UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tracy Coyne, Plaintiff

v. Case No. 14-cv-517-SM Opinion No.

The Trustees of Dartmouth College, Defendant

O R D E R

From August of 2013 through January of 2014, Dartmouth

College employed plaintiff, Teresa Coyne, as an assistant

lacrosse coach. After her employment was terminated, Coyne filed

a three-count writ in state court, asserting that Dartmouth

failed to pay her overtime wages to which she was entitled under

the Fair Labor Standards Act (“FLSA”). She also advanced state

common law claims for breach of contract and negligent infliction

of emotional distress.

Dartmouth timely removed the case to federal court, invoking

the court’s federal question jurisdiction (over the FLSA claim),

as well as its supplemental jurisdiction (over the common law

claims). Coyne now moves the court to remand her two common law

claims to state court, asserting that the court lacks

supplemental jurisdiction over them. Dartmouth objects. For the reasons discussed, Coyne’s motion to remand her

state law claims is denied.

Standard of Review

In 1990, Congress enacted

, “which granted

federal courts ‘supplemental jurisdiction’ or what had formerly

been referred to as ‘pendent jurisdiction’ and ‘ancillary

jurisdiction.” Vera-Lozano v. International Broadcasting,

(1st Cir. 1995). Subject to certain exceptions not

relevant here, section 1367 provides that:

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

(a) (emphasis supplied). See also

(c) (providing that if a removed civil action includes

claims not within the court’s original or supplemental

jurisdiction, the court shall sever those claims “and shall

remand the severed claims to the State court from which the

action was removed”). As the party invoking the court’s

supplemental jurisdiction, Dartmouth bears the burden of

demonstrating that such jurisdiction exists. See, e.g., Campbell

2 v. Gen. Dynamics Gov’t Sys. Corp.,

(1st Cir.

2005); Viqueira v. First Bank,

(1st Cir. 1998).

In construing the scope of federal courts’ supplemental

jurisdiction under § 1367, the court of appeals for this circuit

has held that, “a federal court may exercise supplemental

jurisdiction over a state claim whenever it is joined with a

federal claim and the two claims ‘derive from a common nucleus of

operative fact’ and the plaintiff ‘would ordinarily be expected

to try them both in one judicial proceeding.’” Pejepscot Indus.

Park, Inc. v. Maine Cent. R.R.,

(1st Cir. 2000)

(quoting United Mine Workers v. Gibbs,

(1966)).

Consequently, “supplemental jurisdiction has [] been exercised

where the facts underlying the federal and state claims

substantially overlap or where presentation of the federal claim

necessarily brings the facts underlying the state claim before

the court. Conversely, supplemental jurisdiction should not be

exercised when the federal and state claims rest on essentially

unrelated facts.” Chaluisan v. Simsmetal East LLC,

(S.D.N.Y. 2010) (citations and internal punctuation

omitted).

3 While the pertinent standard can be stated with relative

ease, its application can sometimes be vexing. This is one such

case.

Discussion

In support of its view that the court may properly exercise

supplemental jurisdiction over Coyne’s state law claims,

Dartmouth asserts that Coyne’s claim under the FLSA substantially

overlaps with her common law claims. To resolve plaintiff’s FLSA

claim and determine whether she was exempt (or not exempt) from

the statute’s overtime provisions, a thorough analysis of her job

duties and responsibilities is required.

[T]here are three distinct types of findings involved in determining whether an employee is exempt. First, the court must make findings concerning the so-called ‘historical facts’ of the case, such as determining an employee’s day-to-day duties. Second, the court must draw factual inferences from these historical facts, for instance, to conclude whether these day-to-day duties require ‘invention, imagination, or talent’ as required by applicable regulations. Finally, the trial court must reach the ultimate conclusion of whether an employee is exempt, based on both historical facts and factual inferences.

Reich v. John Alden Life Ins. Co.,

(1st Cir. 1997)

(citations omitted). Similarly, says Dartmouth, resolution of

plaintiff’s wrongful termination claims requires an examination

of the nature of plaintiff’s duties, how she performed them, when

she performed them, and whether she performed them in a

4 satisfactory manner. Thus, it asserts that, “[b]y its very

nature, plaintiff’s breach of contract claim is intertwined with

her FLSA claim,” defendant’s memorandum (document no. 7-1) at 3,

and both claims arise out of a common nucleus of operative facts.

Coyne disagrees, asserting that her FLSA claim is based on

facts entirely distinct from those underpinning her state law

claims. In support of her position, Coyne relies primarily on an

opinion from the Court of Appeals for the Third circuit, as well

as several district court opinions that followed in its wake.

See Lyon v. Whisman,

(3d Cir. 1995). In Lyon, the

plaintiff claimed her employer failed to pay her overtime wages,

as required by the FLSA. She also brought state common law tort

and contract claims, asserting that her employer failed to pay

her a promised bonus and then threatened to withhold a vested

bonus if she left the company. The district court exercised

federal question jurisdiction over plaintiff’s FLSA claim, and

supplemental jurisdiction over her state common law claims.

