The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on plaintiff's motion to vacate this Court's Order filed September 26, 2002 which found removal jurisdiction based on federal question jurisdiction. Plaintiff argues that the order should be vacated based on the November 5, 2002 decision of the United States Supreme Court in Syngenta Crop Protection, Inc. v. Henson, 123 S. Ct. 366 (2002). This Court disagrees and will deny plaintiff's motion.
This matter involves two integrally related actions. The first was filed in this federal court in 1996 alleging violations of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Menoken v. Standard Forms, Inc., et al., Civil Number 96-1774 (JBS). A final judgment was entered in plaintiff's favor as to his FMLA claim in the amount of $27,200.00, and denying his claim for liquidated damages under the FMLA, after having granted summary judgment in favor of defendants on plaintiff's ADA claims. An appeal followed, and the United States Court of Appeals for the Third Circuit affirmed all rulings of this Court from which the plaintiff appealed, reversed this Court's finding of FMLA violations, and set aside this Court's award of attorney's fees in connection with the FMLA. Menoken v. Standard Forms, Inc., et al., App. Nos. 00-2102/2198/2652 (3d Cir. Aug. 30, 2001). Thus, plaintiff prevailed on none of his claims and the final judgment was entered after remand on November 2, 2001.
The second action was filed on June 10, 2002 in state court alleging tortious interference with prospective economic advantage and fraudulent concealment of evidence during the first federal action by the defendants and their attorneys. Menoken v. John T. McNamara, et al., No. L-4967-02. Defendants filed a notice of removal of the state action on July 12, 2002. This Court raised the issue of subject matter jurisdiction sua sponte because the parties conceded that they did not have diversity of citizenship and because the complaint included state law claims. After considering the arguments of the parties, this Court found that it had removal jurisdiction over the action because it had federal question jurisdiction under 28 U.S.C. § 1331. (Slip Op. at 7.) The Court noted that plaintiff's complaint, while containing state claims, actually presented a federal question because federal law supplied a "necessary element" for plaintiff's recovery. (Slip Op. at 9-10, citing United Jersey Banks v. Parell, 283 F.2d 360, 366-67 (3d Cir. 1986) and Federated Dep't Stores v. Moitie, 452 U.S. 394, 397 n.2 (1981)). The Court found that federal question jurisdiction arose from two independent sources, namely, Rule 60(b), Fed. R. Civ. P. (because plaintiff's suit necessarily seeks to nullify a federal court judgment on grounds of fraud in the litigation process, citing Villarreal v. Brown Express, Inc., 529 F.2d 1219, 1221 (5th Cir. 1976), inter alia), and "because an essential ingredient for recovery upon plaintiff's claim against any of these named defendants requires proof that plaintiff's underlying federal claims were meritorious and that final judgment on those claims must be set aside." (Slip Op. at 14.)
On October 9, 2002, despite this Court's finding of subject matter jurisdiction, plaintiff filed a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41, stating that he did "not have the financial resources to prosecute this matter through an appeal." [Docket Item 17-1.] On November 5, 2002, the United States Supreme Court decided Syngenta Crop Protection v. Henson, 123 S. Ct. 366 (2002). On January 16, 2003, plaintiff filed the present motion for relief from the September 26, 2002 order, arguing that the Henson decision "ma[de] clear that this Court erred in relying upon Rule 60(b) as a basis for asserting jurisdiction under the removal statute." (Pl.'s Br. at 1.)
Plaintiff seeks relief from this Court's September 26, 2002 Order pursuant to Fed. R. Civ. P. 60(b)(4), (5), and (6), *fn1 arguing that the recent Supreme Court decision in Syngenta Crop Protection v. Henson, 123 S. Ct. 366 (2002) shows that this Court's decision was flawed. Defendants argue that this Court should deny the motion (A) because it is procedurally flawed, and (B) because this Court's prior order is not affected by the Henson decision. For the reasons that follow, this Court finds that this motion is procedurally flawed and that this Court's prior decision finding federal subject matter jurisdiction over plaintiff's case remains valid after Henson.
A. Procedural Requirements of Rule 60(b) Motion
Defendants first argue that plaintiff's motion is procedurally flawed because it does not seek relief from a "final judgment." Plaintiff, however, argues that this Court should consider its order to be a final judgment because it caused him to voluntarily dismiss his complaint.
Rule 60(b) expressly requires a "final judgment." The Advisory Committee explained that:
[t]he addition of the qualifying word "final" emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
The Third Circuit has therefore found that interlocutory orders, such as "discovery order[s] or similarly preliminary step[s] in litigation being conducted in the district court" are not within the scope of Rule 60(b). Torres v. Chater, 125 F.3d 166, 168 (3d Cir. 1997).
Here, the September 26, 2002 order was clearly interlocutory as it was the very first step in litigation conducted in the district court. Before the Court could consider the merits of the action, the Court needed to determine whether it had subject matter jurisdiction to do so. The Court's findings were, under a practical and technical perspective, the beginning of plaintiff's litigation. Moreover, an order denying remand to the state court, finding removal was proper, is generally not appealable as a final order. Spring City Corp. v. Am. Buildings Co., 193 F.3d 165, (3d Cir. 1999) (citing Chicago Rock Island & Pack R. Co. v. Stude, 346 U.S. ...