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NOT FOR PUBLICATION (Docket Entry No. 5) 

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE

 

___________________________________ 

 : 

GLORIA J. MONTANA, : 

 : 

 Plaintiff, : Civil No. 11-1394 (RBK/JS) 

 : 

 v. : OPINION

 : 

ACRA TURF CLUB, LLC d/b/a : 

FAVORITES AT VINELAND, et al., : 

 : 

 Defendants. : 

___________________________________ : 

KUGLER, United States District Judge: 

 This case, having been removed from the Superior Court of New Jersey by Defendants 

Acra Turf Club, LLC d/b/a Favorites at Vineland, et al. (“Defendants”), comes before the Court 

on the motion of Plaintiff Gloria Montana (“Plaintiff”) to remand. Because this Court finds that 

it does not have jurisdiction, the case will be remanded to the Superior Court. 

I. BACKGROUND 

Plaintiff has been employed since April 2007 by Defendant Acra Turf Club (“Acra”), a 

limited liability company authorized to operate an off-track betting facility. Compl. ¶¶ 1-2. 

During her period of employment at Acra, Plaintiff was a member of Defendant Sports Arena 

Employees Local 137, AFL-CIO (the “Union”). Compl. ¶ 3. Plaintiff alleges that Acra 

discriminated against her based on her sex by consistently assigning her fewer hours of work per 

week than her male coworkers. 

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On February 7, 2011, Plaintiff originally filed a Complaint against Defendants in 

Superior Court in Camden County, New Jersey. The Complaint included four counts, alleging 

violations of New Jersey’s Law Against Discrimination (“NJLAD”) and its Equal Pay Act 

(“EPA”). On March 10, 2011, Defendants removed the state court case to this Court. On March 

25, 2011, Plaintiff filed the present motion to remand, arguing that this Court does not have 

original subject matter jurisdiction. In the motion to remand, Plaintiff also requests attorney’s 

fees. 

Defendant subsequently filed a motion to dismiss on April 18, 2011. Because this Court 

finds that it does not have original jurisdiction, this Court is not empowered to adjudicate 

Defendant’s Motion to Dismiss Count I of Plaintiff’s claim for failure to state a claim upon 

which relief can be granted. 

II. DISCUSSION

A. Standard for Removal

 Under 28 U.S.C. § 1441(a), a defendant may remove an action filed in state court to a 

federal court with original jurisdiction over the action. Once an action is removed, a plaintiff 

may challenge removal by moving to remand the case back to state court. To defeat a plaintiff's 

motion to remand, the defendant bears the burden of showing that the federal court has 

jurisdiction to hear the case. Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 

1995). Where the decision to remand is a close one, district courts are encouraged to err on the 

side of remanding the case back to state court. See Abels, 770 F.2d at 29 (“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.”); Glenmede Trust Co. v. Dow Chemical Co., 384 F. Supp. 423, 

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433-34 (E.D. Pa. 1974) (“It is well settled that district courts should remand close or doubtful 

cases for two reasons. First, remand will avoid the possibility of a later determination that the 

district court lacked jurisdiction and, secondly, remand is normally to a state court which clearly 

has jurisdiction to decide the case.”). 

 Section 301 of the Labor Management Relations Act (“LMRA”) provides that federal 

district courts have original jurisdiction over suits for violations of contracts, including collective 

bargaining agreements, between employers and labor organizations. 29 U.S.C. § 185 (2011). 

The Supreme Court has interpreted this statute to require that doctrines of federal labor law 

uniformly prevail over state law in disputes regarding the terms of collective bargaining 

agreements. Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962). However, the Supreme 

Court has made it equally clear that not every state law claim tangentially related to a collective 

bargaining agreement is preempted by section 301 of the LMRA. Allis-Chalmers Corp. v. Lueck, 

471 U.S. 202, 211 (1985). Section 301 of the LMRA only preempts state law if the application 

of state law would require the interpretation of a collective bargaining agreement. Lingle v. 

Norge Div. of Magic Chef Inc., 486 U.S. 399 (1988). 

 In this case, Defendants argue that this Court has original jurisdiction over Plaintiff’s 

state law claims of violation of New Jersey’s Equal Pay Act and Law Against Discrimination, 

because the state law claims are allegedly preempted by section 301 of the LMRA. Plaintiff 

argues that this Court does not have original jurisdiction over any of his claims because none of 

his state law claims against Defendants should be preempted by section 301 of the LMRA. 

Accordingly, the Court must determine whether Plaintiff’s state law claim for wrongful 

termination in retaliation for filing a claim for worker’s compensation benefits is preempted by 

section 301 of the LMRA, such that this Court has original jurisdiction over the claim. 

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B. Analysis

1. Motion to Remand 

 Defendants argue that Plaintiff’s claims of violations of the New Jersey Equal Pay Act, 

N.J. STAT ANN. §§ 34:11-56.2 (West 2011), and Law Against Discrimination, N.J. STAT ANN. 

