).2 This leads us 

to our present conundrum. As noted above, Plaintiff 

asks this Court to give Plaintiff and her counsel yet 

another chance to clarify and correct the complaint. 

Out of an abundance of caution and in light of the 

fact that this Circuit prefers that “a particular 

claim . . . .be decided on the merits rather than on 

technicalities,” the Court grants Plaintiff leave to 

file her third formal motion to file a first amended 

complaint. Id. at 487. This will be Plaintiff’s last 

opportunity to file a proper motion to amend and must 

comply with all federal and local rules. [sic]

Id. 

On July 13, 2012, Plaintiff filed her third formal Motion 

to Amend her Complaint. (D.E. No. 52, Plaintiff Third Motion to

Amend). As an exhibit to her Motion to Amend Plaintiff attached 

a Proposed First Amended Complaint in which she added various 

allegations of retaliatory termination and federal Due Process 

claims- in addition to the various state and federal claims that 

were contained in her original Complaint. See (D.E. 52-3).

Defendants filed a timely opposition to Plaintiff’s Motion to 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 6 of 21 PageID: 1715
7

Dismiss and Plaintiff replied in a timely fashion. (D.E. 53, 

54). 

By Order of the Court dated November 20, 2012, all claims 

against defendants John Lemongelli and Gerard O’Donnell were 

dismissed with prejudice and all claims against defendant

Anthony Armenti were dismissed without prejudice. [D.E. 60, 

Order of Dismissal].

On January 10, 2013, Plaintiff filed a Motion to Extend 

Discovery, the substance of which concerned the filing of 

Plaintiff’s expert reports- specifically her medical reports. 

(D.E. 64, Plaintiff’s Motion to Extend Discovery).

Plaintiff filed the instant Motion on February 12, 2013. 

(D.E. 67, Plaintiff’s Motion to Remand). Plaintiff submitted as 

an exhibit to her motion a Proposed First Amended Complaint 

which, if allowed, would abjure all of her federal claims. See

(D.E. 67-2). In the instant motion, Plaintiff argues that 

because she abjured all of her federal claims, this Court no 

longer has federal question subject matter jurisdiction over the 

instant action. (D.E. 52-1, Plaintiff’s Moving Brief (“Pl. Br.” 

at 3). Defendant filed a timely Opposition (D.E. 72) and 

Plaintiff replied (D.E. 75).

5

 

5

Defendants AFSCME Local 888 and Michael Holland filed a 

separate Opposition Brief. (D.E. 74). However, because these 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 7 of 21 PageID: 1716
8

III. SUMMARY OF PARTIES’ POSITIONS 

A. Plaintiff’s Moving Brief

In her Motion to Remand, Plaintiff posits that the instant 

action must be remanded because this Court no longer has subject 

matter jurisdiction over this action due to the fact that her 

Proposed Amended Complaint, as submitted with the instant 

Motion, no longer contains any federal questions. (D.E. 67-2, 

Plaintiff’s Moving Brief (“Pl. Br.”) at 3, 4). Plaintiff also 

argues in her Motion to Remand, presumably to justify the 

submission of an untimely proposed amended complaint that 

abjures all federal claims, that she should be granted leave to 

amend her Complaint. Id. at 4. Additionally, Plaintiff also 

argues that because New Jersey law predominates and because 

there are novel issues of state law (with respect to her newly 

styled Proposed First Amended Complaint) this Court should 

decline to continue to exercise supplemental jurisdiction over 

the instant action. In making this argument Plaintiff 

acknowledges that the Court has discretion pursuant to 28 U.S.C. 

§ 1367(c), to decide whether the continued exercise of 

supplemental jurisdiction over state claims is proper. Id. at 4-

5.

 

defendants were dismissed pursuant to Fed.R.Civ.P. 41(a)(2), 

their arguments are not considered here.

