Moore v. DeBiase

• Decision Date: 20 June 1991
• Docket Number: Civ. A. No. 91-1423.
• Citation: 766 F. Supp. 1311
• Parties: Robert MOORE and Deborah Moore, His Wife, Plaintiffs, v. Joseph F. DeBIASE, John Gibney, Joseph Cummins, Louis Cippola, Thomas DeNapoli, Philip Ventriglia, Patrick Robinson, Cheryl O'Neill, Borough of Dunellen and Borough of Dunellen Police Department, Defendants.
• Court: U.S. District Court — District of New Jersey

766 F. Supp. 1311

Robert MOORE and Deborah Moore, His Wife, Plaintiffs, v. Joseph F. DeBIASE, John Gibney, Joseph Cummins, Louis Cippola, Thomas DeNapoli, Philip Ventriglia, Patrick Robinson, Cheryl O'Neill, Borough of Dunellen and Borough of Dunellen Police Department, Defendants.

Civ. A. No. 91-1423.

United States District Court, D. New Jersey.

June 20, 1991.

Barry A. Cooke, Blaustein & Wasserman, Woodbridge, N.J., for plaintiffs.

William H. Gazi, Foley, Gazi & Jorgensen, P.A., Iselin, N.J., for defendants John Gibney, Louis Cippola, Thomas DeNapoli, Philip Ventriglia, Cheryl O'Neill, Joseph Cummins, Borough of Dunellen and Borough of Dunellen Police Dept.

Joseph J. Benedict, Benedict, Altman & Swanson, New Brunswick, N.J., for defendant Joseph F. DeBiase.

Gerard H. Hanson, Hill Wallack, Princeton, N.J., for defendant Patrick A. Robinson.

OPINION

LECHNER, District Judge.

Introduction

This is an action brought by plaintiffs Robert Moore ("Moore") and Deborah Moore (collectively, the "Plaintiffs") against Joseph F. DeBiase ("DeBiase"), John Gibney ("Gibney"), Joseph Cummins ("Cummins"), Louis Cippola ("Cippola"), Thomas DeNapoli ("DeNapoli"), Philip Ventriglia ("Ventriglia"), Patrick Robinson ("Robinson"), Cheryl O'Neill ("O'Neill"), the Borough of Dunellen ("Dunellen") and the Dunellen Police Department (the "Police Department") (collectively, the "Defendants"). Currently before the court is the motion of Plaintiffs to remand this action to the superior court of the State of New Jersey.¹ For the reasons set forth below, the motion to remand is granted.

Facts and Procedural History

Plaintiffs filed their complaint (the "Complaint") in the Superior Court of the State of New Jersey, Law Division, Middlesex County, on 22 February 1991. Moore is and was at all relevant times a member of the Police Department. Complaint, ¶ 1. In addition, Moore served as president of the Dunellen Police Benevolent Association Local 146 (the "PBA"), the collective bargaining unit for Dunellen police officers. Id., ¶ 3. DeBiase is and was at all relevant times the Chief of Police of the Police Department. Id., ¶ 2. Gibney, Cummins, Cippola, Ventriglia, Robinson and O'Neill were at all relevant times publicly elected officials of Dunellen.²Id., ¶¶ 3-8. Dunellen is a municipality established under New Jersey law. Id., ¶ 9.

Plaintiffs brought suit against the Defendants for certain acts or omissions allegedly performed under color of New Jersey law. Id., ¶ 11. On or about 1 January 1988, DeBiase was promoted to the position of Chief of the Police Department. Plaintiffs allege DeBiase implemented a new work schedule and promoted his brother, who was also a member of the Police Department, to the position of Lieutenant. Id., First Count, ¶ 2. Subsequently, Moore, in his capacity as president of the PBA, filed a grievance against DeBiase, claiming the implementation of the new work schedule was an unfair labor practice.

The essence of Plaintiffs' Complaint centers on the allegations that the Defendants and particularly DeBiase initiated a campaign to discredit and terminate Moore in retaliation for the filing of the grievance against DeBiase. Plaintiffs allege DeBiase issued meritless reprimands of Moore and caused various investigations and intrusions into Moore's private affairs. Id., First Count, ¶ 6. In addition, DeBiase allegedly initiated a disciplinary proceeding against Moore. Id. Plaintiffs also allege Moore was wrongfully ordered to undergo a medical examination to determine whether he was medically fit for duty. Id., First Count, ¶¶ 7-9. Moore refused to submit to the examination and was thereafter suspended from duty.

After Moore was suspended, DeBiase filed a grievance against Moore for violating Police Department rules. DeBiase charged Moore chronically disobeyed his superiors, was guilty of habitual misconduct and failed to submit to a medical evaluation to determine his fitness for duty. Subsequently, DeBiase commenced disciplinary proceedings against Moore and sought his removal from the Police Department.

