Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ENTREKIN v. FISHER SCIENTIFIC INC.

June 11, 2001

PATRICIA ENTREKIN, PLAINTIFF,
v.
FISHER SCIENTIFIC INC., DEFENDANT.



The opinion of the court was delivered by: Cooper, District Judge

MEMORANDUM OPINION

This matter comes before the Court on the motion of plaintiff Patricia Entrekin ("Entrekin") to remand the above-captioned case to the Superior Court of New Jersey, Somerset County ("Superior Court"). Defendant Fisher Scientific Inc. ("Fisher Scientific") had filed a notice to remove this case from the Superior Court to this Court. Entrekin seeks the remand of this action on the grounds that Fisher Scientific removed this action from the Superior Court in an untimely fashion. Specifically, plaintiff argues that defendant had notice, more than thirty days prior to removal, that the amount in controversy met the $75,000 threshold requirement for federal diversity jurisdiction. Entrekin also requests an award of counsel fees and costs incurred in connection with this motion. For the reasons expressed in this Memorandum Opinion, Entrekin's motion to remand and request for counsel fees and costs are denied.

BACKGROUND

Entrekin filed the Verified Complaint*fn1 in this matter in the Chancery Division of the Superior Court on or about May 23, 2000. (Verified Compl.; Aff. of Richard P. Flaum, Esq., filed 10-31-00 ("Flaum Aff.") ¶ 2.) Fisher Scientific filed its Notice of Removal on September 1, 2000. (Notice of Removal filed 9-1-00 ("Notice of Removal"), no. 1-1 on the docket.) Fisher Scientific sought removal based on 28 U.S.C. § 1441 and 28 U.S.C. § 1446, asserting that this Court has original diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332. (Id. ¶ 1.) According to the Notice of Removal, "[Entrekin], residing at Raritan, New Jersey, commenced this action by filing a four (4) count Verified Complaint, dated May 22, 2000, in the [Superior Court], against, [Fisher Scientific], a Delaware corporation with its principal office in Hampton, New Hampshire."*fn2 (Id. ¶ 2.) It is necessary in this section to describe in some detail the pleadings, papers and events in the state court proceedings. According to the Verified Complaint, Entrekin commenced her employment with Fisher Scientific on December 12, 1975. (Verified Compl. ¶¶ 1-2.) The Verified Complaint provides a quite extensive review of Entrekin's employment history, particularly her past periods of disability generally due to mental health problems, and, in some cases, tardive dyskinesia, and the alleged knowledge of these periods of disability possessed by Fisher Scientific, which permitted her to return to work without any reduction in pay or loss of benefits after each period. (Verified Compl. ¶¶ 1-21.) Beginning on or about October 12, 1993, Entrekin purportedly began treatment with her current physician, Dr. Susan Peet Rowley ("Dr. Rowley"). (Id. ¶ 13.)

Turning to Entrekin's most important allegations, Entrekin alleges that she worked at Fisher Scientific from September of 1997 to January of 1999, when she again suffered serious mental health problems and went out on disability. (Id. ¶¶ 22-23.) Allegedly, this period of disability occurred, as in the past, with Fisher Scientific's knowledge and consent. (Id. ¶ 24.) Entrekin claims that in or around August of 1999, certain medication changes significantly improved her condition and that, in November of 1999, Dr. Rowley assigned certain tasks in order to assess whether or not she could return to work. (Id. ¶¶ 25-27.) Dr. Rowley allegedly cleared Entrekin for work in December of 1999. (Id. ¶ 28; see also Verified Compl. Ex. A: Evaluation of Patricia Entrekin by Susan P. Rowley, M.D., for 1/99 to 12/99 at 3.) Entrekin asserts that Dr. Rowley concluded that Entrekin had returned to her baseline because of a psychological evaluation performed by Dr. Howard Mangel on December 12, 1997 and a comparison between the tasks Entrekin was able to complete in December of 1999 with the tasks she was able to perform when previously examined by Dr. Mangel. (Verified Compl. ¶¶ 29-30; see also Compl. Ex. B: Letter from Howard R. Mangel, Ed.D., dated 12-12-97.)