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 8 of 21 PageID: 1717
9

B. Defendants’ Opposition Brief

In their Opposition Brief, defendants allege that Plaintiff 

moved to remand as an attempt to evade this Court’s discovery 

Orders. (D.E. 72, Defendants’ Opposition Brief (“Df. Opp. Br.”) 

at 3, 4). Defendants further argue that Plaintiff’s attempt to 

seek remand is procedurally deficient in so far as her Motion to 

Remand is based on a Proposed First Amended Complaint for which 

she did not follow appropriate procedure to file and did not 

receive leave from the Court to file.6 Id. Additionally, 

defendants argue that they will be prejudiced if the case is 

remanded, as they have relied on this Courts various rulings in 

preparing their defenses. Id. at 4. Finally, defendants assert 

that Plaintiff’s Motion to Remand is an attempt to engage in 

improper forum manipulation. Id. at 8-10.

C. Plaintiff’s Reply

In her reply, Plaintiff argues that remand is mandatory 

pursuant to 28 U.S.C. 1447(c) (again, based on Plaintiff’s 

Proposed First Amended Complaint). (D.E. 75, Plaintiff’s Reply 

 

6 Regarding Plaintiff’s motion to amend as contained in her 

Motion to Remand, Defendants argue, in addition to it being 

procedurally defective, that Plaintiff’s motion to amend should 

fail due to undue delay. (D.E. 72 at 4). This objection was 

addressed by the undersigned at oral argument and is reflected 

in the resultant Order of the Court that granted Plaintiff’s

actual Motion to Amend/Supplement in part and denied it in part.

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 9 of 21 PageID: 1718
10

Brief (“Reply Br.”) at 7). Plaintiff further argues, without 

reference to any legal authority or to any distinguishing facts,

against a strict interpretation of the case law that has 

established that a plaintiff’s amendments to the complaint does 

not deprive the district court of subject matter jurisdiction. 

Id. at 8.

7

IV. ANALYSIS

As an initial point, the Court notes that a decision to 

remand is dispositive. In Re U.S. Healthcare, 159 F.3d 142, 146 

(3d Cir. 1998) (“[A]n order of remand is no less dispositive 

than a dismissal order of a federal action for lack of subject 

matter jurisdiction where a parallel proceeding is pending in 

the state court.”) Accordingly, the undersigned makes the 

 

7 The only case Plaintiff cites actually stands for the opposite 

proposition for which Plaintiff appears to be arguing. See Allen 

v. Rite Aid, Inc., 1991 WL 148272 (Civ. A. No. 91–3835)(Here, the 

Court disagreed with the plaintiff’s assertion that the 

dismissal of the only federal claim required remand of the case, 

opining: ”in these circumstances, this court has discretion to 

retain jurisdiction over the removed action, remand the matter 

to state court, or in the alternative, dismiss the complaint.” 

Id. at *2.

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 10 of 21 PageID: 1719
11

following report and recommendation to the assigned United 

States District Judge, the Honorable Esther Salas.

A. Untimeliness of Plaintiff’s Motion to Remand

The procedure for remand is governed by Title 28, Section 

1447(c) of the U.S. Code, which states, in relevant part that

“[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).” 28 U.S.C. § 1447(c). Therefore, only a Motion to 

Remand on the basis of lack of subject matter jurisdiction may 

be made after the statutorily established 30-day period 

immediately following the filing of the Notice of Removal. Farina 

v. Nokia Inc., 625 F.3d 97, 114 (2010)( a remand motion made on 

the basis of “any defect other than lack of subject matter 

jurisdiction” must be filed within thirty days of the notice of 

removal. The failure to timely move for remand results in a 

waiver of the objection. Wisconsin Dept. of Corrections, et al. 

v. Schacht, 118 S.Ct. 2047, 2054, 524 U.S. 381, 141 L.Ed.2d

(1998)(For cases in which removal is defective because of some 

reason other than lack of subject matter jurisdiction, such as 

untimeliness, there must be motion to remand filed no later than 

30 days after filing of removal notice.).

