CARNEYS POINT TOWNSHIP v. E. I. DU PONT DE NEMOURS AND COMPANY et al

Filing 19

OPINION FILED. Signed by Judge Noel L. Hillman on 7/26/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARNEYS POINT TOWNSHIP,
1:17-cv-00264-NLH-JS
Plaintiff,
OPINION
v.
E. I. DU PONT DE NEMOURS AND
COMPANY and SHERYL A.
TELFORD,
Defendants.

APPEARANCES:
ALBERT I. TELSEY
CATHERINE PASTRIKOS KELLY
MATTHEW PATRICK DOLAN
MEYNER AND LANDIS LLP
ONE GATEWAY CENTER
ST 2500
NEWARK, NJ 07102
On behalf of Plaintiff
GLENN ANTHONY HARRIS
DAVID A. HAWORTH
BALLARD SPAHR LLP
210 LAKE DRIVE EAST
SUITE 200
CHERRY HILL, NJ 08002
On behalf of Defendants
HILLMAN, District Judge
This matter, which concerns the New Jersey Industrial Site
Recovery Act (“ISRA”), N.J.S.A. 13:1k-6, et seq., was removed
from New Jersey state court to this Court pursuant to 28 U.S.C.
§ 1332(a).

Defendants contend that this Court may exercise

subject matter jurisdiction over the matter because diversity of

citizenship exists between Plaintiff Carneys Point Township – a
citizen of New Jersey - and Defendant E. I. Du Pont De Nemours
and Company (“DuPont”) – a citizen of Delaware.

Defendants

further contend that the Court must ignore the New Jersey
citizenship of Defendant Sheryl A. Telford because Plaintiff
fraudulently joined her to the action for the sole reason to
prevent removal.
Shortly after the removal of Plaintiff’s complaint, Telford
filed a motion to dismiss all of Plaintiff’s claims against her,
DuPont filed a motion to dismiss one count against it, and
Plaintiff filed a motion to remand, arguing that Telford was
properly joined as a defendant, and Defendants’ only reason for
removing the matter was to derail the date for the order to show
cause hearing that had been set before the state court judge.
For the reasons expressed below, the Court will grant
Plaintiff’s motion to remand, and deny as moot Defendants’
motions to dismiss.
BACKGROUND
New Jersey enacted ISRA, formerly the Environmental Cleanup
Responsibility Act, in 1983 because New Jersey is home to many
industrial sites and has been saddled with the cost of
remediating many contaminated properties now abandoned. 1

1

See N.J.S.A. 13:1K-7 - Legislative findings and declarations:
“The Legislature finds that discharges of toxic chemicals dating
2

Plaintiff’s complaint explains that ISRA requires owners and
operators of industrial property or businesses in New Jersey to
cleanup all hazardous substances and wastes they discharged to
the environment prior to: (1) transferring the real property of
the industrial establishment; (2) transferring the stock and
non-real property assets of the industrial business; or (3)
executing a merger agreement, among other triggers.

If an owner

or operator cannot remediate the property prior to the transfer,
ISRA allows the owner or operator to provide the New Jersey
Department of Environmental Protection with the cost to
remediate the site and surrounding areas calculated by a
computer software program called RACER®.

The money must be

reserved and set aside as a "remediation funding source"
("RFS"), which the company can use to remediate the site.

The

RFS also acts like a "cookie jar" of money specifically set

back to early industrialization have left a legacy of
contaminated industrial property in this State; that in 1983,
due to the growing public awareness and concern of the risks to
the public health and the environment and the potential costs to
the State to clean up abandoned contaminated sites, the
‘Environmental Cleanup and Responsibility Act’ was enacted. The
Legislature also finds that the act's imposition of a cleanup
plan approval before the transfer or upon the closing of an
industrial establishment and the requirement to establish a
funding source for the cleanup are in the general public
interest by ensuring the discovery of contamination, by assuring
that funding for cleanup is set aside at the time it is
available from a transfer or closing, and by assuring that
contaminated property is not abandoned to the State for
cleanup.”
3

aside in the event the company fails to undertake or complete
the work.

In that instance, the NJDEP can use the money to

complete the cleanup, or affected municipalities can petition
the NJDEP to use the money to complete the cleanup.
ISRA also requires owners or operators who do not comply
with ISRA to pay base penalties of $10,000 to $20,000 per day
per violation until compliance is achieved.

Violators must also

disgorge the economic gain reaped as a result of not complying
with ISRA.

