Boyle v. Carnegie-Mellon University, Civ. A. No. 84-2285.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: COHILL
• Citation: 648 F. Supp. 1318
• Parties: William BOYLE and Carrie Boyle, Plaintiffs, v. CARNEGIE-MELLON UNIVERSITY and John Kordesich, Defendants.
• Decision Date: 10 October 1985
• Docket Number: Civ. A. No. 84-2285.

648 F. Supp. 1318

William BOYLE and Carrie Boyle, Plaintiffs,
v.
CARNEGIE-MELLON UNIVERSITY and John Kordesich, Defendants.

Civ. A. No. 84-2285.

United States District Court, W.D. Pennsylvania.

October 10, 1985.

648 F. Supp. 1319

Allan J. Opsitnick, Hickton & Opsitnick, Pittsburgh, Pa., for plaintiffs.

Walter P. DeForest, Robert E. Sheeder, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendants.

OPINION^*

COHILL, Chief Judge.

Presently before us is Plaintiffs' Motion to Amend the Complaint, and, additionally, to remand this action to the Court of Common Pleas of Allegheny County, Pennsylvania.

This action was originally brought by Plaintiffs in state court, asserting claims for wrongful discharge, intentional infliction of emotional distress, defamation, misrepresentation, age discrimination, breach of contract, tortious interference with contractual relations, and loss of consortium. The Complaint alleges that Plaintiff, William

648 F. Supp. 1320

Boyle, an employee of Carnegie Mellon University ("CMU"), was wrongfully discharged in connection with alleged improper billings and theft, and because of age discrimination. Complaint, ¶¶ 10-12, 13. The Complaint also alleges "discrimination in rehiring." Id. ¶ 14

Defendants removed the case to this Court, basing removal on "Plaintiffs' assertion of age discrimination "in violation of the laws of the United States of America." Complaint, ¶ 13. The Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 621 et seq. prohibits such discrimination.

Plaintiffs have moved to dismiss from the complaint, by way of amendment, claims for defamation, age discrimination under both state and federal law, and interference with marital relations. Motion to Amend, ¶¶ 5, 6. We will grant the motion.

Plaintiffs have, in addition, moved for remand of the remaining claims to state court, based on two arguments. First, Plaintiffs assert that remand is appropriate under 28 U.S.C. § 1447(c), providing for remand of cases improvidently removed. Alternatively, it would appear, Plaintiffs argue that where a narrowing of issues results in the dismissal of the sole federal claim after removal, the Court should exercise its discretion to remand the pendent state claims. Defendants oppose remand.

DISCUSSION

Improvident Removal

Removal jurisdiction is derivative in nature. "If the state court lacks jurisdiction of the subject matter or of the parties, the Federal court acquires none, although it might in a like suit, originally brought there, have had jurisdiction." Lambert Run Coal Co. v. Baltimore & Ohio R.R., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). Whether removal was proper or "improvident" in the instant case depends on whether the ADEA is enforceable in state as well as federal courts. If a federal statute is enforceable in both state and federal courts, the action would clearly be removable under 28 U.S.C. § 1441(b).

In Kremer Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the Supreme Court left open the question of whether jurisdiction to entertain title VII cases is limited to federal courts. Id. at 479 n. 20, 102 S.Ct. at 1896 n. 20, 72 L.Ed.2d 262 (1982). The Court of Appeals for the Third Circuit has not, to our knowledge, addressed this question. While courts have come to opposite conclusions on this question, we adopt the reasoning of those courts which have held that nothing in the language or structure of title VII mandates a conclusion that jurisdiction is exclusive. See, e.g., Patzer v. Board of Regents, 577 F.Supp. 1553, 1559 (W.D.Wis.1984), rev'd on other grounds, 763 F.2d 851 (7th Cir.1985); Greene v. County School Board, 524 F.Supp. 43, 44-45 (E.D.Va.1981); Bennun v. Board of Governors, 413 F.Supp. 1274, 1280 (D.N.J.1976). We believe this reasoning is equally persuasive in cases brought under the ADEA. But see Dyer v. Greif Bros., Inc., 755 F.2d 1391, 1393 (9th Cir. 1985); Valenzuela v. Kraft, Inc., 739 F.2d 434, 435-36 (9th Cir.1984); Dickinson v. Chrysler Corp., 456 F.Supp. 43, 45-48 (E.D.Mich.1978)....