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 11 of 21 PageID: 1720
12

Plaintiff, apparently under the belief that by abjuring all 

her federal claims would divest this Court of subject matter 

jurisdiction over the instant case, moved to remand this case 

some twenty-two (22) months after this case was removed. While 

Plaintiff’s Motion to Remand purports to challenge this Court’s 

subject matter jurisdiction over this case, the law is 

established in this jurisdiction that a district court can 

maintain subject matter jurisdiction over state claims after the 

federal claim(s) that provided the basis for original 

jurisdiction and upon which removal was predicated have been 

voluntarily dismissed. Westmoreland Hosp. Ass'n v. Blue Cross, 

etc., 605 F.2d 119, 123 (1979)(A subsequent amendment to the 

complaint after removal designed to eliminate the federal claim 

will not defeat federal jurisdiction)citing Hazel Bishop, Inc. 

v. Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963). The Supreme 

Court has made it clear that a district court’s decision to 

decline to exercise supplemental jurisdiction over pendant state 

law claims is purely discretionary, opining: 

With respect to supplemental jurisdiction in 

particular, a federal court has subject-matter 

jurisdiction over specified state-law claims, which it 

may (or may not) choose to exercise (citation 

omitted). A district court's decision whether to 

exercise that jurisdiction after dismissing every 

claim over which it had original jurisdiction is 

purely discretionary.(citations omitted)...As a 

result, the [district] court's exercise of its 

discretion under § 1367(c) is not a jurisdictional 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 12 of 21 PageID: 1721
13

matter... 

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 

639-40, 129 S.Ct. 1862 (2009)).

Here, Plaintiff has conflated this Court’s discretion to 

decline to hear remaining state law claims with this Court being 

required to remand a case after federal claims have been 

dismissed. As such, because Plaintiff fails to raise a bona 

fide subject matter jurisdiction question, her motion is 

untimely and should therefore be denied.

B. Discretionary Exercise of Supplemental Jurisdiction

At oral argument Plaintiff requested that this Court 

dismiss all of her Federal claims and her state law claims 

against the union defendants. Consistent with its obligation to 

continuously assess the propriety of exercising supplemental 

jurisdiction over state law claims, this Court must now 

determine whether Plaintiff’s case should continue to proceed in 

district court. The Supplemental Jurisdiction statute states in 

relevant part that: 

The district courts may decline to exercise 

supplemental jurisdiction over a claim under 

subsection (a) if--

(1) the claim raises a novel or complex issue of State 

law,

(2) the claim substantially predominates over the 

claim or claims over which the district court has 

original jurisdiction,

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 13 of 21 PageID: 1722
14

(3) the district court has dismissed all claims over 

which it has original jurisdiction, or

(4) in exceptional circumstances, there are other 

compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c). Further, the Supreme Court, recognizing 

that a federal court’s exercise of its supplemental (pendant) 

jurisdiction could conflict with the principle of comity with 

respect to states, opined in Mine Workers v. Gibbs, that a 

federal court’s supplemental (pendent) jurisdiction is a 

doctrine of judicial discretion/abstention and advised that 

“considerations of judicial economy, convenience and fairness to 

litigants” all underscore a federal court’s broad power to 

decide state-law claims that appear with a federal question 

claim. Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130 

(1966).

In Carnegie-Mellon University, et al. v. Maurice B. Cohill, 

Jr., the Supreme Court applied the Gibbs broad judicial 

discretion standard for determining whether to hear state-law 

claims in the specific context of determining whether to remand 

state claims after the federal question claim had been dismissed 

by the party making a the Motion to Remand. Carnegie-Mellon 

University, et al. v. Maurice B. Cohill, Jr., 484 U.S. 343 

(1988). In doing so, the Carnegie-Mellon Court opined that: 

Under Gibbs, a federal court should consider and weigh 

in each case, and at every stage of the litigation, 

the values of judicial economy, convenience, fairness, 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 14 of 21 PageID: 1723
15

and comity in order to decide whether to exercise 

jurisdiction over a case brought in that court 

involving pendent state-law claims. When the balance 

of these factors indicates that a case properly 

belongs in state court, as when the federal-law claims 

have dropped out of the lawsuit in its early stages 

and only state-law claims remain,7 the federal court 

should decline the exercise of jurisdiction by 

dismissing the case without prejudice.

