United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter is before the Court on a motion for remand brought by
Plaintiff. [ECF No. 4].
Tabitha Faronea, filed this action against Defendant Alcoeur
Gardens at Toms River, LLC ("Alcoeur"), on October
5, 2017 in the New Jersey Superior Court, Law Division, Ocean
County. (ECF No. 1-6). Defendant was served on October 24,
2017. Defendant filed a notice of Removal on November 16,
2017 based on original jurisdiction under 28 U.S.C. 1331,
arguing that the action arises under the Family and Medical
Leave Act of 1983, 29 U.S.C. 2601, et seq. based on the
allegations as pled on the face of the Complaint (ECF No.1).
On November 22, 2017, Plaintiff filed a motion to remand the
matter to state court, arguing that removal was improper
because the causes of action in the Complaint arise solely
from state law. Plaintiff brings the following counts in her
Count I: Violation of New Jersey's Law against
Discrimination, N.J.S.A. 10-5-1, Et seq.
Count II: Violation of NJFLA, N.J.S.A. 34:11B1, et seq.
brief, Plaintiff was hired as a full-time Certified Home
Health Aide ("CHHA") at Alcoeur and worked there
for five years until she was terminated in October 2016.
(Compl., ¶4). While employed, Plaintiff became pregnant
and communicated it to her employer. Her maternity leave was
approved to begin on July 30, 2016 and end on November 2,
2016. This was her second child during her employment at
Alcoeur. (Compl., ¶5; ¶7). On October 18, 2016,
Plaintiff contacted Alcoeur and notified them that she wished
to extend her leave and that she would be applying for an
extension through both the FMLA and the NJFLA and that her
expected return date would be in January 2017. (Id.,
¶8). On November 2, 2016, Plaintiff applied for extended
leave under FMLA and was deemed eligible. (Id.,
¶9).). Plaintiff subsequently received two letters from
Defendant on November 4, 2016. The first letter, dated
October 18, 2016 stated that "due to you[r] phone call
today letting us know you won't be returning to work your
[insurance coverage] will be terminated." (Compl. 10).
The second letter dated October 28, 2016, indicated that her
health insurance was being terminated effective October 18,
2016 and addressed Plaintiffs right to elect continuing
insurance coverage under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"). On the form, under
reasons for the claimant's right to seek COBRA, the
checkbox "End of employment" was already marked.
(Id.). After receiving the letters on November 4,
2016, Plaintiff contacted Defendant and was reassured by Ms.
Massa that she was not being terminated and was still
employed. (Id., ¶11). On November 7, 2016,
Plaintiff followed up again regarding her employment status.
She spoke with Ms. Massa again, who informed her that she was
not on the renewal list for insurance because she was no
longer an employee identified on the "employee
list." (Id., ¶13). It was ultimately
confirmed that Plaintiff was terminated. (Id.
action that has been removed to federal court can be remanded
to state court, pursuant to 28 U.S.C. § 1447(c), if the
removal procedure was defective. Section 1447(c) states, in
relevant part, that "[a] motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded." Moreover, under Section 1446(a), when a
defendant seeks to remove a civil action from State court, he
or she must file a notice of removal, "containing a
short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders
served upon such defendant or defendants in such
action." According to the Third Circuit, the "party
asserting jurisdiction bears the burden of showing that at
all stages of the litigation the case is properly before the
federal court." Samuel-Bassett v. Kia Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004). Consequently, on
a motion to remand, the burden of demonstrating a proper
basis for removal remains with the removing party. See
Carroll v. United Air Lines, 7 F.Supp.2d 516, 519
(D.N.J. 1998) ("When confronted with a motion to remand,
the removing party has the burden of establishing the
propriety of removal."). A defendant may remove a claim
from a state court to federal district court if the district
court has original jurisdiction. See 28 U.S.C.
1441(a). "[District courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331.
motion to remand is timely. Plaintiff contends that removal
was improper because the cause of action arises purely out of
state law claims, as evident on the face of the Complaint.
Plaintiffs contention, Defendant points to certain sections
of the Complaint which it contends places FMLA at issue. For
example, paragraphs 8 and 16 of the Complaint refer to the
FMLA. They read respectively:
On October 18, 2016, Plaintiff contacted Alcoeur and notified
them that she wished to extent her leave to care for her
newborn child that she would be applying for same though both
the Family and Medical Leave Act of 1983
("FMLA") and the New Jersey Family Leave Act
Based on the foregoing, it is clear that Plaintiff was
discriminated against and terminated solely as a result of
her pregnancy and for seeking to rely on her rights under the
FMLA and NJFLA.
argument, Plaintiff clarified that paragraphs 8 and 16 are