United States District Court, D. New Jersey
McNULTY UNITED STATES DISTRICT JUDGE.
matter comes before the Court on motions of both parties.
Defendants Public Service Electric and Gas Company, and
Public Service Enterprise Group, Inc. (collectively,
"PSE&G") removed this action from the Superior
Court of New Jersey, Essex County, on the basis that seven
counts of Barone's nine-count complaint are preempted by
§ 301 of the Labor-Management Relations Act
("LMRA"). PSE&G then filed a motion for partial
dismissal of the original complaint based on preemption under
§301 and under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim. (DE 9). Plaintiff Joseph Barone
responded by moving to amend his complaint under Federal Rule
of Civil Procedure 15(a)(2) to remove all federal questions,
and to remand the case to state court. (DE 15).
reasons provided below, Barone's motion to amend the
complaint and to remand this action to the Superior Court of
New Jersey, Essex County is granted. (DE 15). PSE&G's
motion to dismiss the original complaint is terminated as
moot. (DE 9).
worked for PSE&G as a substation operator from 2004 until
his termination on October 25, 2016. (AC ¶¶8, 69,
66). At the time of his employment, Barone was a member of
Local Union 94 of the International Brotherhood of Electric
Engineers ("Local 94"). (DE 9-2, ¶2
(Certification of Joan Wentura)). Local 94 had a collective
bargaining agreement with PSE&G that was effective May 1,
2013 through April 30, 2017. (Id. at ¶3).
suffered a work-related injury on November 30, 2013, when he
turned a breaker control handle to restore power to customers
in a particular area. (AC ¶¶ 14-23). He immediately
went out on medical leave, and never returned to work. (AC
¶¶23» 65-69). After he went out on leave,
Barone filed a workers' compensation claim on June 5,
2014, and underwent three separate spinal surgeries for
injuries related to his workplace accident. (AC ¶¶
around September of 2016, another PSE&G employee, Richard
Archer "made slanderous statements and spread false
rumors about Barone to other PSE&G employees, including
supervisors." (AC ¶¶48-49). Archer made
comments "the Barone had domestic disputes with his
mother and wife, that he had been arrested, and that he had a
criminal history." (AC ¶51). Upon learning about
Archer's statements, Barone filed an internal complaint
with PSE&G on September 22, 2016. (AC ¶¶52-54).
PSE&G determined that Barone's complaint was
unsubstantiated. (AC ¶61)-
October 20, 2016, three years after Barone's initial
accident, Barone's doctor cleared him to return to work,
with certain limitations. (AC ¶¶65, 67, 70).
Barone, however, was unable to work in his previous position.
(AC ¶66). Five days later, PSE&G terminated
Barone's employment, claiming that there were no other
positions available for which Barone was qualified with his
medical restrictions. (AC ¶69). Barone's doctor,
thereafter, requested an extension of his medical leave,
which PSE&G refused. (AC ¶¶71-74).
October 25, 2018, Barone filed a nine-count complaint in the
Superior Court of New Jersey, Essex County. (DE 1-1). The
first four counts of the complaint alleged violations of the
New Jersey Law Against Discrimination
("NJLAD"). (AC ¶¶75-104). The complaint
also alleged wrongful discharge in violation of public policy
(fifth count); wrongful discharge in violation of company
policies (sixth count); breach of an express and implied
employment contract (seventh count); breach of the covenant
of good faith and fair dealing (eighth count); and tortious
interference with express and implied employment contract
(ninth count). (AC ¶¶ 105-138).
November 29, 2018, PSE&G removed the case to this Court,
contending that the CBA governs the parties' relationship
and that Barone's contract claims for breach of an
express and implied employment contract (seventh count) and
breach of the covenant of good faith and fair dealing (eight
count) were preempted under the LMRA. (DE 1, ¶9).
PSE&G also asserted that "the other claims . . .
plainly implicate the terms and conditions of Plaintiffs
employment, which are matters addressed in the CBA." (DE
December 20, 2018, PSE&G filed a motion for partial
dismissal of the complaint based on §301 preemption and
Rule 12(b)(6). Thereafter, Barone requested a stay of
PSE&G's motion to dismiss and indicated that he
intended to file a motion to amend the complaint to remove
the preempted claims. (DE 12).
January 22, 2019, Barone filed a motion to amend the
complaint and to remand this action to state court. (DE 15).
Barone removed the sixth (wrongful discharge in violation of
company policies), seventh (breach of express and implied
employment contract), and eighth (breach of the covenant of
good faith and fair dealing) counts from the complaint. The
rest of the state law claims, he says, are not preempted.
Barone argues that remand is appropriate because removal of
these three claims from the complaint deprives the Court of
subject matter jurisdiction. PSE&G has opposed
Barone's motion. (DE 16).
Motion to Amend the Complaint
Rule of Civil Procedure 15(a)(2) provides that "a party
may amend its pleading only with the opposing party's
written consent or the court's leave." The Third
Circuit has adopted a liberal approach in applying Rule 15 to
ensure that "a particular claim will be decided on the
merits rather than on technicalities." Dole v. Arco
Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990).
to amend is to be freely granted unless there is a reason for
denial, 'such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.™ Conception
v. CFG Health Sys. LLC, 2013 U.S. Dist. LEXIS 159134, at
*3-4 (D.N.J. Nov. 6, 2013) (quoting Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222, (1962));
see also Arthur u. Maersk, 434 F.3d 196,
204 (3d. Cir. 2006) ("Among the factors that may justify
denial of leave to amend are undue delay, bad faith, and
passage of time, without more, does not require that a motion
to amend a complaint be denied; however, at some point, the
delay will become 'undue,' placing an unwarranted
burden on the court, or will become 'prejudicial,'
placing an unfair burden on the opposing party."
Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir.
1984). Where no prejudice to defendants has been
demonstrated, the Court should exercise its discretion to
grant the motion to amend the complaint. See Lorenz v.
CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (holding
that prejudice to non-moving parry is the "touchstone
for the denial of the amendment."). "The burden is
generally on the party opposing the amendment to demonstrate
why the amendment should not be permitted." Luppino
v. Mercedes-Benz USA, LLC, 2012 WL 850743, at *2 (D.N.J.
Mar. 8, 2012).
for purposes of determining whether to allow the proposed
amendments, involves serious impairment of the
non-movant's ability to present its case." Dente
v. Saxon Mortg., 2012 U.S. Dist. LEXIS 66588, at *6
(D.N.J. May 11, 2012) (citation omitted) ("Incidental
prejudice to the non-moving party is not a sufficient basis
for denial of an amendment; prejudice becomes
"undue' only when the non-moving party shows that it
would be unfairly disadvantaged or deprived of the
opportunity to present facts or evidence that it would have
offered."); see also McRobie v. Credit Prot.
Ass'n, 2018 U.S. Dist. LEXIS 185419, at *5 (E.D. Pa.
Oct. 29, 2018) ("Specifically, courts consider whether
the amendment would force the opponent to expend significant
additional resources to conduct discovery and prepare for
trial, as well as whether it would significantly delay
resolution of the action." (citation omitted)).
has not argued or otherwise suggested that the proposed
amendments would impair its ability to present its case or
that it will be foreclosed from advancing certain arguments
as a result of permitting the proposed amendment. Notably, at
no point has PSE&G argued that it will be prejudiced by
the filing of the Amended Complaint. Moreover, this case is
at the earliest stages. The parties have not yet had a Rule
16 conference or engaged in any discovery.
Circuit has adopted a liberal approach in granting motions to
amend. Barone's motion to amend the ...