Although Dr. Rowley allegedly cleared Entrekin to return to full-time employment, the Verified Complaint states that she recommended that Fisher Scientific permit Entrekin to work half-days as a transition period. (Verified Compl. ¶¶ 30-31.) Entrekin claims that Fisher Scientific followed Dr. Rowley's earlier requests without question. (Id. ¶ 32.) Fisher Scientific, however, allegedly required that Entrekin return to work on a full-time basis, and Dr. Rowley therefore allegedly furnished Fisher Scientific with a note stating that Entrekin could return to full-time work without restrictions. (Id. ¶ 33; see also Verified Compl. Ex. C: Prescription Blank signed by S.P. Rowley.) Entrekin alleges that she contacted Fisher Scientific on or about December 6, 1999 and Fisher Scientific required Entrekin to be evaluated by its physicians, Priority Medical Care. (Verified Compl. ¶¶ 33-34.) After this evaluation, Priority Medical Care purportedly provided full clearance for Entrekin to return to work on December 8, 1999 without restrictions. (Id. ¶ 35; see also Verified Compl. Ex. D: Priority Medical Care Return to Work Evaluation.)

When Entrekin attempted to return to work, however, Fisher Scientific allegedly told her that Priority Medical Care had in fact added restrictions. (Verified Compl. ¶ 36.) Entrekin allegedly requested information regarding these restrictions, but Fisher Scientific supposedly refused to provide such information. (Id. ¶ 37.) Entrekin asserts that, if she had been able to return to work on December 8, 1999, she would have received the reinstatement of all benefits after twenty one days of work, four weeks of accrued vacation after one week of work, and full reinstatement, presumably to her position. (Id. ¶ 38.)

Plaintiff claims that approximately three weeks after her attempt to return to work, Deborah Sawidzial ("Sawidzial"), a human resources coordinator for Fisher Scientific, dispatched a certified letter to Entrekin stating that she was not permitted to return to work and that Entrekin must be evaluated by Dr. David Gallina ("Dr. Gallina"). (Id. ¶ 39; see also Verified Compl. Ex. H: Letter from Deb Sawidzial dated 12-28-99 ("Sawidzial Letter") at 1-2.*fn3) Sawidzial allegedly further required the release of Entrekin's medical records to Dr. Gallina. (Verified Compl. ¶ 40; Sawidzial Letter at 2; Verified Compl. Ex. H: Authorization to Release Medical Information from Patricia Entrekin dated 1-4-00.*fn4) Although Entrekin allegedly wanted Dr. Gallina's examination to occur immediately, the examination was scheduled for February 8, 2000 and did not actually occur until March 8, 2000. (Verified Compl. ¶¶ 40-41.) Entrekin states that Fisher Scientific informed her that, because of Dr. Gallina's findings, she could not return to work. (Id. ¶ 41.) According to the Verified Complaint, Fisher Scientific has refused to provide a copy of Dr. Gallina's report after numerous requests. (Id. ¶ 42.) Entrekin alleges that Fisher Scientific informed her that another evaluation was needed, reiterated that she could not return to work, and told her that, if she did return to work within fourteen weeks, approximately June 14, 2000, her employment would be terminated.*fn5 (Id. ¶ 43; see also Verified Compl. Ex. G: Letter from Susan Peet Rowley, M.D., dated 4-14-00.)

Entrekin alleges that Fisher Scientific's refusal to allow Entrekin to return to work even though she obtained clearance from her treating physician constitutes a violation of the New Jersey Law Against Discrimination ("NJLAD"). (Id. ¶ 44) She claims that, as a result of Fisher Scientific's conduct, "Entrekin has been deprived of her position at Fisher [Scientific], has not received any pay since December 1999, is not entitled to any benefits for any current company sponsored disability, will be terminated from her position and will lose all of her benefits which are related to employment at Fisher [Scientific]." (Id. ¶ 45.)