In addition, ISRA holds corporate officers or

managers who direct or authorize ISRA noncompliance to be
personally liable for penalties.
Plaintiff’s complaint relates that DuPont has been making
gunpowder, dyes and chemicals at Chambers Works, a 1,445-acre
site located at the foot of the Delaware Memorial Bridge, for
over 100 years, and over 100 million pounds of hazardous waste
has been discharged to soil and groundwater at the site over
that time period.

Plaintiff claims that the Townships of

Carneys Point, Pennsville, Mannington and Penns Grove with a
combined population of more than 28,000 residents have been
impacted by the discharge of these hazardous substances because
they have migrated as far as two miles from Chambers Works.
Plaintiff performed a RACER analysis and has calculated that the
cost of cleaning up the site and the surrounding area will be at
least $1.126 billion.
4

Plaintiff alleges that in 2014 and 2015, DuPont began a
series of corporate transfers to shed itself of its "dirty"
businesses to become a more attractive merger partner with Dow
Chemical Company ("Dow").

To accomplish that goal, DuPont

transferred its Titanium Technologies, Fluoroproducts and
Chemical Solutions businesses (collectively, the "Performance
Chemicals Businesses") and the properties associated with them,
including Chambers Works among others, to The Chemours Company
("Chemours") and its subsidiaries including Chemours FC, in
exchange for $3.9 billion and Chemours' assumption of much of
DuPont’s environmental liabilities.
Plaintiff claims that these transfers triggered ISRA at
Chambers Works three times, but DuPont intentionally did not
comply with ISRA by failing to remediate Chambers Works or post
$1 billion as an RFS.

Plaintiff also claims that Telford, as

Director of DuPont's Corporate Remediation Group, played an
integral role in assisting DuPont violate ISRA by knowingly
misinforming the NJDEP about DuPont's corporate transfers of
real estate, assets, stocks and liabilities.
In addition to the economic benefit DuPont has gained by
failing to post the $1 billion RFS, Plaintiff claims that the
daily penalties for DuPont's ISRA violations exceed $130
million, and the daily penalties for Telford's ISRA violations
exceed $120 million.

Plaintiff alleges that if DuPont’s merger
5

with Dow is executed, DuPont will no longer exist, and Chemours
- a company with almost 90% fewer assets than DuPont - may be
forced into bankruptcy and the Chambers Works site may be
abandoned.

As a result, Plaintiff claims that Chambers Works

would be one of the most polluted abandoned chemical
manufacturing sites in history, and an industrial nightmare that
the residents of New Jersey will be left to clean up without the
funds to do so, which is the exact scenario ISRA was designed to
prevent.
Plaintiff filed a 31-page, four count verified complaint
with hundreds of pages in exhibits in New Jersey Superior Court,
Salem County against DuPont and Telford for their alleged ISRA
violations, seeking, among other relief, an order to show cause
as to why the Superior Court should not find that DuPont
triggered ISRA on four occasions, that it must fund a $1.126
billion RFS, and that DuPont and Telford knowingly violated ISRA
and are liable for over $450 million in penalties.
Two weeks before the scheduled order to show cause hearing
in the Superior Court, DuPont removed the matter to this Court.
As explained above, DuPont contends that the basis for this
Court’s subject matter jurisdiction over the case is 28 U.S.C. §
1332(a) because there is diversity of citizenship between
Plaintiff and DuPont and the amount in controversy exceeds
$75,000.

DuPont also contends that Telford’s citizenship, which
6

is not diverse from Plaintiff’s, should be disregarded because
she was fraudulently joined.

Plaintiff rejects DuPont’s

characterization of its claims against Telford, and argues that
the case must be remanded because the Court lacks subject matter
jurisdiction to hear the action.
DISCUSSION
A.

Standard for Fraudulent Joinder

If a civil action is removed on the basis of U.S.C. §
1441(a), “all defendants who have been properly joined and
served must join in or consent to the removal of the action.”
28 U.S.C. § 1446(b)(2)(a).

Where there is more than one

defendant joined, the “rule of unanimity” requires that all
defendants consent to removal.

Di Loreto v. Costigan, 351 F.

App’x 747, 752 (3d Cir. 2009).

There exists an exception to

this rule: the doctrine of fraudulent joinder.

In re Briscoe,

448 F.3d 201, 215–16 (3d Cir. 2006).
The fraudulent joinder doctrine allows a diverse defendant
to remove a civil action, notwithstanding the presence of a nondiverse co-defendant, if it can establish that the non-diverse
defendant was “fraudulently named or joined solely to defeat
diversity jurisdiction.”

Id. at 216.

If the non-diverse party

has been fraudulently joined, it will be dismissed and the
action will remain in federal court.

Id. at 215–16.

