Wilson v. State of New Jersey et al

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.March 20, 2017

- 1 - CHISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants State of New Jersey Department of Corrections, Bayside State Prison, Erin Nardelli, William Varrell, William Saraceni, and Daniel Opperman By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF CAMDEN MELANIE WILSON, Plaintiff, v. STATE OF NEW JERSEY; THE NEW JERSEY DEPARTMENT OF CORRECTIONS; BAYSIDE STATE PRISON; COUNTY OF CUMBERLAND; CHARLES EGBERT; ERIN NARDELLI; WILLIAM VARRELL; WILLIAM SARACENI; DANIEL OPPERMAN, et al., Defendants. Hon. Robert B. Kugler, U.S.D.J. Hon. Joel Schneider, U.S.M.J. Civil Action No. 1:16-cv-07915 (RBK-JS) NOTICE OF MOTION TO DISMISS COUNTS 3 AND 4 OF PLAINTIFF’S FIRST AMENDED COMPLAINT AGAINST DEFENDANTS, STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS AND BAYSIDE STATE PRISON PLEASE TAKE NOTICE that on April 17, 2017, or at such other time as it may please the Court, the undersigned Christopher S. Porrino, Attorney General of New Jersey, by Deputy Attorney General Joel Clymer appearing for Defendants, State of New Jersey Department of Corrections and Bayside State Prison shall move for entry of an Order partially dismissing Case 1:16-cv-07915-RBK-JS Document 27 Filed 03/20/17 Page 1 of 2 PageID: 208 - 2 - Plaintiff’s First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); PLEASE TAKE FURTHER NOTICE that Defendants will rely upon the Brief and Certification of Joel Clymer submitted in support of this Motion. Oral argument is requested in the event this Motion is opposed. A proposed form of Order is submitted herewith. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: /s/ Joel Clymer Joel Clymer Deputy Attorney General DATED: March 20, 2017 Case 1:16-cv-07915-RBK-JS Document 27 Filed 03/20/17 Page 2 of 2 PageID: 209 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF CAMDEN MELANIE WILSON, Plaintiff, v. STATE OF NEW JERSEY; THE NEW JERSEY DEPARTMENT OF CORRECTIONS; BAYSIDE STATE PRISON; COUNTY OF CUMBERLAND; CHARLES EGBERT; ERIN NARDELLI; WILLIAM VARRELL; WILLIAM SARACENI; DANIEL OPPERMAN, et al., Defendants. Hon. Robert B. Kugler, U.S.D.J. Hon. Joel Schneider, U.S.M.J. Civil Action No. 1:16-cv-07915 (RBK-JS) _________________________________________________________________________________ DEFENDANTS STATE OF NEW JERSEY, DEPARTMENT OF CORRECTIONS AND BAYSIDE STATE PRISON’S BRIEF IN SUPPORT OF MOTION TO DISMISS COUNTS 3 AND 4 OF PLAINTIFF’S FIRST AMENDED COMPLAINT, PURSUANT TO FED. R. CIV. P. 12(b)(1) ____________________and 12(b)(6) RETURNABLE: APRIL 17, 2017______________________ CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants New Jersey Department of Corrections, Bayside State Prison, Erin Nardelli, William Varrell, Willaim Saraceni, & Daniel Opperman By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 1 of 15 PageID: 210 i TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 PROCEDURAL HISTORY AND STATEMENT OF FACTS.......................................................2 STANDARD OF REVIEW .............................................................................................................3 MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) ............................3 LEGAL ARGUMENT .....................................................................................................................5 POINT I: COUNT 3 OF PLAINTIFF’S FIRST AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE STATE ENTITY DEFENDANTS ARE ENTITLED TO SOVEREIGN IMMUNITY ........................................................................5 POINT II: COUNT 4 OF PLAINTIFF’S FIRST AMENDED COMPLAINT ALLEGING VIOLATIONS OF THE FLSA SHOULD BE DISMISSED BECAUSE DEFENDANTS ARE IMMUNE IN BOTH STATE AND FEDERAL COURT .................................................................................................................................9 CONCLUSION ..............................................................................................................................11 Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 2 of 15 PageID: 211 ii TABLE OF AUTHORITIES Federal Cases Page No. Alden v. Maine, 527 U.S. 706 (1999) ..................................................................................... 