Entrekin's Verified Complaint contains four counts. Count One alleges that Fisher Scientific committed handicap discrimination in violation of the NJLAD because of the above conduct. (Id. ¶ 47.) Specifically, Entrekin alleges that Fisher Scientific refused to permit Entrekin to return to work when she was cleared to do so without restrictions, the sole basis for this refusal was Entrekin's handicap protected by the NJLAD, and such discrimination would not have occurred in the absence of this handicap. (Id. ¶¶ 47-51.) Count Two claims that Fisher Scientific retaliated against Entrekin for her exercise of civil rights and opposition to its harassing conduct in violation of New Jersey's public policy, specifically alleging that Entrekin's termination constitutes retaliation in violation of public policy. (Id. ¶¶ 54-55.) In Count Three, Entrekin alleges that Fisher Scientific's "extreme and outrageous" conduct was designed to and did, either intentionally or recklessly, cause Entrekin to suffer extreme emotional distress. (Id. ¶ 58.) Finally, Count Four states that Fisher Scientific subjected Entrekin to acts of reprisal in violation of the NJLAD. (Id. ¶ 61.) These acts of reprisal were allegedly taken in response to Entrekin's periods of disability protected under the NJLAD and known and approved by Fisher Scientific. (Id. ¶ 62.) The alleged acts of reprisal or retaliation are: (1) the refusal to allow Entrekin to return to work as permitted by Entrekin's treating physician, (2) the denial of pay, (3) the loss of current benefits, (4) the refusal to cease and desist all discriminatory conduct, and (5) the threat of termination if Entrekin fails to return to work even though Entrekin has refused to permit her to return to her job. (Id.)

The counts allege similar injuries and seek almost the identical relief. Count One alleges that, as a direct and proximate result of Fisher Scientific's actions, "plaintiff will be terminated, has lost benefits, has lost back pay to which she is entitled and has suffered severe emotional distress, pain and suffering, humiliation, embarrassment, loss of income, and other severe financial losses." (Verified Compl. ¶ 52.) Similarly, Count Two alleges that Entrekin has suffered "loss of pay, loss of benefits, has been threatened with termination and has suffered severe emotional distress, pain and suffering, humiliation, embarrassment, loss of income, and other severe financial losses. (Id. ¶ 56.) Count Three alleges that "plaintiff has suffered severe emotional distress, pain and suffering, humiliation, embarrassment, loss of income, and other severe financial losses." (Id. ¶ 59.) The first three counts demand an order requiring Fisher Scientific to:

A. Permit Patricia Entrekin to return to work immediately;

B. Reinstat[e] all of her benefits;

C. Provid[e] her with all back pay due and owing;

D. Cease and desist from all discriminatory conduct;

E. [Grant] such other and further relief as this Court deems just and proper including, but not limited to compensatory and punitive damages.

(Id. Counts One, Two, Three, Four.) Count Four demands the exact same relief, except the cessation of discriminatory conduct. (Id. Count Four.) According to Entrekin's brief in support of this motion, by allegedly being prevented from returning to work for over seven months, Entrekin lost more than $20,000.00 in back pay. (Pl., Patricia Entrekin's Br. in Supp. of Motion for Remand to State Court ("Pl.'s Br.") at 18.)

Along with her Verified Complaint, Entrekin also filed on May 23, 2000 with the Superior Court a motion, supported by affidavits from Entrekin and Dr. Rowley as well as a brief, for temporary restraints and permanent relief against Fisher Scientific. (Flaum Aff. ¶ 2 & Ex. B: Br. in Supp. of Pl.'s Order to Show Cause with Temporary Restraints dated 5-22-00 ("Pl.'s Order to Show Cause Br.") & Ex. C: Aff. of Patricia Entrekin ("Entrekin Aff.") dated 5-19-00 & Ex. D: Aff. of Susan Peet Rowley, M.D., dated 5-19-00 ("Dr. Rowley Aff.").) The Honorable Robert E. Guterl ("Judge Guterl") held two conference calls, on June 1, 2000 and June 5, 2000, regarding this motion. (Flaum Aff. ¶ 3.) Judge Guterl then issued an Order to Show Cause with Temporary Restraints, filed June 5, 2000 ("6-5-00 Order"), stating that Fisher Scientific shall show cause on July 10, 2000 why an order should not be issued providing for: (1) Entrekin's immediate reinstatement, (2) the payment of back pay to December 1, 1999, (3) the reinstatement of Entrekin's benefits retroactively to December 1, 1999, (4) the ceasing and desisting of discriminatory acts, and (5) additional relief considered just and equitable. (Flaum Aff. Ex E: Order to Show Cause with Temporary Restraints filed 6-5-00 ("6-5-00 Order") at 1-2; Flaum Aff. ¶ 3.) According to the affidavit of Richard P. Flaum, Esq., who is counsel for plaintiff ("Flaum Affidavit"), the 6-5-00 Order required Fisher Scientific to reinstate Entrekin immediately and to award her back pay and benefits as well as providing other relief. (Flaum Aff. ¶ 3.)