If the

non-diverse party has not been fraudulently joined, it will
7

remain in the suit, and the case will be remanded for lack of
diversity.

Id.

Joinder is fraudulent if “there is no

reasonable basis in fact or colorable ground supporting the
claim against the joined defendant, or no real intention in good
faith to prosecute the action against the defendant or seek a
joint judgment.”

Id. at 216 (citing Abels v. State Farm Fire &

Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)).
The removing defendant bears a “heavy burden of persuasion”
in proving that a co-defendant has been joined fraudulently,
because “removal statutes are to be strictly construed against
removal and all doubts should be resolved in favor of remand.”
Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992).
The Third Circuit has stated that joinder is proper “if there is
even a possibility that a state court would find that the
complaint states a cause of action against any one of the
resident defendants.”

Id.

Unless the claims against the non-

diverse defendant are “wholly insubstantial and frivolous,”
joinder is not fraudulent.

Id.

In applying the fraudulent joinder standard, a court is to
“assume as true all factual allegations of the complaint” and
“resolve any uncertainties as to the current state of
controlling substantive law in favor of the plaintiff.”
852.

Id. at

In considering claims against the non-diverse defendant,

the court cannot convert its jurisdictional inquiry into a
8

motion to dismiss.

Id.

It is possible that a party may not

have been fraudulently joined, but may still be ultimately
dismissed for failure to state a claim upon which relief may be
granted.

Id.

The court must only decide whether a cause of

action exists, because “to inquire any further into the legal
merits would be inappropriate in a preliminary jurisdictional
determination.”
B.

Briscoe, 448 F.3d at 219.

Analysis
1.

Whether Telford was fraudulently joined

Under the New Jersey Environmental Rights Act, “Any person
may commence a civil action in a court of competent jurisdiction
against any other person alleged to be in violation of any
statute, regulation or ordinance which is designed to prevent or
minimize pollution, impairment or destruction of the
environment.”

N.J.S.A. 2A:35A-4(a).

The NJERA defines “person”

as: “corporations, companies, associations, societies, firms,
partnerships and joint stock companies, individuals, the State,
any political subdivision of the State and any agency or
instrumentality of the State or of any political subdivision of
the State.”

N.J.S.A. 2A:35A-3(a).

Accordingly, Plaintiff filed

its civil action against DuPont and Telford for violating ISRA.
“A person” who violates ISRA is subject to civil penalties.
ISRA provides:
a. Whenever the Commissioner of Environmental Protection
9

finds that a person has violated any provision of this act,
or any rule or regulation adopted pursuant thereto, or
knowingly makes a false statement, representation, or
certification in any application, record, or other document
filed or required to be maintained pursuant to P.L.1983, c.
330 (C.13:1K-6 et al.), the commissioner may:
(1) issue an order requiring the person found to be in
violation to comply in accordance with subsection b. of
this section;
(2) bring a civil action in accordance with subsection c.
of this section;
(3) levy a civil administrative penalty in accordance with
subsection d. of this section; or
(4) bring an action for a civil penalty in accordance with
subsection e. of this section.
Pursuit of any of the remedies specified under this section
shall not preclude the seeking of any other remedy
specified.
Any officer or management official of an industrial
establishment who knowingly directs or authorizes the
violation of any provisions of P.L.1983, c. 330 (C.13:1K-6
et al.) shall be personally liable for the penalties
established in this section.
N.J.S.A. 13:1K-13.1(a).
Plaintiff’s complaint contends that Telford violated ISRA’s
civil penalties provision, alleging the following:
52. Sheryl A. Telford was the Director of DuPont's
Remediation Group and a former official involved with DEP
site remediation policy. After meeting with DEP she wrote
DEP a letter on January 30, 2015 to try and convince DEP
that even though DuPont was going to transfer a 100%
controlling interest of Chemours stock to DuPont
shareholders the stock transfer should be exempt from ISRA
as a "corporate reorganization not substantially affecting
ownership" of Chambers Works. This exemption provides
that, even if a stock transfer is greater than a 50%
controlling interest it can, in limited circumstances,
10