10, 11 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) .......................................................... 5, 6 Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690 (3d Cir. 1996) ................................................ 4 College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ............................................................................................................................................. 6 Edelman v. Jordan, 415 U.S. 651 (1974) ........................................................................................ 5 Garcia v. The Richard Stockton College of New Jersey, 210 F. Supp. 2d 545 (D.N.J. 2002).......................................................................................................................... 6, 7, 8 Gould Elecs., Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) .............................................. 4, 5 Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406 (3d Cir. 1991) ............................................. 4 Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002) ............. 6 Lombardo v. Pennsylvania Department of Public Welfare, 540 F.3d 190 (3d Cir. 2008) ....................................................................................................................... 6, 7, 11 Minotti v. Lensink, 798 F.2d 607 (2d Cir. 1986) ........................................................................ 5, 6 Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977). .................................... 4 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ................................................ 8 Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002) ........................................................... 8 Smolow v. Hafer, 353 F. Supp. 2d 561 (E.D. Pa. 2005). ................................................................ 4 State Cases Allen v. Fauver, 167 N.J. 69 (2001) ....................................................................................... 10, 11 Federal Statutes U.S.C.S. §201, et seq. ................................................................................................................... 10 Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 3 of 15 PageID: 212 iii Federal Rules Fed. R. Civ. P. 12(b)(6)............................................................................................................. 3, 11 Fed. R. Civ. P. 12(h)(3)................................................................................................................... 4 State Statutes N.J.S.A. 34:11B-11 ......................................................................................................................... 7 N.J.S.A. 34:11-56(a), et seq. ........................................................................................................... 3 Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 4 of 15 PageID: 213 1 PRELIMINARY STATEMENT Defendants, Department of Corrections (hereinafter, “DOC”) and Bayside State Prison (hereinafter, “BSP”) (referred herein collectively as “State Entity Defendants”), move to dismiss Counts 3 and 4 of Plaintiff, Melanie Wilson’s First Amended Complaint, in lieu of filing an Answer, pursuant to Federal Rule of Civil Procedure 12(b)(1). 1 On September 1, 2016, Plaintiff filed a Complaint in New Jersey Superior Court alleging retaliation in violation of the New Jersey Law Against Discrimination (hereinafter, “NJLAD”) and Title VII of the Civil Rights Act of 1964 (see Docket Entry No. 1, Pl. Compl., at ¶¶34-36), violations of the self-care provisions of the Family Medical Leave Act (hereinafter, “FMLA”) (see Docket Entry No. 1, Pl. Compl., at ¶¶37-41), and violation of the New Jersey Wage and Hour Law (see Docket Entry No. 1, Pl. Compl., at ¶¶42-44). State Entity Defendants removed Plaintiff’s Complaint to Federal Court on October 27, 2016. (See Docket Entry No. 1). Plaintiff filed her First Amended Complaint on February 17, 2017. (See Docket Entry No. 21). Plaintiff’s First Amended Complaint replaces her causes of action under the FMLA and the New Jersey Wage and Hour Law with causes of action under the New Jersey Family Leave Act (hereinafter, “NJFLA”) (Count 3) and the Fair Labor Standards Act (hereinafter, “FLSA”) (Count 4) respectively. (See Docket Entry No. 21, Ex. A, Pl. 1st Amend. Compl., at ¶¶34-44). Although State Entity Defendants