This 6-5-00 Order was amended on June 13, 2000, and a new Order to Show Cause with Temporary Restraints was filed ("6-13-00 Order") and faxed to counsel for Fisher Scientific on June 13, 2000. (Flaum Aff. ¶ 4 & Ex. F: Order to Show Cause with Temporary Restraints filed 6-13-00 ("6-13-00 Order").) This 6-13-00 Order provides that Fisher Scientific shall show cause on July 12, 2000 "why the . . . temporary restraints entered as of June 5, 2000 should be dissolved." (6-13-00 Order at 1-2.) Fisher Scientific, however, did not receive the faxed 6-13-00 Order, and it was supposedly re-faxed on June 14, 2000. (Flaum Aff. ¶ 5.)

According to the Flaum Affidavit, Entrekin returned to work at Fisher Scientific on June 14, 2000 but was required to watch safety films. (Flaum Aff. ¶ 6.) Flaum states that Fisher Scientific failed to permit Entrekin to work from June 15, 2000 through June 20, 2000 and, during this period, it required her to remain in a conference room without a telephone during the workday. (Id. ¶ 7.) Entrekin informed Fisher Scientific on June 20, 2000 that she needed to take off from work on June 21, 2000 to attend a court hearing in this matter, and she also requested a five-week vacation, which required management approval. (Id. ¶ 8.) Flaum avers that, regardless of the temporary restraint specifically requiring Fisher Scientific to cease and desist from all discriminatory conduct, Fisher Scientific mandated that Entrekin either provide a medical report regarding the absence or not be allowed to return to work. (Id. ¶ 9.) Flaum further avers that Fisher Scientific failed to comply with the Superior Court's requirement to provide back pay and fully reinstate Entrekin to her position. (Id.)

Fisher Scientific moved to vacate the temporary restraints. (Flaum Aff. ¶ 10 & Ex. H: Def.'s Notice of Mot. ("Def.'s Notice of Mot.").) After hearing argument on June 21, 2000, the Honorable Rosemarie Williams ("Judge Williams") issued another Order to Show Cause with Temporary Restraints ("7-3-00 Order") filed on July 3, 2000, requiring Fisher Scientific to show cause on July 12, 2000 why the temporary restraints entered June 5, 2000 should be dissolved, specifically that Entrekin be reinstated to her position with the effective date of June 5, 2000. (Flaum Aff. ¶¶ 10-11; Flaum Aff. Ex. I: Order to Show Cause with Temporary Restraints filed 7-3-00 ("7-3-00 Order") at 1-2.) Judge Williams specified that Fisher Scientific must approve Entrekin's vacation from June 21, 2000 through and including July 12, 2000. (7-3-00 Order at 2.) The 7-3-00 Order also explicitly required Fisher Scientific to provide Entrekin with back pay to December 1, 1999, retroactively reinstate benefits to December 1, 1999, terminate discriminatory activity against Entrekin, as well as provide any other just and equitable relief. (Id.)

Entrekin subsequently applied to the Law Division of the Superior Court to hold Fisher Scientific in contempt and obtain counsel fees because of its alleged violations of the Superior Court's 6-5-00 Order, 6-12-00 Order, and 7-4-00 Order. (Id. ¶ 12 & Ex. G: Br. in Supp. of Pl.'s Motion in Aid of Litigants Rights ("Pl.'s Litigant Rights Br.") at 1.) According to Entrekin's brief in support of the motion to remand, she sought over $10,000 in counsel fees in her litigant rights motion. (Pl., Patricia Entrekin's Br. in Supp. of Mot. for Remand to State Court ("Pl.'s Br.") at 19.)

According to an affidavit of Flaum submitted in support of Entrekin's reply letter brief ("Flaum Reply Affidavit"), the parties appeared before Judge Guterl on July 12, 2000 for argument regarding Entrekin's Order to Show Cause seeking such relief as job reinstatement, back pay, compensatory and punitive damages, and reinstatement of benefits. (Aff. of Richard P. Flaum, Esq., dated 10-26-00 ("Flaum Reply Aff.") ¶ 4.) Flaum avers that, at this July 12, 2000 hearing, Judge Guterl discussed with the parties the potential resolution of the case. (Id. ¶ 5.) According to Flaum, Entrekin and Fisher Scientific agreed on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.