still be considered exempt from ISRA, but only if (1) the
transferor and transferee are commonly owned entities and
(2) the net worth of the transferee is about the same as
the net worth of the transferor; that is, not more than 10%
less than the net worth of the transferor. This ISRA
exemption applies to the transfer of assets or stock but
does not apply to the transfer of real estate.
53. Ms. Telford's January 30, 2015 letter was deceptive.
She did not tell DEP that DuPont had just transferred the
real estate to Chemours FC a week earlier on January 23,
2015 because the exemption did not apply to a real estate
transfer and she did not want to alert DEP that the First
ISRA Trigger had just happened.
54. With regard to the Second ISRA Trigger (stock
transfer), Ms. Telford did not tell DEP (1) that DuPont's
shareholders were independent of DuPont and therefore not
under common ownership and (2) she did not tell DEP that
the net worth of Chemours was 87% less than the net worth
of DuPont - significantly greater than the 10% threshold
allowed by the exemption. In other words, the ISRA
exemption for a corporate reorganization not substantially
affecting ownership did not apply to the Second ISRA
Trigger. To the contrary, DuPont's transfer of 100% of the
Performance Chemical Businesses to Chemours was by
definition a corporate reorganization that did
substantially affect ownership.
55. Ms. Telford also did not tell DEP that the net worth of
Chemours might be even less than 87% that of DuPont's net
worth because she did not tell DEP that the cleanup of
Chambers Works is over $1 Billion. She also did not tell
DEP that Chemours had entered into a Separation Agreement
with DuPont agreeing to indemnify DuPont from much of its
worldwide environmental responsibility, including ISRA and
thousands of PFOA lawsuits pending in Ohio and West
Virginia that may result in huge judgments against Chemours
- expenses that would further dilute the net worth of
Chemours.
56. As a DuPont manager responsible for ensuring
environmental compliance and a former DEP official, Telford
knew DuPont's actions triggered ISRA and her actions to
misdirect DEP violated ISRA.
57. DEP did not respond to Ms. Telford's letter with regard
11

to ISRA applicability at Chambers Works. DuPont
nevertheless proceeded with its transfers without
submitting a GIN to DEP or Carneys Point and without
remediating the Site or posting the RFS in violation of
ISRA.
58. DuPont's scheme to separate itself from its Performance
Chemicals Businesses including Chambers Works was designed
to saddle the cost of cleaning up the Site on the state of
New Jersey and residents of Carneys Point in order for
DuPont to save expenses and reap profits.
59. DuPont avoided ISRA compliance at Chambers Works by not
cleaning up the Site or posting the RFS in excess of $1B,
which failure has jeopardized the health, safety, welfare
and economic vitality of Carneys Point and its surrounding
areas.
60. ISRA was designed specifically to deny DuPont the
opportunity to off load its contaminated New Jersey sites
to an undercapitalized company without first remediating
the site or posting an RFS but that is just what DuPont
did. DuPont's conduct violates ISRA and is unacceptable.
Carneys Point brings this ERA action to compel DuPont to
comply with ISRA and pay penalties for noncompliance,
including the disgorgement of economic gain.
(Compl. ¶¶ 52-60, Docket no. 1-1 at 16-18.)
Defendants argue that because Telford cannot be held liable
under ISRA, and because Plaintiff’s complaint fails to even
allege her liability under ISRA, Telford is an improper party
and must not be considered for diversity purposes.

More

specifically, Defendants contend that Plaintiff can succeed on
its cause of action for personal liability against Telford only
if the complaint alleges, and Plaintiff ultimately proves, that:
(1) she was an officer or a “management official” of DuPont with
the authority to “direct or authorize” DuPont to violate ISRA;

12

and (2) she actually directed or authorized DuPont to violate
ISRA in conjunction with the Restructuring; and (3) she directed
or authorized the violation of ISRA with full knowledge that an
ISRA violation would result from her conduct.
Defendants argue that Plaintiff’s complaint does not allege
that she was a “management official,” which means that she was
an individual having the authority to make the decision for
DuPont about whether or not to comply with ISRA, and that she
actually made the decision that DuPont should not comply with
ISRA.

In short summary of Defendants’ detailed arguments in

their 46-page brief as to why Telford is not a proper party to
the case, Defendants contend: (1) even though Telford signed the
letter referenced in Plaintiff’s complaint, lawyers or
scientists actually drafted it; (2) the timing of the letter
refutes Plaintiff’s claims of trigger dates; and (3) Telford
states in a declaration that she has never been an officer or
management official at DuPont and never had the authority to
direct any violation of ISRA.
When determining whether a defendant has been fraudulently
joined, the Court must focus on whether the plaintiff’s claims
against that defendant are wholly insubstantial and frivolous,
without any reasonable basis in fact.