removed this matter to Federal Court, they did so only with respect to the claims asserted in Plaintiff’s original Complaint. Plaintiff now asserts a claim under the NJFLA in her First Amended Complaint for the first time in Federal Court (count 3). State Entity Defendants are therefore immune in Federal Court from suit under Plaintiff’s new NJFLA claim because State Entity Defendants did not intentionally waive immunity to suit 1 This motion was filed on behalf of the named State Entity Defendants, DOC and BSP only. An Answer was filed on behalf of the named Defendants, Erin Nardelli, William Varrell, William Saraceni, and Daniel Opperman. Defendant Charles Egbert was not served in this matter. Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 5 of 15 PageID: 214 2 under the NJFLA when they initially removed this matter to Federal Court. Therefore, Count 3 of Plaintiff’s First Amended Complaint should be dismissed against State Entity Defendants. Count 4 of Plaintiff’s First Amended Complaint alleging a claim under the FLSA for the first time in Federal Court should be dismissed for the same reason. State Entity Defendants did not waive immunity to all other Federal law claims that they enjoyed the benefit of immunity from suit in State and Federal Court when it removed this action. Count 4 of Plaintiff’s First Amended Complaint contains a new allegation under the FLSA. However, State Entity Defendants are immune to suit in both state and Federal Court to suit under the FLSA. Moreover, State Entity Defendants retained all defenses from liability to suit under the FLSA that they enjoyed in State court. Because State Entity Defendants are immune to suit under the FLSA in State court, they may assert that defense in Federal Court despite removal of this action. State Entity Defendants now assert their State court defense of immunity. Therefore, Count 4 of Plaintiff’s First Amended Complaint should be dismissed against State Entity Defendants. Thus, State Entity Defendants respectfully request that the Court dismiss counts 3 and 4 of Plaintiff’s First Amended Complaint against them. PROCEDURAL HISTORY AND STATEMENT OF FACTS 2 Plaintiff is currently an employee of DOC and BSP (See Docket entry No. 1, Ex. A, Pl. Compl., at ¶1). Plaintiff filed a Complaint in the Superior Court of New Jersey on September 1, 2016. (See Docket Entry No. 1). State Entity Defendants removed Plaintiff’s Complaint to Federal Court on October 27, 2016. (See Docket Entry No. 1). Plaintiff’s Complaint alleged the following claims: 2 Because the procedural history and relevant facts are closely related, they have been consolidated for the convenience of the court. Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 6 of 15 PageID: 215 3  Count 1 – Retaliation in violation of the New Jersey Law Against Discrimination;  Count 2 – Retaliation in violation of Title VII of the Civil Rights Act of 1964;  Count 3 – Violation of the self-care provision of the Family Medical Leave Act;  Count 4 – Violation of the New Jersey Wage and Hour Law, N.J.S.A. §34:11-56(a), et seq. (See Docket Entry No. 1). Plaintiff’s First Amended Complaint, filed on February 17, 2017, replaces her causes of action under the FMLA and the New Jersey Wage and Hour Law with causes of action under the New Jersey Family Leave Act (hereinafter, “NJFLA”) (Count 3) and the Fair Labor Standards Act (hereinafter, “FLSA”) (Count 4). (See Docket Entry No. 14, Ex. A, Pl. 1st Amend Compl., at ¶¶34-44). State Entity Defendants now respectfully request that this Court dismiss Counts 3 and 4 of Plaintiff’s First Amended Complaint against them pursuant to Federal Rules of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). STANDARD OF REVIEW MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)._______________________________________ State Entity Defendants seek dismissal of Plaintiff’s Complaint because the Court lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). If a court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). Insofar as Plaintiff asserts claims against the NJDOC and BSP as State entities, State Entity Defendants are entitled to Eleventh Amendment sovereign immunity from liability. See Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 7 of 15 PageID: 216 4 Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996) (stating that the “Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction”). The Third Circuit has held that an Eleventh Amendment defense is properly addressed in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) rather than 12(b)(6), “caution[ing] against treating a Rule 12(b)(1) motion as a Rule 12(b)(6) motion and reaching the merits of the claims.