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Bongiovanni v. Kimball Medical Center

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


October 4, 2006

KATHLEEN BONGIOVANNI, ET AL., PLAINTIFFS,
v.
KIMBALL MEDICAL CENTER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Mary L. Cooper United States District Judge

MEMORANDUM OPINION

THE COURT ordering the parties to show cause why (1) the complaint insofar as it asserts claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, should not be dismissed for lack of jurisdiction, and (2) the action insofar as it concerns claims under state law should not be remanded to New Jersey state court for lack of jurisdiction (dkt. entry nos. 3 & 7); and the plaintiffs bringing this action in state court to recover damages for violations of the ADEA and state law (Compl.); and the defendants removing the action under 28 U.S.C. § ("Section") 1331 based on the ADEA claims (Rmv. Not.); and the Court, sua sponte, considering dismissal of the ADEA claims and remand of the state law claims, see Fed.R.Civ.P. 12(h)(3), see also 28 U.S.C. §§ 1446(a), 1447(c);*fn1 and

IT APPEARING that a plaintiff under the ADEA must (1) exhaust administrative remedies before commencing an action in any court, (2) receive notice of the right to sue from the Equal Employment Opportunity Commission or appropriate agency, and (3) be within the protected class, see McCray v. Corry Mfg. Co., 61 F.3d 224, 228 (3d Cir. 1995) (noting ADEA amended to conform time limits for filing civil action to those for Title VII and to require notice of right to sue), see also 29 U.S.C. §§ 626(d)-(e), 631, Horvath v. Rimtec Corp., 102 F.Supp.2d 219, 230 (D.N.J. 2000);*fn2 and the plaintiffs here failing to allege that they have exhausted administrative remedies, have received notice of the right to sue, and are within the ADEA-protected class; and

THE COURT thus advising the parties that the Court intended to (1) dismiss the ADEA claims for lack of jurisdiction, and (2) remand the remaining state law claims - assuming the ADEA claims were dismissed - unless the parties demonstrated there is jurisdiction here (dkt. entry no. 3); and the Court directing the parties, if attempting to demonstrate jurisdiction, to submit (1) a copy of the charge sent by the plaintiffs to the appropriate agency, (2) proof of exhaustion of administrative remedies by the plaintiffs, (3) proof of notice of the right to sue, and (4) proof that the plaintiffs are within the ADEA-protected class (id.); and the Court advising the plaintiffs that a failure to strictly abide by the Court's directives, or an application for time to comply with jurisdictional requirements, would result in the dismissal of the ADEA claims (id.); and

THE DEFENDANTS, in response, agreeing that the Court should dismiss the ADEA claims (dkt. entry no. 5); and the plaintiffs - despite being (1) granted an extension of time until September 22, 2006 to respond (dkt. entry no. 7), and (2) advised of the extension in a telephone call from Chambers directly - failing to respond to the Court's inquiry; and thus the Court intending to (1) grant the order to show cause, (2) dismiss the ADEA claims for lack of jurisdiction, and (3) remand the remaining state law claims, see 28 U.S.C. § 1367(c)(3); and for good cause appearing, the Court will issue an appropriate order and judgment.


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