Plaintiff prevailed on all three claims at trial.

On appeal, the Court of Appeals for the Third Circuit

addressed whether the district court properly exercised

supplemental jurisdiction over plaintiff’s state law claims,

5 noting that such an inquiry is, necessarily, a fact-intensive one

that is unique to each case.

The test for a “common nucleus of operative facts” is not self-evident. Indeed, in trying to set out standards for supplemental jurisdiction and to apply them consistently, we observe that, like unhappy families, no two cases of supplemental jurisdiction are exactly alike.

Lyon,

(citation and internal punctuation omitted).

After examining the discrete facts presented in that case, the

court concluded that “the only link between [plaintiff’s] FLSA

and state law claims is the general employer-employee

relationship between the parties.”

. The court then

held that “there was an insufficient factual nexus between the

federal and state claims to establish a common nucleus of

operative facts,”

, for the district court to properly

exercise supplemental jurisdiction over the state claims.

Lyon’s FLSA claim involved very narrow, well-defined factual issues about hours worked during particular weeks. The facts relevant to her state law contract and tort claims, which involved [defendant’s] alleged underpayment of a bonus and its refusal to pay the bonus if Lyon started looking for another job, were quite distinct. In these circumstances it is clear that there is so little overlap between the evidence relevant to the FLSA and state claims, that there is no “common nucleus of operative fact” justifying supplemental jurisdiction over the state law claims. In fact, it would be charitable to characterize the

6 relationship of the federal and state claims as involving even a “loose” nexus. Thus, Article III bars federal jurisdiction.

Lyon,

.

There is, to be sure, support for the Third Circuit’s fairly

narrow interpretation of supplemental jurisdiction and section

1367. See, e.g., Shupe v. DBJ Enterprises, LLC,

,

5-6 (M.D.N.C. 2015) (“Federal courts have been reluctant to

exercise supplemental jurisdiction over state law claims and

counterclaims in the context of a FLSA suit, when the only

connection is the employee-employer relationship.”) (citations

and internal punctuation omitted). See also Wilhelm v. TLC Lawn

Care, Inc.,

, at *2-3 (D. Kan. 2008) (collecting

cases that “rejected the notion that the employer-employee

relationship single-handedly creates a common nucleus of

operative fact between the FLSA claim and peripheral state law

claims”).

Here, however, the court is persuaded that, on balance,

there is sufficient factual overlap between plaintiff’s federal

and state claims to warrant the exercise of supplemental

jurisdiction. First, and perhaps most importantly, the Court of

Appeals for the First Circuit has not embraced the Third

Circuit’s restrictive interpretation of Article III and

7 supplemental jurisdiction. See generally, Global Naps, Inc. v.

Verizon New England Inc.,

(1st Cir. 2010)

(“Courts and commentators have proposed a variety of possible

standards for supplemental jurisdiction. The Seventh Circuit,

relying on Gibbs, held that a counterclaim need only have a

‘loose factual connection’ between claims to satisfy § 1367.

Scholars have proposed a variety of other boundaries. Although

we need not adopt any of these approaches, we note that all are

broader than the transaction-or-occurrence test.”) (citations

omitted).

Indeed, in at least one recent case, the court of appeals

for this circuit concluded that supplemental jurisdiction is

fairly far-reaching. See Godin v. Schencks,

(1st

2010). In Godin, the plaintiff sued a school department board of

directors, alleging that her employment was terminated in

violation of her due process rights. She also brought state

common law defamation claims against three individual school

employees. In concluding that the district court could properly

exercise supplemental jurisdiction over plaintiff’s state law

claims, the court of appeals held:

While it might be questioned whether Godin’s state-law claims that her job termination was caused by defamatory comments from the individual defendants arise out of the same transaction as her federal claim that the schools did not afford due process in reaching

8 the termination decision, that is not the test. See Global NAPs, Inc. v. Verizon New England Inc.,

(1st Cir. 2010) (“No Supreme Court case had ever established the same transaction-or-occurrence test as the boundary of Article III case-or-controversy requirement.” (citing United Mine Workers v. Gibbs,

(1966))). We conclude it would not offend the Constitution to assert supplemental jurisdiction over Godin’s state-law claims. Accordingly, supplemental jurisdiction exists over Godin’s state-law claims under § 1367(a).

Id. at 83. See also Brennan v. King,

(1st Cir.

1998) (in a case involving claims under the ADA and

Rehabilitation Act, the district court had supplemental

jurisdiction over state law claims, including one for breach of

contract, because all claims arose out of a common core of

operative facts and related in some way to claimant’s HIV-

positive status).

Other district courts presented with claims similar to those

advanced in this case have held that supplemental jurisdiction

exists over plaintiff’s state law claims. See, e.g., Chaluisan,

(distinguishing/rejecting Lyon and noting

that “a thorough analysis of Plaintiff’s duties and compensation

package will be necessary to resolve his FLSA claims. . . .

