Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv—O1268—***—MPT Document 36-5 Filed O3/O2/2005 Page1 of 3
EXHIBIT D

Case 1:04-cv—O1268—***—MPT Document 36-5 Filed O3/O2/2005 Page 2 of 3
LEXSEE
GREGORY D. MARTIN, Plaintiff, v. PHILADELPHIA FACILITIES
MANAGEMENT CORP., et al., Defendants.
CIVIL ACTION Nu. 04-1258
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
2004 U.S. Dist. LEXIS 13578
July I6, 2084, Decided
July 16, 2004, Filed; July I6, 2004, Entered
DISPOSITION: Counts I, il, and IV of plaintiffs . . I . .
mpiilm ima at ms of sa=sns.s· counterclaim pGSit§;;·¤;§ ggggrgéfiljggggwg)S,,{g;j*=g;*¤gEf;;Ey;a;;;
gmmidcd [0 Cmm Of Commun Pleas for Philadelphia Philadelphia Facilities Management Corporation and
mm y` Philadelphia Gas Works (collectively "PGW") after he
_ , was accused of stealing from POW. Plaintiff new brings
;"°xlSNem'g(R) Hmdnotes this action against his former employers alleging that he
was (i) wrongfully terminated, (2) terminated in
_ violation of his employment contract, (3) defamed, and
ELéH4Eg;£,I, Sm S%I$§,?R¥)IgkSh;€§qYI§; (4} not given his procedural clue process right to a pre-
PHH4ADELP}I`1A PA ’ termination hearing- PGW has tiled a counterclaim
“' ‘ ‘ ` accusing Plaintiff of fraud, gross negligence in the
_ _ _ , oversight of the corporation, conversion of corporate
,RMmImkA§g;§(NYr property to his own use, and other looting of the
' ’ ' ` company. For the reasons set out below, the Court
;T’~ADEi-PHlA GAS WORKS' PHH"ADELPHIA’ declines to exercise supplemental jurisdiction [*2] over
Plaintiffs state—law claims and PGW's counter claim and
For PHIL ADELPH1 A GAS WORKS Dgfcndam rernands these claims to the Court of Common Pleas.
HOWARD LEBOFSKY. PHILADELPHIA GAS The supplemental jurisdiction statute provides that
WORI jurisdiction over one claim, the court has supplemental
JUDGES: Berle M. Schiller,}. jurisdiction over state-law claims arising from the same
case or controversy. See 28 USC. § 1367. The statute
OPINIONBY: Berle M. Schiller also provides, however, that a district court "may decline
to exercise supplemental jurisdiction over a {state-law]
OPINION: claim . . it r . the claim substantially predominates over
the claim or claims over which the district court has
MEMOMNBW AND ORDER ¤ngt¤s1_;aizsai¤t1¤¤.·· 28 use ga isamiizl A attain
S Hu J court will generally {ind that a state—iaw claim
C I my ' substantially predominatcs where it "constitutes the real
body of a case, to which the federal claim is only an
July 16’ 2094 appcndage," United Mine Workers ofrlm. v. Gibbs, 383
U.S. 715. 727, 16 I, Ed. 2d 218, 86 S. Cr. HBO (1966).
and "where permitting litigation of all claims in the

Case 1:04-cv—O1268—***—MPT Document 36-5 Filed O3/O2/2005 Page 3 of 3
Pagt:2
ZD04 U S. Dist LEXES E135`l'8,*
district court can accurately be described as allowing a doctrines spanning employment, delismation, negligence,
federal tail to warg what is in substance a state clog." De and corporate law, while the federal claim turns on
Asencic vs Tyson Foods. Inc,. 342 F..3d 301, 309 (3d Cir application of the fairly welhdeiined technical
2003) [*3] (quoting Borough of W. Mwlirt v. Lancaster, requirements imposed {*5] on government employers by
4.5 F.3d 780, 789 (3d Circ 1995}). "The 'substantially the Due Process Clauret See gerzerolly Perry, 408 US
predominate' standard. however, is not satisfied simply 593, 33 L Ed. 2d 5 70, 92 S Ct. 2694.
by a numerical count of the state and federal claims the Ahh I _ { h f { _ , h _ _
plaintiflhas chosen to assert on the basis of the same set . Dug} my Um: O I cs? ac mb img E pmvidc
or srs ·· BOW;. of W Man., 45 me nr are Rant, Sutigtent agent? df¤t.*¤= $39** ¤¤ d=2¤*=e= t¤ ·=¤ as the Third Circuit has interpreted Gibbs, there are Supp Emma" jms l§mm’_ t ci: C°mbi:?a“°n pcmmdcs
generally three ways in which il stnte—h1w claim may The gust! mg;] I cd .i’¥mc'°}“" fC;‘“mSA&w _mim
predominate for purposes of § 1.i'67(c)(2): (l) quantity pgpm; E: y 3. mi; dm a.sl°R° dcmm dccg[imgf¥‘
of evidence; (2) comprehensivcncss of remedy; and (3) cl gmt cfrcisgs ld 1;S;.:w'gOn_m1 mmmls. mma as
me ¤t stole td 32lZ“5ZJ%2—Z?i§Zr“§trlS i§’l§£§§ri§ri2‘$E$$I§ ZE li
In the instant case, Plaintifl‘s state-law claims, appropriate Order tbllows.
especially when combined with Defendants entirely
state—law counterclaim, predominate over the sole federal
claim in all three of these areas. First, evidence relating nl At a scheduling conference held on May
to the due process claim will be minimal: it will consist 27, 2004, time Court informed the parties of its
only of` testimony regarding the discrete issue of the intent to remand the state claims and gave
formal process accorded Plaintiff before he was Plaintiff the option of withdrawing his due
terminated. In contrast, evidence regarding the other process claim to allow the proceeding to be
claims will involve complicated testimony into areas remanded in its entirety. Plaintiffs counsel
including corporate governance, employment contracts, indicated that Plaintiff would accept this option,
and thirci~party payments, as well as physical [*4] but subsequently informed the Court that Plaintiff
records relating to all of the above. Second. Plaintiffs was unwilling to withdraw his due process claim,
remedy for his due process claim would be limited to and therefore "tlie case will be tried in both
either a hearing regarding the reasons For his termination federal and state court" (Letter from Scutti to
or nominal compensation for being deprived thereof. Cj? Court of "H13!04)
Perry vl Sirtderrnarm, 408 US 593. 602»O3, .33 L. Ed. 2d
570, 92 S. Cr. 2694 (1972) (noting that remedy for {*6]
violation of procedural due process could include hearing ORDER
but "wonid not, of course. entitle {plaintiff} to
rcinstatement"); Ersek v. Toivnsirip 0f`SprirtgfieId, IO2 AND NOW, this 16th day of July, 2004, it is
F3d 79, 84 (3d Cir. 1996) (holding that "principal relief"` hereby ORDERED that;
for termination of laintiff in violation of due process _ _ _
was hearing) This iemedy pales in cornpzirison to the Ccums I' H' imé {V at Plamugs Cumplmm and an
Passat damages he man was tr he were is prevail Cem Gt ¤==t==¤¤¤¤*t ‘>‘¤¤¤=¤t¤l¤=¤1 me REMANDED
on his wrongful termination or breech—of—contract claims m me COM 0f C°mm°" Plcas tn Ph’i°d°li°hm C°“mY"
(See Comp!. Ext C (setting base salary at $ 220,480 per BY TEE (;()(_;RT;
year).) Finally, the scope of the state-law issues far
exceeds that of Plaintiffs due process claim because the BEN': M* Schmwt 3*
former involve application of state tort and contract