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). A District Court, in considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), must distinguish between facial and factual challenges to its subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). “In a facial attack, a defendant argues that the plaintiff did not properly plead jurisdiction . . . [whereas] a ‘factual’ attack asserts that jurisdiction is lacking on the basis of facts outside of the pleadings . . . .” Smolow v. Hafer, 353 F. Supp. 2d 561, 566 (E.D. Pa. 2005). For either category of attack, a plaintiff has the burden of proving jurisdiction. In the instant matter, State Entity Defendants assert that this Court lacks jurisdiction to hear Counts 3 and 4 of Plaintiff’s First Amended Complaint because the Eleventh Amendment’s sovereign immunity shields them from liability. Thus, a factual analysis is unnecessary because a jurisdictional argument is a facial attack. Although the Court should consider the allegations in the light most favorable to Plaintiff, Plaintiff bears the burden of proving that the Court has jurisdiction. Gould Elecs., 220 F.3d at 178 (citations omitted). If the Court finds that it lacks jurisdiction to hear the matter, the respective counts of Plaintiff’s Complaint should be dismissed. Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 8 of 15 PageID: 217 5 LEGAL ARGUMENT POINT I COUNT 3 OF PLAINTIFF’S FIRST AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE STATE ENTITY DEFENDANTS ARE ENTITLED TO SOVEREIGN IMMUNITY___ Although State Entity Defendants removed this case to Federal Court, they did not by implication voluntarily waive sovereign immunity to State law claims that were not asserted in Plaintiff’s original Complaint. State Entity Defendants, therefore, still enjoy sovereign immunity to suit under Plaintiff’s newly asserted NJFLA claim in Count 3 of her First Amended Complaint. Therefore, Count 3 of Plaintiff’s First Amended Complaint against the State Entity Defendants should be dismissed without prejudice for lack of subject matter jurisdiction. Count 4 of Plaintiff’s First Amended Complaint should be dismissed for the same reason. Count 3 of Plaintiff’s First Amended Complaint alleges violations of the NJFLA. However, the State is immune from suit in federal court under a State law unless the particular statute waives jurisdictional immunity. Edelman v. Jordan, 415 U.S. 651 (1974), overruled on other grounds, Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). The Edelman Court held that a state's waiver of its own immunity will only be found where the state expresses its intent to do so with "the most express language or by such overwhelming implication from the text as to leave no room for any other reasonable construction." Edelman, 415 U.S. at 673; see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239 (1985); Minotti v. Lensink, 798 F.2d 607, 610 (2d Cir. 1986), cert. denied, 482 U.S. 906 (1987). It is not enough, for example, for a state to permit damage suits in its own courts: "In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intention to subject itself to suit in federal court." Atascadero, 473 U.S. at 241; see also Minotti, Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 9 of 15 PageID: 218 6 798 F.2d at 610 ("there will be no waiver of immunity against federal suit unless the state specifies its intention to consent to suit in federal court"); see also College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999) (“[A] State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation). A state's waiver of immunity to federal suit must be explicit and specific. In Minotti, for example, neither a Connecticut statute allowing "any civil action" against the state, nor a Connecticut Supreme Court holding waiving immunity "in the civil actions specified" was deemed specific enough to constitute a waiver of sovereign immunity. Minotti, 798 F.2d at 611. The protection of sovereign immunity also extends to the State of New Jersey’s alter