# BRATHWAITE v. CITY OF LONG BRANCH

> District Court, D. New Jersey · April 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10275155

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10275155

## How later opinions describe it (automated extraction)

- affirming exercise of discretion to remand after awarding summary judgment on all federal claims

## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOMELL BRATHWAITE,
Plaintitt, Civ. A. No. 3:19-cv-18332 (GC) (IBD)
v. MEMORANDUM OPINION
CITY OF LONG BRANCH, et al.,
Defendants.

CASTNER, District Judge
THIS MATTER comes before the Court upon Plaintiff Jomell Brathwaite’s (“Plaintiff”)
Motion to Amend his Complaint. (See Pl.’s Mot., ECF No. 55.) Defendants the City of Long
Branch, Lieutenant Jorge Silverio, Officer David Stone, and Officer Joseph Corcoran (collectively,
“Defendants”) opposed (see Defs.” Opp’n, ECF No. 58), and Plaintiff replied (see Pl.’s Reply,
ECF No. 62). The Court has reviewed the parties’ submissions and reaches its decision without
oral argument pursuant to Federal Rule of Civil Procedure (“Rule”) 78 and Local Civil Rule 78.1.
For the reasons set forth herein, and for other good cause shown, the Court grants Plaintiffs
Motion, and this matter is remanded to the Superior Court of New Jersey.
IL BACKGROUND
Plaintiff initially filed this action in the Superior Court of New Jersey, Monmouth County,
Law Division, on August 26, 2019. (See Pl.’s Compl., Notice of Removal Ex. A, ECF No. 1.)
Plaintiffs Complaint asserted six claims pursuant to the Civil Rights Act, 42 U.S.C. § 1983: (1)
excessive force; unlawful seizure and/or arrest (see id. J] 34-40); (2) malicious prosecution (see

id. 41-44); (3) false imprisonment/unlawful incarceration (see id. § 45-48); (4) failure to
intervene (see id. {{] 49-58); (5) supervisory liability (see id. Ff 59-63); and (6) unlawful policy,
custom, practice, inadequate training, failure to discipline (see id. 64-73). Plaintiff also stated—
in a single count—claims under the New Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann. §
10:6-2, et seq., that run directly parallel to his federal claims: (7) excessive force; unlawful seizure
and/or arrest (see id §§ 75-76); (8) malicious prosecution (see id J 77); (9) false
imprisonment/unlawful incarceration (see id. § 77); (10) failure to intervene (see id § 78); (11)
supervisory liability (see id. 79); and (12) unlawful policy, custom, practice, inadequate training,
failure to discipline (see id. § 80). Finally, Plaintiff pled a cause of action for civil conspiracy.
(See id. J§ 82-84.) Plaintiff now seeks to withdraw his federal claims under Section 1983 and
remand the matter to state court. (See generally P1.’s Mot., ECF No. 55.)
Il. LEGAL STANDARD
Generally, “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). However, when the
Court’s leave to amend will result in the elimination of its basis for jurisdiction, the Court examines
whether the exercise of supplemental jurisdiction, see 28 U.S.C. § 1367, is appropriate. See
Westmoreland Hosp. Ass’n vy. Blue Cross of W. Pa., 605 F.2d 119, 123 (3d Cir. 1979) (citing Hazel
Bishop, Inc. v. Perfemme, Inc., 314 F.2d 399 (2d Cir. 1963)) (“A subsequent amendment to the
complaint after removal designed to eliminate the federal claim will not defeat federal
jurisdiction.”).