Plaintiffs then filed their Complaint which contains nineteen Counts.³ The first seven Counts and the Ninth Count are directed exclusively at DeBiase. In the First Count, Plaintiffs seek to recover from DeBiase for his allegedly malicious, intentional and wrongful suspension of Moore. In the Second Count, Plaintiffs seek to recover from DeBiase for the public embarrassment and ridicule Moore suffered as a result of his malicious and wrongful suspension. In the Third Count, Plaintiffs seek to recover from DeBiase for, among other things, DeBiase's attempts to undermine Moore's position as PBA president.

In the Fourth Count, Plaintiffs seek to recover from DeBiase for his abuse of authority in attempting to cause the termination of Moore. In the Fifth Count, Plaintiffs seek to recover from DeBiase for allegedly conspiring with other public officials in Dunellen to falsify and to prosecute charges against Moore. In the Sixth Count, Plaintiffs seek to recover from DeBiase for harm Moore suffered when DeBiase allegedly perjured himself during the disciplinary proceeding against Moore. In the Seventh Count, Plaintiffs seek to recover from DeBiase for defamation. In the Ninth Count, Plaintiffs seek to recover from DeBiase for allegedly attempting to intimidate Moore into terminating his position with the Police Department.

The following Counts are directed at various defendants. In the Eighth Count, Plaintiffs seek to recover from the Public Officials for refusing to lift Moore's suspension from the Police Department. In the Tenth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen and the Police Department for breaching an agreement to conduct the disciplinary proceeding against Moore in private and without public disclosure. In the Eleventh Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen, and the Police Department for tortiously interfering with Moore's contractual relations with Dunellen. In the Twelfth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen and the Police Department for discriminating against Moore because of his PBA activities.

The Thirteenth through Fifteenth Counts bring claims grounded in federal and/or state constitutional law. In the Thirteenth Count, Plaintiffs seek to recover from the Public Officials, Dunellen and the Police Department for negligently or intentionally permitting DeBiase to suspend Moore in violation of an unspecified constitution. In the Fourteenth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen and the Police Department for their deprivation, in violation of 42 U.S.C. § 1983, of Moore's rights, privileges and immunities secured by the United States Constitution and New Jersey law. In the Fifteenth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen and the Police Department for their conspiracy to violate 42 U.S.C. § 1983 under federal and state law.

In the Sixteenth Count, Plaintiffs seek to recover from Dunellen and the Police Department, on a respondeat superior theory, for the wrongful acts of their agents DeBiase and the Public Officials. In the Seventeenth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen and the Police Department for Moore's expenditures in defending himself against the allegedly fraudulent charges brought by defendants. In the Eighteenth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen and the Police Department for their conduct which resulted in a diminution of the quality of Moore's life. In the Nineteenth Count, Plaintiffs seek to recover from DeBiase, the Public Officials, Dunellen, and the Police Department for Deborah Moore's loss of Moore's consortium and services.

On or about 9 April 1991, the Removing Defendants removed this action from the Superior Court, pursuant to 28 U.S.C. §§ 1441(b) and 1446(b), based upon a federal question presented in the Complaint. Plaintiffs now move to remand this action back to the superior court pursuant to 28 U.S.C. § 1447(c). For the reasons set forth below, Plaintiffs' motion is granted.

Discussion

A. Remand Pursuant to 28 U.S.C. § 1447(c)

Under 28 U.S.C. § 1441(b), "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties...." Id. Section 1446(b) governs the procedure for removal.⁴ Because the Complaint alleges causes of action under 42 U.S.C. § 1983 for violations of the United States Constitution, it appears this action falls within the purview of section 1441(b).⁵ Subject matter jurisdiction appears to exist over Plaintiffs' purely state laws claims on the basis of pendent jurisdiction.⁶See Samaroo v. Samaroo, 743 F.Supp. 309, 315 (D.N.J. 1990) ("Section 1441(b) has been universally interpreted to permit removal of non-federal claims only if they are within the pendent jurisdiction of the Court."); 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3722 at 281 (1985) ("the doctrine of pendent jurisdiction ... is fully applicable to removal based on the existence of a federal question").

Plaintiffs move to remand this action under 28 U.S.C. § 1447(c). Section 1447(c) provides, in pertinent part: "If at any time before the final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Id. As indicated above, however, it appears subject matter jurisdiction exists over the section 1983 claims asserted by Plaintiffs. Accordingly, remand under section 1447(c) is not appropriate.

Section 1447(c), however, is not the only statutory basis for remand. Under 28 U.S.C. § 1441(c), a district court has the discretion to remand "all...