§§ 10:5-12 (e) (West 2011), is preempted by section 301 of the LMRA because resolution of 

these claims requires the interpretation of the collective bargaining agreement. “[I]f the 

resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, 

the application of state law . . . is pre-empted and federal labor-law principles . . . must be 

employed to resolve the dispute.” Lingle, 486 U.S. at 405-06. 

 A factual inquiry, not an analysis of the collective bargaining agreement, is required to 

adjudge Plaintiff’s prima facie case for wrongful termination in retaliation for filing a claim for 

worker’s compensation benefits. In Lingle v. Norge Div. of Magic Chef Inc., the Supreme Court 

held that an Illinois state law tort claim of retaliatory discharge for filling a workers’ 

compensation claim was not preempted by section 301 of the LMRA because the factual inquiry 

required to resolve the state law claim did not require construing the collective bargaining 

agreement. Id. at 407. The Court found that the prima facie case for retaliatory discharge in 

Illinois included “purely factual questions pertain[ing] to the conduct of the employee and the 

conduct and motivation of the employer.” Id. The Court further found that neither the elements 

of the state law tort, nor the defense available to the employer, required the interpretation of the 

collective bargaining agreement in place between the parties. Id. 

The prima facie elements necessary to prove the violations of the Equal Pay Act and 

NJLAD are similar. Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 106 (1990) (“[T]he 

goals and policy of the EPA are mirrored in the LAD.”). In New Jersey, in order to establish a 

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prima facie case for violation of the Equal Pay Act, a plaintiff must prove (1) that she is a 

member of a protected class; and (2) that she was offered less hours of work than male parimutuel clerks. See NJ Model Civil Jury Charge 2.21(B)(4). Discrimination cases under the 

NJLAD are decided according to the burden-shifting framework set out in McDonnell Douglas. 

Vulcan Pioneers of New Jersey v. City of Newark, 374 Fed.Appx. 313, 318 (3d Cir. 2010) (citing

McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)). Under the NJLAD, “the prima facie 

elements of a discrimination claim vary depending on the particular facts of the case.” Storey v. 

Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004). To prove a prima facie case of 

disparate treatment, “a plaintiff must offer sufficient evidence that he was: (1) a member of a 

protected class, (2) qualified for the position, and (3) nonmembers of the protected class were 

treated more favorably than him.” See Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 

313, 318–19 (3d Cir.2000) (citing Ezold v. Wolf, Block, Schorr and Solis Cohen, 983 F.2d 509, 

522 (3d Cir.1993)). 

To refute a claim of discrimination in violation of the NJLAD, the employer must 

demonstrate that the decreased number of hours was allocated for another, non-pretextual reason. 

See Kube v. New Penn Motor Express, Inc., 865 F. Supp. 221, 230 (D.N.J. 1994). As in Lingle, 

the analysis required to adjudge the prima facie case and the available defenses in New Jersey for 

the NJLAD and Equal Pay Act are factual inquiries that do not require analysis of the collective 

bargaining agreement between the parties. As a result, Plaintiff’s claim is not preempted by 

section 301 of the LMRA. 

 Defendants argue that the collective bargaining agreement in this case governs all claims 

Plaintiff may bring against Defendants because Plaintiff’s employment, termination, and workers’ 

compensation claims are governed by the terms of the agreement. The state law claims of 

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violation of the New Jersey Equal Pay Act and violation of the New Jersey Law Against 

Discrimination, however, do not require an analysis of the terms of employment but rather the 

motivations behind Defendants’ decision to terminate Plaintiff’s employment. Therefore, no 

analysis of the collective bargaining agreement is necessary with regard to claims for violations 

of the New Jersey Equal Pay Act and Law Against Discrimination. 

 Accordingly, Plaintiff’s state law claims are not preempted by section 301 of the LMRA. 

Therefore, this Court does not have original jurisdiction, and Defendants’ removal does not 

comport with the requirements of the removal statute, 28 U.S.C. § 1441(b). 

2. Request for Attorney’s Fees 

In the Motion to Remand, Plaintiff also requests counsel fees and costs pursuant to 28 

U.S.C. § 1447. In addressing the question of whether counsel fees should be awarded in this 

matter, Plaintiff cites to Martin v. Franklin Corp., 546 U.S. 132, 126 S.Ct. 704, 163 L.Ed.2d 547 

(2005). In Martin, the Supreme Court noted, “[a]bsent unusual circumstances, courts may award 

attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable 

basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should 

be denied.” Id. at 140-41. The Court agrees with Defendant that they were objectively 

reasonable in seeking removal. At a minimum, Defendant had a good faith belief that Plaintiff’s 

claims would require interpretation of the CBA, and that therefore removal was proper. No 

evidence exists to conclude that Defendant attempted the removal to delay or to unreasonably 

impose additional litigation costs upon Plaintiff. Accordingly, Plaintiff's application for counsel 

fees is denied. 

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III. CONCLUSION

 Because this Court does not have original jurisdiction, as required by 28 U.S.C. § 1441(b), 

this case will be remanded to the Superior Court of Camden County, New Jersey. An 

accompanying Order shall issue today. 

 

Dated: 10/4/11 /s/ Robert B. Kugler 

 ROBERT B. KUGLER 

 United States District Judge

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