A. Rule 15(a)(2)
After the period for amending as of right has passed, Rule 15 permits a party to “amend its
pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). “Leave to amend should be granted whenever ‘justice so requires.’” Arthur v. Maersk,
434 F.3d 196, 203 (3d Cir. 2006) (quoting Fed. R. Civ. P. 15(a)(2)). Denial of leave to amend
should only result “when the amendment sought (1) causes undue delay; (2) arises from bad faith
or dilatory motive on the part of the movant; (3) arises from repeated failure to cure deficiencies
by amendments previously allowed; (4) causes undue prejudice to the opposing party by virtue of
allowance of the amendment; or (5) is futile.” Private Sols. Ine. v. SCMC, LLC, Civ. No. 15-3241,
2016 WL 2946149, at *2 (D.N.J. May 20, 2016) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)
& Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 Gd Cir. 2003)).
Though delay alone is insufficient to support denial, see Cornell & Co., Inc. v.
Occupational Safety & Health Rev. Comm’n, 573 F.2d 820, 823 (3d Cir. 1978), when a party seeks
to amend outside of the date imposed by the Court’s scheduling order, it may do so by
demonstrating “good cause” to amend the order in accord with Rule 16(b), see FE. Mins. & Chems.
Co. v. Mahan, 225 F.3d 330, 340 n.18 (3d Cir. 2000). An analysis of the likelihood that undue
prejudice will result “requires that [the Court] focus on the hardship to the defendants if the
amendment were permitted,” Cureton v. Nat'l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d
Cir. 2001) (citing Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984)), in other words,
“whether allowing an amendment would result in additional discovery, cost, and preparation to
defend against new facts or new theories[,|” id. (comparing cases). Futility arises when “‘the
complaint, as amended, fails to state a claim upon which relief could be granted|[,|’ i.e., when it

fails under Rule 12(b)(6).” Private Sols, Inc., 2016 WL 2946149, at *3 (quoting Shane v. Fauver,
213 F.3d 113, 115 Gd Cir. 2000)).
B. Remand After Proper Removal
After successful removal, the elimination of the federal claims from the pleading does not
“automatically divest this Court of jurisdiction over the matter,” Bonanni v. Purdy, Civ. No. 13-
6212, 2013 WL 6579129, at * 2 (D.N.J. Dec. 13. 2013), as “[a] district court’s decision whether
to exercise supplemental jurisdiction after every claim over which it had original jurisdiction has
been amended away, withdrawn or dismissed is ‘purely discretionary,” id. (quoting Carlsbad
Tech. Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009)); see Osborn y. Haley, 549 U.S. 225, 245
(2007) (“Even if only state-law claims remained after resolution of the federal question, the District
Court would have authority, consistent with Article II, to retain jurisdiction.”). The statute
governing supplemental jurisdiction permits a district court to decline to exercise it if, inter alia,
“the district court has dismissed all claims over which it has original jurisdiction,” or “in
exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28
U.S.C. § 1367(c)(3) & (4).
Furthermore, the Court of Appeals for the Third Circuit has explained that “where the claim
over which the district court has original jurisdiction is dismissed before trial, the district court
must decline to decide the pendent state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges
v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d
780, 788 (3d Cir. 1995)) (emphasis added in Hedges). “In deciding whether to remand, the district
court should consider what best serves the principles of economy, convenience, fairness, and
comity.” Trans Penn Wax. Corp v. McCandless, 50 F.3d 217, 233 (3d Cir. 1995) (citing Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988)). This includes consideration of whether the
motivation behind the amendment is to engage in forum gamesmanship. See Carnegie-Mellon
Univ., 484 U.S. at 357 (“A district court can consider whether the plaintiff has engaged in any
manipulative tactics when it decides whether to remand a case.”); see Trans Penn Wax Corp, 50
F.3d at 233 (“[A]n effort by the plaintiff to manipulate the forum should be considered along with
other factors in the decision whether to remand.”); see also Dirauf v. Berger, 506 F. Supp. 3d 254,
266 (D.N.J. 2020), aff'd, 57 F.4th 101 (3d Cir. 2022) (“[F]orum manipulation is but one factor
under § 1367(c).”).
Il. DISCUSSION
A. Motion to Amend under Rule 15(a)(2)
With regard to Plaintiff's request for leave to amend, Plaintiff argues that “[t]here is no
burden whatsoever on the Court or the parties in granting the amendment and remanding this
matter to state court.” (Pl.’s Memo of Law § 18, ECF No. 55.) “No party will have to expend
additional resources for the amendment and remand,” (id. § 19), and “[a]s the amended complaint
does not add any new causes of action|] against any of the defendants, there is no prejudice against
the defendants,” (id. 420). Defendants respond that “Plaintiff has not given the Court any reason
to believe that he acted diligently in filing this motion.” (Defs.’ Opp’n Br. 6, ECF No. 58.) “Over
the course of three years and Seven Amended Scheduling Orders, Plaintiff never contemplated nor
sought to file a Motion to Amend.” (d.) “As such, any attempt to amend the Complaint at this
juncture must fail because Plaintiff cannot establish due diligence and good cause for seeking the
amendment.” (/d.)
Plaintiff responds by distinguishing the precedent upon which Defendants rely, as cases
that “deal with plaintiffs adding either causes of action and/or facts.” (PI.’s Reply Br. 2, ECF No.