Id. at 350. Thus, as articulated by the Supreme Court in Gibbs

and Carnegie-Mellon, the district court has an obligation 

throughout litigation to examine whether to continue to exercise 

supplemental jurisdiction over state claims. The Court’s 

discretion in making the determination is meant to be applied 

flexibly and is designed to allow the Court to deal with cases 

involving pendent claims in the manner that most sensibly 

accommodates a range of concerns and values.

The Carnegie-Mellon Court also addressed the issue of 

whether (after applying the Gibbs framework and deciding that it 

should decline to continue to exercise jurisdiction over the 

case) the remaining state claims should be dismissed without 

prejudiced or may they be alternatively remanded, stating: 

This Court's crafting of the pendent jurisdiction 

doctrine in Gibbs strongly supports the conclusion 

that when a district court may relinquish jurisdiction 

over a removed case involving pendent claims, the 

court has discretion to remand the case to state 

court. Gibbs itself does not directly address this 

issue; because the plaintiff in Gibbs filed his suit 

in federal court, remand was not an option in the 

case, and the Court spoke only of dismissal. But Gibbs

establishes that the pendent jurisdiction doctrine is 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 15 of 21 PageID: 1724
16

designed to enable courts to handle cases involving 

state-law claims in the way that will best accommodate 

the values of economy, convenience, fairness, and 

comity, and Gibbs further establishes that the 

Judicial Branch is to shape and apply the doctrine in 

that light. Because in some circumstances a remand of 

a removed case involving pendent claims will better 

accommodate these values than will dismissal of the 

case, the animating principle behind the pendent 

jurisdiction doctrine supports giving a district court 

discretion to remand when the exercise of pendent 

jurisdiction is inappropriate.

Id. at 351. 

In Carnegie-Mellon, a former employee and his wife brought 

action for violations of federal and state age discrimination 

laws, wrongful discharge, breach of contract, intentional 

infliction of emotional distress, defamation, and 

misrepresentation; defendants/petitioners removed the case from 

state court to federal court; plaintiffs/respondents moved to 

amend their complaint abjuring their federal claims and for 

remand to state court; and after the district court judge 

remanded the case, defendants/petitioners appealed. Id. at 343. 

In holding that the federal district court had discretion to 

remand the removed case that involved pendent state law claims 

because the district court’s retention of jurisdiction would be 

inappropriate, the Court, recognizing that Gibbs did not involve 

a question of remand, nonetheless stated that “Gibbs establishes 

that the pendent jurisdiction doctrine is designed to enable 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 16 of 21 PageID: 1725
17

courts to handle cases involving state-law claims in the way 

that will best accommodate the values of economy, convenience, 

fairness, and comity.” Id. at 351. The Court also addressed the 

argument concerning “manipulative” forum shopping: 

...If the plaintiff has attempted to manipulate the 

forum, the court should take this behavior into 

account in determining whether the balance of factors 

to be considered under the pendent jurisdiction 

doctrine support a remand in the case. The district 

courts thus can guard against forum manipulation 

without a blanket rule that would prohibit the remand 

of all cases involving pendent state-law claims.

Id. at 357. Thus, in Gibbs and Carnegie-Mellon, the Supreme 

Court makes it very clear that the district court is permitted 

to take into consideration the particular circumstances of the 

case at bar in determining whether remand would be proper. 

In the instance case, the facts and circumstances weigh 

heavily in favor of remand. Now that all of Plaintiff’s federal 

claims and a number of defendants have been dismissed, the case 

has a distinctively different posture from its earlier 

iteration. First and most obviously, because Plaintiff’s claims 

are proceeding exclusively under the NJLAD statute and the New 

Jersey Constitution, the Superior Court of New Jersey’s interest 

in adjudicating this matter is substantially greater than that 

of the district court. Thus, comity is best served by remand. 