egos, which includes the State Entity Defendants. Garcia v. The Richard Stockton College of New Jersey, 210 F. Supp. 2d 545, 550 (D.N.J. 2002) (“[A] plaintiff may not sue the State of New Jersey, or its alter egos, under the [NJLAD]”). A State Defendant waives sovereign immunity to suit under a particular State law claim when it removes the case to Federal Court. Lombardo v. Pennsylvania Department of Public Welfare, 540 F.3d 190, 197 (3d Cir. 2008). The Lombardo Court explained “that immunity is waived where a State voluntarily invokes a federal court’s jurisdiction.” Id. (citing Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 620 (2002)). The Court further explained that “removal is a form of voluntary invocation of a federal court’s jurisdiction sufficient to waive the State’s otherwise valid objection to litigation of a matter (here of state law) in a federal forum.” Lombardo, 540 F.3d at 197 (citing Lapides, 535 U.S. at 623) (emphasis added). The Court did not hold that removal constituted a universal waiver of all other State law claims that a plaintiff could have alleged in her state court complaint. Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 10 of 15 PageID: 219 7 In determining whether immunity was waived, Courts “must ‘indulge every reasonable presumption against waiver’”. Lombardo, 540 F.3d at 198 (citations omitted). In Garcia, the Court looked to the NJLAD statute to determine whether there was a clear intent to waive sovereign immunity to suit in Federal Court and found none. Garcia, 210 F. Supp. 2d at 550. However, the Court limited it’s analysis to whether there was intent to waive immunity to suits under the NJLAD only. Although Garcia involved an inquiry into whether there was an express waiver, it follows from the Courts reasoning and general principles enunciated in Lombardo, that a State does not waive sovereign immunity to all State law claims in Federal Court just because it has waived sovereign immunity to suit under one particular State law claim. See Lombardo, 540 F.3d at 198 (“the Supreme Court has noted that an effective waiver of sovereign immunity, like the waiver of other Constitutionally-protected rights, must involve the ‘intentional relinquishment or abandonment of a known right’”) (citations omitted). Thus, States enjoy sovereign immunity from suit under each of its separate statutes in Federal Court and the assertion of immunity under each of its particular statutes is a separate “known right.” Similarly, removal is not a universal waiver of the right to sovereign immunity. Instead, it only evidences the intent to forego a State’s known right to sovereign immunity from suit under the particular State law or laws known to it at the time of removal (that is, whatever was alleged in the plaintiff’s complaint). The only difference is that intent with respect to removal is considered to be “implied.” Here, the NJFLA only authorizes suit in New Jersey’s Superior Court. N.J.S.A. 34:11B- 11. Although a Plaintiff may sue State Entity Defendants as employers under the NJFLA in State Court, the New Jersey State legislature did not clearly express that a plaintiff may bring a suit against a State employer under the NJFLA in Federal Court. See Garcia, 210 F. Supp. 2d at 550 Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 11 of 15 PageID: 220 8 (the courts analysis with respect to the NJLAD is directly analogous to the NJFLA). Therefore, a federal court may not assert jurisdiction over State Entity Defendants under the NJFLA. Id. (holding that the District Court of New Jersey does not have jurisdiction to hear supplemental- state law claims under the NJLAD because although the NJLAD authorizes suit against the State in State court, it does not mention Federal Court) (citing Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 540 (2002) ("[Section] 1367(a)'s grant of jurisdiction does not extend to claims against nonconsenting State Entity Defendants.")); see also, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 118 (1984). When State Entity Defendants removed Plaintiff’s original Complaint to Federal Court, they voluntarily waived sovereign immunity to suit for the State law claims contained in Plaintiff’s state court Complaint only (i.e., the claims under the NJLAD and the New Jersey Wage and Hour Law). (See Docket Entry No. 1). Plaintiff’s First