62.) Accordingly, Plaintiff asserts that “due diligence and good cause do not apply where a
plaintiff is seeking to amend his complaint to remove Federal causes of action to have the matter
remanded to state court.” (d. at 3.)
Plaintiff's Motion to Amend was not filed in violation of any Scheduling Order that was
entered in this case. (See Scheduling Orders, respectively, ECF Nos. 27, 30, 35, 42, 46, 48, 49 &
53.) Therefore, the requirement of showing “good cause” under Rule 16(b)(4), is not directly
implicated. (See Defs.’ Opp’n Br. 4-6, ECF No. 58 (arguing that Plaintiff was required to show
good cause under Rule 16(b)(4) because he seeks to amend after a substantial part of the litigation
has been conducted).) Nor is futility implicated here, as Plaintiff seeks to eliminate his federal
claims by amendment as opposed to adding additional claims. See Dirauf, 506 F. Supp. at 263
(“The amendment seeks to drop, not add, a claim, so it cannot be characterized as futile.”).
Finally, Defendants argue that because they have “incurred expenses to retain a rebuttal
expert to analyze this case through the lens of federal question claims,” and that the “entirety of
the rebuttal report is littered with analysis as it pertains” to Plaintiffs federal claims, they will be
out costs. (Defs.’ Opp’n Br. 9.) “It is well-settled that prejudice to the non-moving party is the
touchstone for the denial of an amendment” under Rule 15(a)(2). Cornell & Co., Inc., 573 F.2d at
at 823 (citing Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S 321, 330-31 (1971) &
Kerrigan’s Est. v. Joseph E. Seagram & Sons, 199 F.2d 694, 696 (3d Cir. 1952)).
“To justify the denial of a motion to amend, the asserted prejudice must amount to more
than mere inconvenience to the non-moving party.” Phillips v. Borough of Keyport, 179 F.R.D.
140, 144 (D.N.J. 1998) (citing Cuffy v. Getty Refin. & Mktg. Co., 648 F. Supp. 802, 806 (D. Del.
1986)). Demonstrating prejudice requires more than a mere allegation of prejudice, but a showing
that a party “was unfairly disadvantaged or deprived of the opportunity to present facts or evidence

