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MITCHELL v. VILLAGE SUPER MKT.

May 20, 1996

STEVEN P. MITCHELL, Plaintiff,
v.
VILLAGE SUPER MARKET, INC., et al., Defendants.



The opinion of the court was delivered by: ROSEN

 ROSEN, Magistrate Judge

 I. INTRODUCTION

 Presently before the court is the motion of Rona Zucker Kaplan, Esquire, counsel for the plaintiff, to remand to the Superior Court of New Jersey pursuant to 28 U.S.C. § 1447(c). *fn1" After careful consideration of the parties' submissions, and after further consideration of the oral argument conducted on the record on May 7, 1996, and for the reasons noted below, the motion shall be granted.

 II. FACTUAL AND PROCEDURAL BACKGROUND

 On approximately February 20, 1996, the plaintiff filed a complaint in the Superior Court of New Jersey alleging that Defendants Village Super Market, Inc., trading as Shop Rite Markets (hereinafter "the Market"), Victor D'Anna, Vice President of Human Resources/Labor Relations for Shop Rite, Demir Cakin, Director of Loss Prevention and Security for the Northern and Southern New Jersey Regions of Shop Rite, United Food and Commercial Workers International Union, Local 1358 (hereinafter "the Union"), Jane and John Doe employees of Shop Rite and members of the Union unlawfully discriminated against him on the basis of his race. The plaintiff makes the following allegations which, for the purposes of the present motion, this court shall take as true. *fn2" The Market hired Plaintiff Steven Mitchell in 1982. (Complaint P 7). Shortly after obtaining employment with the Market, the plaintiff became a member of the Union. (Id.). In June of 1982, the Market assigned the plaintiff to the security department as a plainclothes officer, and, in 1988, the Market promoted the plaintiff to Loss Prevention Supervisor for the Southern Region. (Id. at P 8). From 1982 to 1995, the plaintiff was a member of the Union, until, in April 1995, the Union terminated the plaintiff's membership. Moreover, following a medical leave of absence, the plaintiff was demoted from his position as Loss Prevention Supervisor in June 1995. *fn3" The plaintiff claims that each of the aforementioned events resulted from disparate treatment due to his race in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (hereinafter "NJLAD"). In Count One of the complaint, the plaintiff requests damages for the defendants' alleged violation of NJLAD. Count Two of the complaint alleges that the Union "conspired with, aided, abetted and assisted its co-defendants in their acts of unlawful discrimination by terminating plaintiff's union membership[,]" and "failed and refused to remedy its wrong or thoroughly investigate the matter." (Complaint, PP 52-53). The plaintiff alleges that his membership termination was indicative of the defendants' continuous discriminatory application of general rules and regulations of the Market and the Union. *fn4"

 On March 15, 1996, the defendants removed the action to federal court based upon "arising under" jurisdiction pursuant to 28 U.S.C. § 1331. Specifically, the defendants contend that the plaintiff's complaint asserts a cause of action which has been preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, (hereinafter "LMRA"), and Title II of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411, et seq. (hereinafter "LMRDA"). (Union's Br. at 2). The defendants reason that the plaintiff's claims require interpretation of the collective bargaining agreement and the plaintiff's rights thereunder in order to decide whether the plaintiff's rights were violated. Such an interpretive process renders the collective bargaining agreement and the plaintiff's relationship to it inextricably entwined. Therefore, the defendants argue, the plaintiff asserts a "classic cause of action pursuant to Section 301 of the Labor Management Relations Act." (Union Reply Br. at 3). On March 26, the plaintiff moved to remand the case contending that although he could have asserted a federal cause of action, he intentionally limited his request for recovery to the NJLAD and, consequently, should be permitted to proceed in state court.

 III. DISCUSSION

 Following removal to federal court, a plaintiff may obtain a remand to state court "[if] at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. 1447(c). The defendants, alleging that federal question jurisdiction exists, removed the action to this court pursuant to 28 U.S.C. § 1441. *fn5" The alleged basis for original jurisdiction is federal question or "arising under" jurisdiction. 28 U.S.C. 1441(b). It is well settled that "removal statutes are to be 'strictly construed against removal and all doubts should be resolved in favor of remand.'" Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993) (quoting Boyer v. Snap-On-Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991)), see also Steel Valley Author. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987), cert. dismissed sub nom American Standard, Inc. v. Steel Valley Authority, 484 U.S. 1021, 108 S. Ct. 739, 98 L. Ed. 2d 756 (1988). Although courts must focus on the plaintiff's complaint at the time the petition for removal was filed, courts have a continuing obligation to monitor jurisdiction after removal. Steel Valley, 809 F.2d at 1010.

 The plaintiff seeks to remand, arguing that pursuant to the well-pleaded complaint rule federal jurisdiction must be found on the face of the plaintiffs "well-pleaded complaint." A defendant may remove only those state court actions that originally could have been brought in federal court. According to the well-pleaded complaint rule, "where a plaintiff's complaint on its face states only state law cases of action, the fact that issues of federal law may be involved, as in the nature of a defense, will not suffice to create federal question jurisdiction." Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632, 636 (D.N.J. 1991). The Supreme Court has recognized that this rule was designed to make the plaintiff "master of the claim." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). Further, the Court has recognized that a case may not be removed to federal court on the basis of a federal defense, "including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." See Id. at 393, 107 S. Ct. at 2430 (citing Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 12, 103 S. Ct. 2841, 2847-48, 77 L. Ed. 2d 420 (1983)).

 However, the defendants rely upon the "independent corollary" to the well-pleaded complaint rule: the complete preemption doctrine. The complete preemption doctrine applies in those circumstances in which "the pre-emptive force of a [federal] statute is so 'extraordinary' that it 'converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' . . . Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. at 392, 107 S. Ct. at 2430 (quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 61, 107 S. Ct. 1542, 1547, 95 L. Ed. 2d 55 (1987)); see also, Spellman v. Meridian Bank, F.3d , 1995 U.S. App. LEXIS 37149, 1995 WL 764548, * 3-4 (3d Cir. 1995), Kozar v. AT&T, 923 F. Supp. 67, 1996 WL 203017 (D.N.J. 1996).

 The Third Circuit, recognizing the "very limited area in which a federal court in a case removed from a state court is authorized to recharacterize what purports to be a state law claim as a claim arising under a federal statute" (Spellman, at *3 (quoting Railway Labor Exec. Ass'n v. Pittsburgh & Lake Erie R. Co., 858 F.2d 936, 942 (3d Cir. 1988))), has adopted a two-pronged test by which a federal court may determine whether it is authorized to assert complete preemption jurisdiction:

 
First the court must determine that 'the statute relied upon by the defendant as preemptive contains civil enforcement provisions within the scope of which the plaintiff's state claim falls.' [Railway Labor, 858 F.2d] at 942 (citing Franchise Tax Board, 463 U.S. at 24, 26, 103 S. Ct. at 2854, 2855). Second, the court must find 'a clear indication of a ...

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