Amended Complaint asserts a new State law claim under the NJFLA. (See Docket Entry No. 21, Ex. A, Pl. 1st Amend. Compl., ¶¶34-41). However, State Entity Defendants did not voluntarily waive sovereign immunity to suit under this new State law claim by implication when it removed the matter for two distinct reasons. First, indulging every reasonable presumption against waiver, State Entity Defendants could not have voluntarily waived immunity to claims that they were not aware of in Plaintiff’s state court Complaint. Therefore, by removing this case, State Entity Defendants only waived their “known right” to assert their sovereign immunity to suit under the NJFLA (i.e., her NJLAD and New Jersey Wage and Hour Law claims). State Entity Defendants’ removal was therefore not an “intentional relinquishment or abandonment of” their sovereign immunity from suit under the NJFLA or any other State law claims that were not alleged in Plaintiff’s Initial Complaint. Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 12 of 15 PageID: 221 9 Therefore, State Entity Defendants retained their “known right” to assert sovereign immunity to suit under the NJFLA and so assert their right to immunity to this claim now. Second, The Supreme Court defined removal as a voluntary waiver, and Plaintiff’s assertion of a new State law cause of action in her First Amended Complaint undermines the voluntariness of that waiver. Further, Plaintiff should have contemplated that removal of her original Complaint was probable because she included Federal claims. Indeed, Plaintiff’s NJFLA claim is essentially the same as her original FMLA claim. (See Docket Entry No. 1, Ex. A, Pl. Compl., ¶¶34-41). Additionally, here, as argued in its first motion to dismiss, State Entity Defendants enjoy sovereign immunity from suit under the FMLA in both State and Federal Courts because Congress did not abrogate State sovereign immunity to suit under that statute. (See Plaintiff’s Brief at Point I, Docket Entry No. 8). Although State Entity Defendants removed this case to Federal Court, they did not by implication voluntarily waive sovereign immunity to State law claims that were not asserted in Plaintiff’s original Complaint. State Entity Defendants, therefore, still enjoy sovereign immunity to suit under Plaintiff’s newly asserted NJFLA claim in Count 3 of her First Amended Complaint. For those reasons, Count 3 of Plaintiff’s First Amended Complaint against the State Entity Defendants should be dismissed with prejudice for lack of subject matter jurisdiction. POINT II COUNT 4 OF PLAINTIFF’S FIRST AMENDED COMPLAINT ALLEGING VIOLATIONS OF THE FLSA SHOULD BE DISMISSED BECAUSE DEFENDANTS ARE IMMUNE FROM SUIT IN BOTH STATE AND FEDERAL COURT_______________________________________ _______ State Entity Defendants did not voluntarily waive sovereign immunity to suit under the FLSA when it removed this case to Federal Court because said claim was not included in Plaintiff’s original Complaint. State Entity Defendants are therefore still entitled to sovereign Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 13 of 15 PageID: 222 10 immunity to suit under the FLSA. Allen v. Fauver, 167 N.J. 69, 72-73 (2001) (citing Alden v. Maine, 527 U.S. 706, 757 (1999)). Therefore, count 4 of Plaintiff’s First Amended Complaint should be dismissed. The FLSA sets out various labor regulations regarding interstate commerce employment including minimum wages, requirements for overtime pay, and limitations on child labor. 29 U.S.C.S. §201, et seq. The Supreme Court has held that a nonconsenting State cannot be sued under the FLSA in State court. Alden, 527 U.S. at 712. The Supreme Court reasoned that the United States Constitution does not include the power to subject nonconsenting States to private suits for damages in State courts. Id. It is also well-established that State immunity to suit under a federal law is equally valid whether the suit is brought in Federal or State court. Id. at 754 (holding that state courts may not “assume jurisdiction that could not be vested in the federal courts and forms no part of the judicial power of the United States”); see also, Allen, 167 N.J. at 73-77 (citing Alden and holding that the State of New Jersey and its Department of Corrections are immune from suit in both federal and state court under the FLSA). In addition, when a State removes a case to Federal Court, it retains all defenses that it otherwise would have enjoyed if the action remained in State court including immunity from suit. See Lombardo, 540 F.3d 198-99 (the Court held that while removal waives immunity from liability, all defenses are retained, including immunity from liability in State court). Here, Count 4 of Plaintiff’s First Amended Complaint alleges a cause of action under the FLSA. However, State Entity Defendants have not consented to suit under the FLSA. In addition, State Entity Defendants are immune from liability under the FLSA in State court. Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 14 of 15 PageID: 223 11 Allen, 167 N.J. at 73-77. Therefore, despite removal, State Entity Defendants retain the defense of immunity to liability under the FLSA that they currently enjoy in State court. For the foregoing reasons, Count 4 of Plaintiff’s First Amended Complaint should be dismissed against State Entity Defendants in its entirety and with prejudice. CONCLUSION For the foregoing reasons, it is respectfully requested that the Court grant State Entity Defendants’ Motion to Dismiss Counts 3 and 4 of Plaintiff’s First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1). Respectfully submitted, CHRISTPOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: /s/ Joel Clymer _____________ Joel Clymer Deputy Attorney General Dated: March 20, 2017 Case 1:16-cv-07915-RBK-JS Document 27-1 Filed 03/20/17 Page 15 of 15 PageID: 224 1 CHISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants State of New Jersey Department of Corrections, Bayside State Prison, Erin Nardelli, William Varrell, William Saraceni, and Daniel Opperman By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF CAMDEN MELANIE WILSON, Plaintiff, v. STATE OF NEW JERSEY; THE NEW JERSEY DEPARTMENT OF CORRECTIONS; BAYSIDE STATE PRISON; COUNTY OF CUMBERLAND; CHARLES EGBERT; ERIN NARDELLI; WILLIAM VARRELL; WILLIAM SARACENI; DANIEL OPPERMAN, et al., Defendants. Hon. Robert B. Kugler, U.S.D.J. Hon. Joel Schneider, U.S.M.J. Civil Action No. 1:16-cv-07915 (RBK-JS) CERTIFICATION OF JOEL CLYMER, D.A.G. JOEL CLYMER, of full age, hereby certifies as follows: 1. I am licensed to practice law in the State of New Jersey and admitted to practice in the United States District Court for the District of New Jersey. I am employed as a Deputy Attorney General of the State of New Jersey and represent the Defendants, State of New Jersey Department of Corrections, Bayside State Prison, Erin Nardelli, William Varrell, William Case 1:16-cv-07915-RBK-JS Document 27-2 Filed 03/20/17 Page 1 of 2 PageID: 225 2 Saraceni, and Daniel Opperman in the above-captioned matter. I am therefore fully familiar with the facts to which I now certify. 2. I submit this Certification in support of a Motion to Dismiss Counts 3 and 4 of Plaintiff’s First Amended Complaint against Defendants, State of New Jersey, Department of Corrections and Bayside State Prison, pursuant to Fed.R.Civ.P. 12(b)(1). 3. Attached hereto as Exhibit “A” is a true and correct copy of the First Amended Complaint filed by Plaintiff in this matter. I certify that the foregoing statements by me are true. I understand that if any of the foregoing statements is willfully false, I am subject to punishment. /s/Joel Clymer Joel Clymer Deputy Attorney General Dated: March 20, 2017 Case 1:16-cv-07915-RBK-JS Document 27-2 Filed 03/20/17 Page 2 of 2 PageID: 226 EXHIBIT A Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 1 of 16 PageID: 227 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 1 of 15 PageID: 161Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 2 of 16 PageID: 228 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 2 of 15 PageID: 162Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 3 of 16 PageID: 2 9 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 3 of 15 PageID: 163Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 4 of 16 PageID: 2 0 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 4 of 15 PageID: 164Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 5 of 16 PageID: 231 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 5 of 15 PageID: 165Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 6 of 16 PageID: 232 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 6 of 15 PageID: 166Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 