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Mints v. Educational Testing Service

November 14, 1996

JEFFREY A. MINTS

v.

EDUCATIONAL TESTING SERVICE,



On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 95-03446)

BEFORE: MANSMANN and GREENBERG, Circuit Judges, and HILLMAN, District Judge *fn*

GREENBERG, Circuit Judge.

Submitted under Third Circuit LAR 34.1(a) October 10, 1996

(Filed: November 14, 1996)

OPINION OF THE COURT

Educational Testing Service ("ETS") appeals from an order entered January 5, 1996, awarding appellee Jeffrey A. Mints $8,436.78 in attorney's fees and costs pursuant to 28 U.S.C. Section(s) 1447(c) ("section 1447(c)"). Mints initiated this action in the Superior Court of New Jersey, but ETS removed the case to the district court under 28 U.S.C. Section(s) 1441(b). ETS asserted that the district court had removal jurisdiction because, in its view, the case arose under the laws of the United States, in particular the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section(s) 1001, et seq. Mints subsequently moved in the district court to remand the case to the Superior Court. The district court granted the motion and then denied ETS's motion for reconsideration. Thereafter, Mints made a motion for attorney's fees and costs which the district court granted. ETS then appealed the order awarding the fees and costs. This appeal raises procedural questions as to the time when a court may enter an order requiring payment of attorney's fees and costs when it remands a case to a state court, as well as substantive questions regarding the standard governing the consideration of applications for such fees and costs.

I. FACTUAL AND PROCEDURAL HISTORY

Mints's complaint in the Superior Court included six counts which we describe in detail. In the first count, he alleged that ETS terminated his employment on May 17, 1993, "by reason of his age" and thus violated the New Jersey Law Against Discrimination, N.J. Stat. Ann. Section(s) 10:5-1, et seq. (West 1993). He also alleged that the discrimination continued when ETS subsequently refused to rehire him. He claimed that when ETS notified him that his employment was terminated, he was "within two years of vesting his eligibility for early retirement, including, but not limited to, pension, medical and other benefits." He asserted that he suffered pain, emotional distress, and humiliation as a result of ETS's practices and that he "has suffered and continues to suffer substantial losses in earnings, job experience, retirement benefits, medical benefits and other employee benefits that he would have received" but for his termination or otherwise would receive in the future. Mints sought reinstatement, compensatory and punitive damages, and attorney's fees pursuant to N.J. Stat. Ann. Section(s) 10:5-27.1 (West 1993). Significantly, the count did not indicate that ETS's actions violated the Age Discrimination in Employment Act, 29 U.S.C. Section(s) 621, et seq., nor did it allege that ETS's actions violated ERISA, or even that ETS discharged him so that he would not obtain rights vested under ERISA.

In the second count, Mints claimed that ETS discharged him by reason of his sex and that its actions constituted unlawful sex discrimination under the New Jersey Law Against Discrimination. He alleged that he suffered the same losses from sex discrimination as he suffered from age discrimination. Significantly, Mints did not allege that ETS's action violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e, et seq., or ERISA, or that it discharged him so that he would not obtain rights vested under ERISA. In the third count, Mints charged that ETS terminated his employment because he suffered a disability. He brought this count under the New Jersey Law Against Discrimination and stated that he suffered the same losses as he suffered from the age discrimination. Once again, Mints did not bring his action under the federal statute paralleling the state discrimination claim, the Americans with Disabilities Act, 42 U.S.C. 12101, et seq., or under ERISA, and he did not assert that ETS discharged him so that he would not obtain rights vested under ERISA.

In Mints's fourth, fifth, and sixth counts he asserted common law claims for breach of contract, wrongful discharge, and defamation. Mints alleged in the breach of contract and wrongful discharge counts that he suffered the same losses as he set forth in the three discrimination counts, but in the defamation count he set forth only general losses and did not assert that he suffered the employment related losses he claimed in the other counts. Mints did not allege that he had a right to recovery under ERISA or any other federal law in any of these three counts.

Mints's omission of federal statutory causes of action under the ADEA, Title VII, and the ADA clearly was intentional, for at the time he

filed his Superior Court action he also filed an action in the district court which tracks his state case but adds these three federal statutes as bases for relief. Thus, he made a strategic decision to file parallel actions in the federal and state courts, but to limit his state action to claims founded under state law.

On July 13, 1995, ETS filed a timely notice of removal of the Superior Court action to the district court. In the notice, ETS quoted the portion of the Superior Court complaint in which Mints alleged that ETS discharged him "within two years of vesting his eligibility for early retirement, including, but not limited to, pension, medical and other benefits." In addition, ETS set forth in the notice of removal that Mints was seeking benefits pursuant to a group employee welfare benefit plan. In view of these allegations, ETS asserted that the district court had jurisdiction under 28 U.S.C. Section(s) 1331 and ERISA, and it cited Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478 (1990), and Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542 (1987), in support of its position.

Mints then moved in the district court to remand the case to the Superior Court. On September 19, 1995, the district court granted the motion to remand in an order and accompanying opinion. In its opinion, the district court pointed out that under 28 U.S.C. Section(s) 1441 a defendant could remove an action started in a state court to a federal district court if the action is founded under federal law. The court noted that ordinarily a district court has removal jurisdiction only if the federal cause of action appears on the face of the plaintiff's well-pleaded complaint. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 2846-47 (1983). Thus, the plaintiff is the master of the ...


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