which it would have offered had the [plaintiff’s] amendments been timely.” Heyl & Patterson
Int'l, Inc. v. F.D. Rich Housing of Virgin Islands, Inc., 663 F.2d 419, 426 Gd Cir. 1981) (citing
Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 n.19 (3d Cir. 1969)). Defendants have not been
deprived of any such opportunity, nor will they be by the withdrawal of Plaintiffs federal claims.
Plaintiffs amendment will be permitted as the Court will not require Plaintiff □□ continue to pursue
claims that he no longer chooses to pursue.
B. Remand under 28 U.S.C. § 1367(c)(3)
Under 28 U.S.C. § 1367(c)(3), the Court has discretion to decline jurisdiction over
remaining claims after all federal claims have been dismissed from the action. Turning to
“consider[ations of] what best serves the principles of economy, convenience, fairness, and
comity,” Trans Penn Wax. Corp, 50 F.3d at 233 (citing Carnegie-Melion Univ., 484 U.S. at 357),
the Court is cognizant that “in the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction
over the remaining state law claims,” Carnegie-Mellon Univ., 484 U.S. at 350 n.7.
No party has advanced an argument that remand to the New Jersey state court would be
more inconvenient than litigation in the district court. See Ortiz v. Univ. of Med. & Dentistry of
Civ. No. 08-2669, 2009 WL 2194782, at *4 (D.N.J. July 23, 2009) (“This Court sees no
disadvantage to remand with respect to convenience of either the courts or the parties, and neither
party has put forward a compelling reason based on the convenience factor to favor this Court over
the Superior Court of New Jersey.”); see Alicea v. Outback Steakhouse, Civ. No. 10-4702, 2011
WL 1675036, at *5 (D.N.J. May 3, 2011) ‘Furthermore, it does not appear to be an inconvenience
to the parties to litigate New Jersey state law claims in New Jersey Superior Court, rather than in
this district court.”). The factor of convenience appears to weigh in neutral balance.

Next, the court considers fairness to the litigants. Defendants rely on Growth Horizons,
Inc. v. Delaware County, Pa., 983 F.2d 1277 (3d Cir. 1993), to support the proposition that
““[w]here the case has been substantially litigated, it may be a proper exercise of discretion to retain
the state claims.” (See Defs.’ Opp’n Br. 9.) The Court is sympathetic to the fact that Defendants
have spent the past three years defending this action in this Court, in which fact discovery appears
to have closed on April 4, 2022 (see Sixth Am. Scheduling Order, ECF No. 49), and in which
“expert depositions are all that remain before dispositive motions are to be filed,” (cf Seventh Am.
Scheduling Order, ECF No. 53). (See Defs.? Opp’n Br. 10.) However, although this case is
procedurally further along,' discovery has not yet been completed, no dispositive motions have
been filed or decided by this Court and no trial date has been set. See, e.g., Robert W. Mauthe,
MD., P.C. v. Optum, Inc., 925 F.3d 129, 135 (3d Cir. 2019) (affirming discretion to decline
supplemental jurisdiction after resolution and award of summary judgment on all federal
claims); Yue Yu v. McGrath, 597 F. App’x 62, 68 (3d Cir. 2014) (affirming exercise of discretion
to remand after awarding summary judgment on all federal claims); Burnsworth v. PC Lab., 364
F. App’x 772, 776 (3d Cir. 2010) (affirming the same). In Growth Horizons, the district court’s
order dismissing the plaintiff's suit for want of jurisdiction was reversed by the Third Circuit
because the “district court ha[d] already held a trial on the merits and ha[d] already heard all the
evidence necessary to reach a decision on the plaintiff's contract claim.” 983 F.2d at 1285.
Therefore, the Court finds this factor to weigh in neutral balance as well if not in favor of remand.
The Court also considers the principle of judicial economy. While the Court has expended
resources in connection with this case, no resources have been devoted by the Court in considering

The Court notes, however, that this matter was stayed for a period of six months due to an
underlying criminal matter. (See ECF Nos. 13, 26.)