7 of 16 PageID: 233 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 7 of 15 PageID: 167Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 8 of 16 PageID: 234 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 8 of 15 PageID: 168Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 9 of 16 PageID: 235 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 9 of 15 PageID: 169Case 1: 6-cv-07915-RBK-JS Document 27-3 il 3/20/ 10 of 16 PageID: 236 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 10 of 15 PageID: 170Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 11 of 16 PageID: 237 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 11 of 15 PageID: 171Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 2 of 16 PageID: 238 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 12 of 15 PageID: 172Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 13 of 16 PageID: 239 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 13 of 15 PageID: 173Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 14 of 16 PageID: 240 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 14 of 15 PageID: 174Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 15 of 16 PageID: 2 1 Case 1:16-cv-07915-RBK-JS Document 21 Filed 02/17/17 Page 15 of 15 PageID: 175Case 1:16-cv-07915-RBK-JS Document 27-3 Filed 03/20/17 Page 16 of 16 PageID: 242 - 1 - CHISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants State of New Jersey Department of Corrections, Bayside State Prison, Erin Nardelli, William Varrell, William Saraceni, and Daniel Opperman By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF CAMDEN MELANIE WILSON, Plaintiff, v. STATE OF NEW JERSEY; THE NEW JERSEY DEPARTMENT OF CORRECTIONS; BAYSIDE STATE PRISON; COUNTY OF CUMBERLAND; CHARLES EGBERT; ERIN NARDELLI; WILLIAM VARRELL; WILLIAM SARACENI; DANIEL OPPERMAN, et al., Defendants. Hon. Robert B. Kugler, U.S.D.J. Hon. Joel Schneider, U.S.M.J. Civil Action No. 1:16-cv-07915 (RBK-JS) CERTIFICATION OF SERVICE I hereby certify that, on March 20, 2017, Defendants, State of New Jersey Department of Corrections and Bayside State Prison’s Partial Motion to Dismiss in Lieu of an Answer, was electronically filed with the Clerk of the United States District Court and a courtesy copy of the motion was served on the Robert B. Kugler, U.S.D.J. via certified mail, and Plaintiff’s counsel via overnight mail at the following address: Case 1:16-cv-07915-RBK-JS Document 27-4 Filed 03/20/17 Page 1 of 2 PageID: 243 - 2 - John H. Sanders II, Esquire Shebell & Shebell, LLC 655 Shrewsbury Avenue, Suite 314 Shrewsbury, New Jersey 97702 By: /s/ Joel Clymer Joel Clymer Deputy Attorney General DATED: March 20, 2017 Case 1:16-cv-07915-RBK-JS Document 27-4 Filed 03/20/17 Page 2 of 2 PageID: 244 - 1 - CHISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex P.O. Box 112 25 Market Street Trenton, New Jersey 08625-0112 Attorney for Defendants State of New Jersey Department of Corrections, Bayside State Prison, Erin Nardelli, William Varrell, William Saraceni, and Daniel Opperman By: Joel Clymer Deputy Attorney General (609) 292-6252 Joel.Clymer@lps.state.nj.us IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF CAMDEN MELANIE WILSON, Plaintiff, v. STATE OF NEW JERSEY; THE NEW JERSEY DEPARTMENT OF CORRECTIONS; BAYSIDE STATE PRISON; COUNTY OF CUMBERLAND; CHARLES EGBERT; ERIN NARDELLI; WILLIAM VARRELL; WILLIAM SARACENI; DANIEL OPPERMAN, et al., Defendants. Hon. Robert B. Kugler, U.S.D.J. Hon. Joel Schneider, U.S.M.J. Civil Action No. 1:16-cv-07915 (RBK-JS) ORDER This matter having come before the Court on a motion of Christopher S. Porrino, Attorney General of New Jersey, by Joel Clymer, Deputy Attorney General, on behalf of Defendants, State of New Jersey Department of Corrections and Bayside State Prison for partial dismissal of Plaintiff’s First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Case 1:16-cv-07915-RBK-JS Document 27-5 Filed 03/20/17 Page 1 of 2 PageID: 245 - 2 - 12(b)(6), and the Court having considered the papers submitted herein, and for good cause shown; IT IS on this day of , 2017 ORDERED that Counts 3 and 4 of Plaintiff’s First Amended Complaint are hereby dismissed with prejudice. ____________________________________________ Robert B. Kugler, U.S.D.J. Case 1:16-cv-07915-RBK-JS Document 27-5 Filed 03/20/17 Page 2 of 2 PageID: 246