Despite the fact that that this case has proceeded for 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 17 of 21 PageID: 1726
18

nearly two years in federal court, discovery to not begin until 

after the July 2011 initial scheduling conference, defendants 

did not produce discovery until November or December 2011, and 

discovery has been limited to pre-trial matters that have not 

unduly prejudiced those same remaining defendants. Also, the 

discovery that has taken place thus far has not been in vain as 

the same or similar discovery would have almost certainly 

occurred had the case been in state court. More pertinently, 

the additional discovery to be taken will occur whether the case 

remains in federal court or is remanded; therefore, remand 

cannot be reasonably viewed as exposing Rutgers to significant 

additional discovery costs and expenses. Further, the Court’s 

recent orders have effectively reduced Plaintiff’s claims and 

streamlined the case, which translates into fewer claims for 

Rutgers to defend against moving forward.

The argument against remand that may have the strongest

rhetorical appeal, that by remanding the case, the parties have 

to effectively “get to the back of the line” with respect to the 

Superior Court docket is not persuasive for two reasons. First, 

as a remand the case is likely to be assigned its former docket 

number- MID-L-311-11. Second, a potential alternative to 

remanding the instant action would have been separate litigation 

if this Court had denied Plaintiff’s Motion to Amend with 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 18 of 21 PageID: 1727
19

respect to her retaliatory termination allegations. Had that 

happened it would have been denied without prejudice. 

Therefore, Plaintiff would have been free to pursue those claims 

in Superior Court. As such, both parties would have been

exposed to the time, costs and other burdens associated with 

simultaneously litigating two cases that derive from the same 

nucleus of operative facts in two different forums. 

Consequently, remanding this case to Superior Court best serves

the interests of judicial economy, convenience and fairness to 

all litigants. 

Finally, the facts do not support a finding of forum 

manipulation. The stated reasons for remand included an effort 

to streamline the litigation which Plaintiff did by not only 

dismissing her federal claims against all defendants, but doing 

so with prejudice. Likewise, Plaintiff also requested the 

dismissal of all state law claims against the union defendants. 

Defense counsel did not oppose either request to dismiss claims 

against their respective clients. Had this been an effort to 

manipulate the Court, it is likely that Plaintiff would have 

maintained her state claims.8 

 

8

 Even though the state claims were only dismissed without 

prejudice, Plaintiff is no doubt aware that if the dismissed 

claims were re-filed in Superior Court she would be exposed to 

the remedies available to the defense under New Jersey Court 

Rule 4:37-4 (costs of voluntarily dismissed action).

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 19 of 21 PageID: 1728
20

Also, Plaintiff and her counsel originally brought this 

action in the Superior Court of New Jersey. The tortured 

procedural history of this case in the District Court suggests a 

lack of familiarity with this Court’s procedures. Plaintiff’s 

request to return to her chosen forum under these circumstances 

evidences good judgment, not gamesmanship. For these reasons, 

this Court is satisfied that Plaintiff has not engaged in 

impermissible forum shopping by dismissing her federal claims. 

V. CONCLUSION

For the reasons articulated herein, the undersigned 

recommends that Plaintiff’s Motion to Remand be denied. It is 

also recommended that this Court exercise its discretion,

independent of Plaintiff’s Motion to Remand, pursuant to § 1367 

and controlling case law to decline further jurisdiction over 

this case and remand it to the Superior Court of New Jersey for 

further proceedings. The parties have fourteen days to file and 

serve objections to this Report and Recommendation pursuant to 

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 20 of 21 PageID: 1729
21

28 U.S.C. § 636 and L. Civ. R. 71.1(c)(2).

 

4/25/2013 1:20:21 PM

Date: April 25, 2013

Case 2:11-cv-01409-ES-JAD Document 83 Filed 04/25/13 Page 21 of 21 PageID: 1730