the merits of Plaintiff's state law claims (or any claims) as this is the first motion and ruling in this
case. Cruz v. Aspen Landscaping Contracting, Inc., Civ. No. 20-8546, 2021 WL 457858 *6
(D.N.J. Feb. 8, 2021) (finding that judicial economy factor weighed in favor or remand where
motion to amend and remand was the court’s first ruling in the case). Therefore, the Court
considers this factor to weigh in neutral balance as well, if not in favor of remand.
Maintenance of comity between the federal and state sovereigns is supportive of remand
in this case because “[t]he state has a strong interest in interpreting what appear to be complex
issues of state law and public policy.” Mazzola v. Americhoice of New Jersey, Inc., Civ. No. 13-
429, 2013 WL 6022345, at *3 (D.N.J. Nov. 13, 2013). Plaintiff cites to recent New Jersey Supreme
Court precedent—principally, Harris v. City of Newark, 250 N.J. 294 (2022)—for the proposition
that “New Jersey State law affords plaintiff greater protections than does Federal law and continues
to evolve in that direction, particularly in the area of qualified immunity.” (P1.’s Reply at 3-4 (also
citing Baskin v. Martinez, 243 N.J. 112 (2020) & Schneider y. Simonini, 163 N.J. 336 (2000)).)
Plaintiff argues that “[dJespite the similarity in language of [the United States Constitution and the
New Jersey Constitution], the New Jersey Supreme Court has recognized that New Jersey’s
Constitution affords its citizens greater protections than those afforded by its Federal counterpart.”
(Ud. at 5 (citing State v. Harris, 211 N.J. 566, 581 (2012)). Plaintiff emphasizes that, in the context
of the New Jersey Supreme Court’s determination that “[w]hen the United States Constitution
affords our citizens less protection than does the New Jersey Constitution,” State v. Hempele, 120
N.J. 182, 196 (1990), remand of the state claims for disposition in a New Jersey court is the
appropriate outcome. (/d.) Ultimately, Plaintiff argues that he “should be permitted to have his
matter heard in a forum where the law affords him the greatest protections, particularly where it
involves a minority plaintiff who is the [alleged] victim of police brutality, and here, that forum is

90

the State of New Jersey.” (d. at 6.) Noting that a “strong policy exists in favor of resolving state
law issues in state courts,” the Court finds that this factor weighs in favor of remand. Shaffer v.
Bd. of Sch. Directors of Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984).
Plaintiffs motivation behind amendment could be suggestive of forum shopping.
However, manipulation of the forum is only a factor to be considered and is not dispositive of the
issue. See, e.g., Cabibo v. Parsons Inspection & Maint. Corp., Civ. No. 09-3213, 2009 WL
3074731, at *7 (D.N.J. Sept. 23, 2009). “Neither CoAill nor Trans Penn Wax Corp., however,
found that remand of a case was improper due to manipulation of the forum.” Ortiz, 2009 WL
2194782, at *3. Indeed, “[rJemoving a federal claim often merits little weight in the analysis.”
Dirauf v. Berger, 57 F Ath 101, 109 n.8 (3d Cir. 2022) (citing Enochs v. Lampasas Cnty., 641 F.3d
155, 160 (Sth Cir. 2011) (amending a “complaint to delete the federal claims is not a particularly
egregious form of forum manipulation, if it is manipulation at all’”)).
As the Third Circuit has explained, “[p]arties are the masters of their pleadings, and a party
can seek to drop a federal claim for any number of reasons, some of which may be manipulative
while others are not.” Jd. at 109 (citing Payne v. Parkchester N. Condos., 134 F. Supp. 2d 582,
586 (S.D.N.Y. 2001) (there are “innocent,” “[lJess innocent[] but still relatively acceptablfe],” and
“manifestly” improper reasons for removing a federal claim)). Here, even if the Court were to
determine that Plaintiff is motivated by forum manipulation, the considerations of judicial
economy, convenience, and fairness all weigh neutrally, if not in favor of remand, although the
interest of comity between the federal and state courts weighs heavily in favor of remand. See id.
at 108 (“[A] decision remanding despite a finding of forum manipulation would not be an abuse
of discretion, particularly where, as here, Defendants do not (and could not) argue that other factors
like judicial economy, convenience, or comity favored exercising supplemental jurisdiction.”).

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Based on a careful consideration of all of the factors, the Court finds in favor of remanding
Plaintiff's remaining state law claims.
IV. CONCLUSION
For the reasons stated forth herein, and for other good cause shown, Plaintiff's Motion is
GRANTED. The Court declines to exercise supplemental jurisdiction over the remaining state
law claims and the matter will be REMANDED. An appropriate Order follows.

Dated: April 20, 2023 | 4 MAMAN ADH □
GEORGETTE CASTNER
UNIZED STATES DISTRICT JUDGE

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