UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
December 26, 2012
SYLVIA HEGEDUS, CATHY MCGUIRE, LILLIAN SWANSON, GLORIA J. HOFFMAN, AND SHOWBOAT ATLANTIC CITY OPERATING COMPANY, L.L.C., DEFENDANTS. CYNTHIA SIMS-FELTON 200 CROWN COURT EGG HARBOR TOWNSHIP, NJ 08234 APPEARING PRO SE REGINA C. HERTZIG CLEARY & JOSEM, LLP 1650 MARKET STREET PHILADELPHIA, PA 19103 ON BEHALF OF THE INDIVIDUAL DEFENDANTS CHRISTOPHER H. MILLS FISHER & PHILLIPS, LLP 430 MOUNTAIN AVENUE 3RD FLOOR MURRAY HILL, NJ 07974 ON BEHALF OF DEFENDANT SHOWBOAT ATLANTIC CITY OPERATING COMPANY, L.L.C.
The opinion of the court was delivered by: Hillman, District Judge
MEMORANDUM OPINION & ORDER TO SHOW CAUSE
WHEREAS plaintiff, Cynthia Sims-Felton, having filed a complaint against defendants alleging that her employer, Showboat Atlantic City Operating Company, L.L.C., operating as the Showboat Casino Hotel ("Showboat"), discriminated and retaliated against her, and her co-workers at Showboat: (1) defamed her by calling her racial slurs and making derogatory gestures, (2) falsely accused her of making a threatening remark, (3) harassed her, (4) slandered her, and (5) gave her a poor evaluation and a union grievance write-up based on these interactions*fn1 ; and
The individual defendants having filed a motion to dismiss*fn2 plaintiff's claims because plaintiff's state law claims are inextricably intertwined with her union's collective bargaining agreement, and they are therefore preempted by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185; and
The individual defendants arguing that because plaintiff's state law claims are preempted by the LMRA, she is required to first exhaust her contractually mandated grievance procedures prior to bringing suit; and
The individual defendants further arguing that plaintiff has not alleged that she exhausted the union's grievance procedures before she filed suit against them, and, thus, her claims must be dismissed*fn3 ; and
Plaintiff having opposed the individual defendants' motion to dismiss*fn4 ; but Since the time the individual defendants filed their motion, and Showboat filed its answer to plaintiff's complaint, the parties having attended a status conference with the magistrate judge; and Following that status conference, plaintiff having sent the Court a letter, wherein she (1) purports to withdraw her claims against Showboat in order to pursue the administrative procedures of the Equal Employment Opportunity Commission (EEOC), and (2) appears to withdraw the claims that must be brought pursuant to Section 301 of the LMRA*fn5 (see Docket No. 39); and
The Court noting that:
(1) Before filing a complaint, a plaintiff alleging any discriminatory employment practice must exhaust her administrative remedies by filing a charge with the EEOC, see 42 U.S.C. § 2000e--5(e)(1), and it does not appear that plaintiff has fulfilled that requirement; and
(2) Plaintiff's claims against her co-workers appear to be encompassed by her union's collective bargaining agreement, and thus fall under the purview of Section 301 of the LMRA; and
(3) Fed. R. Civ. P. 41(a)(1) governs the voluntary dismissal of actions, and it allows a plaintiff to voluntarily withdraw her complaint at any time prior to the filing of an answer or a motion for summary judgment, or by filing a stipulation of dismissal signed by all parties who have appeared; and
The Court finding that plaintiff may voluntarily dismiss her claims against the individual defendants, but that she can only dismiss her claims against Showboat by a stipulation signed by all parties; and
The Court further finding that it is not entirely clear if plaintiff has intended to voluntarily dismiss all claims against all parties; and
The Court also finding that if plaintiff does not voluntarily dismiss her claims, her claims may be dismissed for their substantive invalidity, as noted above*fn6 ;
IT IS HEREBY on this 26th day of December , 2012 ORDERED that plaintiff shall, within 10 days of the date of this Order, file a letter with the Court and on the docket advising whether plaintiff has agreed to voluntarily dismiss all claims against all parties, and, if not, which claims she continues to assert against which parties; and it is further
ORDERED that if plaintiff fails to file a response within 10 days, the Court will substantively address the individual defendants' motion to dismiss; and it is further
ORDERED that if plaintiff does respond, defendants shall have 10 days from the date of plaintiff's response to reply to plaintiff's submission.
At Camden, New Jersey
NOEL L. HILLMAN, U.S.D.J.