Because such an analysis will be necessary here, there is far

more evidentiary overlap between Plaintiff’s FLSA claims and his

state common law claims [for breach of the employment contract

and unjust enrichment], and it can be fairly said that

9 presentation of the federal claim will necessarily bring the

facts underlying the state claims before the court.”) (citation

and internal punctuation omitted); Rivera v. Ndola Pharm. Corp.,

(E.D.N.Y. 2007) (noting that

“[t]ypically, supplemental jurisdiction is appropriate for claims

during the employment relationship because those claims arise

from the same underlying factual basis,” and holding that it had

jurisdiction over both plaintiff’s FLSA claim and her state

sexual harassment claim).

More recently, the United States District Court for the

District of Massachusetts was presented with a case involving

claims for unpaid wages under the FLSA, as well as state law

claims for misrepresentation, breach of contract, wrongful

termination, and tortious interference with contractual

relations. See Pacheco v. St. Luke’s Emergency Assocs.,

(D. Ma. 2012). In concluding that it had

supplemental jurisdiction over plaintiff’s state law claims, the

court held that “while the legal theories under which [plaintiff]

is proceeding under federal law are distinct and do not ‘derive

from’ the Employment Agreement, all of his claims, both federal

and state - arise from a common nucleus of operative facts.”

. In reaching that conclusion, the court reasoned as

follows:

10 In the instant case, as in many other similar cases, Pacheco’s federal employment claims “are not separate and independent from state law claims based on the same sequence of events.” Riggs [v. Plaid Pantries, Inc.,

(D. Or. 2001)], and cases cited. Pacheco is complaining of the same wrongs in both his state and federal claims, the claims involve substantially the same facts, and “there will be substantial overlap in the witnesses and evidence produced for each claim.” See, e.g., Saenz v. Austin Roofer’s Supply, LLC,

(W.D. Tex. 2009) (breach of contract claim and FLSA claim are not “separate and independent” under § 1441(c), and court must exercise supplemental jurisdiction over state claims where they involve a “single wrong” and “the parties will rely on substantially the same facts, namely hours worked, wages owed based on hours worked and commissions, and wages actually paid, and there will be substantial overlap in the witnesses and evidence produced for each claim.”).

Obviously, Pacheco’s claims under Mass. Gen. Laws ch. 149 and the FLSA for unpaid wages (Count V) and retaliation (Count VII) will involve the same nucleus of facts since they are pled together and the same facts are asserted for both the federal and state claims. See Fox,

, at *3 (plaintiffs’ unpaid wage claims and claims under the state wage act “are not separate and independent from the FLSA claims” and are based on a single injury, so that remand would be inappropriate under

(c)). The issues raised in these statutory claims are also incorporated in Pacheco’s other state law claims. Thus, Pacheco’s fundamental contentions are that he was not paid what was promised and due him and that he was wrongfully fired. These claims will necessarily involve, inter alia, testimony about his job responsibilities, the hours he worked, the hours for which he was paid, the amounts he was paid, the record- keeping practices of the company, and the events leading up to the termination of his employment - the same facts as his federal claims. Under such circumstances, this court finds that the claims are derived from a common nucleus of operative facts and, therefore, are not separate and independent claims. See, e.g., Lang v. DirecTV, Inc.,

,

11 427 & nn. 26 & 27 (E.D. La. 2010) (state claims alleging wrongful scheme to make improper deductions from plaintiff’s pay “involve a single wrong and substantially the same facts” as plaintiff’s FLSA claim; state claims were not “separate and independent” claims and would not be remanded under § 1441(c)), and numerous cases cited).

Id. at 143-44 (emphasis supplied; footnotes omitted).

Whether the court may properly exercise supplemental

jurisdiction over plaintiff’s state law claims is, to be sure, a

nuanced question. And, because the governing legal standard is

general in character, reasonable minds could certainly differ as

to its proper application to the specific facts presented in this

case. But, on balance, the court is persuaded that plaintiff’s

FLSA claim and her state common law claims are sufficiently

related to vest this court with supplemental jurisdiction over

those state law claims - particularly given both binding and

persuasive circuit precedent on this topic. Here, as in Pacheco,

resolution of both Coyne’s state and federal claims will involve

testimony about her job responsibilities, the hours she worked,

the hours for which she was paid, the amounts she was paid, the

record-keeping practices of the college, and the events leading

up to the termination of her employment. That is sufficient to

vest the court with supplemental jurisdiction over Coyne’s state

law claims.

12 Conclusion

For the foregoing reasons, as well as those set forth in

defendant’s memorandum (document no. 7-1), plaintiff’s motion to

remand her state law claims (document no. 5) is denied. Of

course, merely because the court has concluded that it may

properly exercise subject matter jurisdiction over plaintiff’s

state law claims, that does not preclude it from later declining

to exercise such jurisdiction if, for example, plaintiff’s FLSA

claim is resolved quickly. See, e.g., Camelio v. American Fed’n,

(1st Cir. 1998); O'Connor v. Commonwealth Gas

Co.,

(1st Cir. 2001).

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 30, 2015

cc: Geoffrey J. Vitt, Esq. Kathleen C. Peahl, Esq. Pierre A. Chabot, Esq.

13