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May 4, 1988

Elliot L. Robinson and Harvey Levine, on behalf of themselves and all others similarly situated, Plaintiffs,
Sizes Unlimited, Inc., and The Limited, Inc., Defendants

The opinion of the court was delivered by: WOLIN

 This age discrimination case arises from the termination of the employment of plaintiffs Elliot Robinson and Harvey Levine, two former employees of Sizes Unlimited, Inc. ("Sizes Unlimited"). *fn1" Plaintiffs originally filed this action against Sizes Unlimited and its parent corporation, The Limited, Inc. (collectively, the defendants) in state court, whereupon defendants removed to federal court. Defendants then moved to dismiss the complaint on various grounds, all of which were denied without prejudice by Judge Ackerman. See Order filed September 29, 1987 (denying, without prejudice, defendants' motions to dismiss). Subsequently, defendants now bring a motion to dismiss plaintiffs' pendent state law claims. For the following reasons defendants' motion is denied in part and granted in part.


 The facts are simple. The substance of plaintiffs' allegation is that they were fired as part of a campaign to terminate the older employees of Sizes Unlimited which was instigated by its parent, The Limited, Inc. *fn2" From August, 1983 through December, 1984, Elliot Robinson was employed as a store manager of Sizes Unlimited. At the time of his termination Robinson was fifty-two years old. Similarly, from October, 1981 through February, 1985, Harvey Levine was employed as a district manager for Sizes Unlimited; he was forty-three at the time of his termination.

 As already noted, plaintiffs filed a four count complaint in the Superior Court of Bergen County, New Jersey on December 24, 1986 which was removed to federal court on February 20, 1987. Count III of the complaint is based on the Federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; this count is brought on behalf of plaintiffs and all others similarly situated. Counts I and II are based, respectively, on the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. 10:5-1 et seq., and the New Jersey Constitution, Article I, paragraph 1. These two counts are also brought as class actions. In Count IV, plaintiff Elliot Robinson alleges an individual cause of action under the NJLAD, N.J. Stat. Ann. 10:5-4.1, for discrimination against the handicapped. *fn3"

 It is clear that with respect to plaintiffs' ADEA claims this court has subject matter jurisdiction because these claims present a federal question pursuant to 28 U.S.C. § 1331. As to plaintiffs' other claims, however, defendants note that they are based on alleged violations of New Jersey state law and that jurisdiction only exists if this court exercises its powers of pendent jurisdiction. See Ambromovage v. United Mine Workers of America, 726 F.2d 972, 989 n.48 (3d Cir. 1984) ("'Pendent jurisdiction' generally refers to a federal court's jurisdiction over the plaintiffs' nonfederal claims, as long as there is a federal claim which gives the court jurisdiction."). In the instant case defendants assert that there are three grounds which render pendent jurisdiction inapplicable: (1) this court does not have the power to exercise pendent jurisdiction over a state law age discrimination "opt-out" class action brought in conjunction with a federal ADEA "opt-in" class action; (2) pendent jurisdiction would cause this court to needlessly decide novel issues of state law; and (3) there would be jury confusion created with respect to the appropriate remedies applied to plaintiffs' proposed combination of federal and state age discrimination class actions. Plaintiffs respond that not only does this court have the power to exercise pendent jurisdiction, but that the exercise of jurisdiction over the state law claims is particularly appropriate in the instant action.


 A. Standards for Exercising Pendent Jurisdiction.

 This court may exercise its powers of pendent jurisdiction only if "the state and federal claims . . . derive from a common nucleus of operative fact." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). The mere existence of the power of pendent jurisdiction does not, however, mandate its use; district courts are given discretion when balancing the considerations of "judicial economy, convenience and fairness to litigants" in determining whether to invoke pendent jurisdiction. See Gibbs, 383 U.S. at 726, 86 S. Ct. at 1139 (noting that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right"). In other words, this court must determine whether "the state issues substantially predominate," thereby inviting their dismissal, or if instead, "the state claim is so closely tied to questions of federal policy that the argument for the exercise of pendent jurisdiction is particularly strong." Id. at 726-727, 86 S. Ct. at 1139.

 In applying the test for pendent jurisdiction as outlined in Gibbs, the Third Circuit has adopted a "three-tiered" analysis in which a district court must determine whether:

(1) a common nucleus of operative fact exists between the state claim at issue and the accompanying federal claim;
(2) the exercise of jurisdiction would violate existing federal policy; and
(3) in weighing various prudential factors, it is appropriate to hear the pendent state claim.

 Ambromovage, supra, 726 F.2d at 989-90. The first and second prongs of this analysis address the court's power to entertain the state law claims under the Constitution and other relevant federal statutes; the third prong, discretionary in its application, is ...

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