In doing so, the Court

must accept as true all the allegations in the complaint, and
resolve any uncertainties in the plaintiff’s favor.
13

Defendants’

opposition to Plaintiff’s motion to remand has asked the Court
to veer from the threshold jurisdictional issue and improperly
delve into the merits of Plaintiff’s claims against Telford.
It cannot be held frivolous to claim that Telford, the
director of DuPont’s remediation group who was “a DuPont manager
responsible for ensuring environmental compliance and a former
DEP official” and “knew DuPont’s actions triggered ISRA,” and
who signed a letter sent to the NJDEP asking that DuPont’s stock
transfer be considered exempt from ISRA while knowing that she
misinformed the NJDEP about the stock transfer, is an “officer
or management official of an industrial establishment who
knowingly directs or authorizes the violation of any provisions”
of ISRA.

N.J.S.A. 13:1K-13.1(a).

Moreover, because ISRA provides that a civil action and
civil penalties can be brought against “a person” who has
violated ISRA, or “a person” who “knowingly makes a false
statement, representation, or certification in any application,
record, or other document filed or required to be maintained”
pursuant to ISRA, see id., Plaintiff’s claims against Telford in
its complaint that allege such violations cannot be held to be
without any reasonable basis.
Even though Telford may have persuasive and prevailing
arguments as to why Plaintiff cannot maintain its claims against
her when analyzed under the motion to dismiss standard, the
14

assessment of fraudulent joinder for jurisdictional purposes is
much less exacting.

See Batoff, 977 F.2d at 852 (“The inquiry

into the validity of a complaint triggered by a motion to
dismiss under Rule 12(b)(6) is more searching than that
permissible when a party makes a claim of fraudulent joinder. .
. . [I]t is possible that a party is not fraudulently joined,
but that the claim against that party ultimately is dismissed
for failure to state a claim upon which relief may be
granted.”).

It is clear that Plaintiff’s allegations against

Telford meet the possibility-of-a-claim test for determining
whether she was properly joined as a defendant.

See Boyer, 913

F.2d at 111 (“If there is even a possibility that a state court
would find that the complaint states a cause of action against
any one of the resident defendants, the federal court must find
that joinder was proper and remand the case to state court.”).
Consequently, Defendants’ removal of the action based on the
fraudulent joinder doctrine is unavailing, and the matter must
be remanded to New Jersey Superior Court.
2.

Whether Plaintiff is entitled to attorney’s fees
and costs

Plaintiff’s motion to remand has requested attorney’s fees
and costs pursuant to 28 U.S.C. § 1447(c), which provides in
relevant part, “If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the

15

case shall be remanded.

An order remanding the case may require

payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.”

Plaintiff

argues that the only reason Defendants removed the action on the
meritless fraudulent joinder argument is to delay the matter,
which was set for an order to show cause hearing before the
state court judge in two weeks.

On the day Defendants’ brief in

opposition to Plaintiff’s verified complaint and order to show
cause was due, Defendants removed the case instead.

Plaintiffs

argue that Defendants’ removal was in bad faith because
Defendants were well-aware of Telford’s direct connection with
DuPont’s noncompliance of ISRA, and clearly understood the
standard for assessing whether her inclusion as a defendant was
proper.

Plaintiffs argue that Telford would have been named as

a defendant regardless of her state of citizenship.
Based on Defendants’ tactic to delay the proceedings
through a baseless removal, Plaintiff contends that it is
entitled to the costs of having to file a remand motion, as well
as to oppose Defendants’ motions to dismiss.

In response,

Defendants, not surprisingly, refute that their removal based on
the fraudulent joinder doctrine was in bad faith or an
intentional tactic to delay the proceedings, and it was instead
objectively reasonable.
The U.S. Supreme Court comprehensively analyzed the
16

availability of fees and costs under § 1447(c) when a case is
remanded.

The Supreme Court explained:

By enacting the removal statute, Congress granted a right
to a federal forum to a limited class of state-court
defendants. If fee shifting were automatic, defendants
might choose to exercise this right only in cases where the
right to remove was obvious. But there is no reason to
suppose Congress meant to confer a right to remove, while
at the same time discouraging its exercise in all but
obvious cases. Congress, however, would not have enacted §
1447(c) if its only concern were avoiding deterrence of
proper removals. Instead, Congress thought fee shifting
appropriate in some cases. The process of removing a case
to federal court and then having it remanded back to state
court delays resolution of the case, imposes additional
costs on both parties, and wastes judicial resources.
Assessing costs and fees on remand reduces the
attractiveness of removal as a method for delaying
litigation and imposing costs on the plaintiff. The
appropriate test for awarding fees under § 1447(c) should
recognize the desire to deter removals sought for the
purpose of prolonging litigation and imposing costs on the
opposing party, while not undermining Congress' basic
decision to afford defendants a right to remove as a
general matter, when the statutory criteria are satisfied.
In light of these large objectives, the standard for
awarding fees should turn on the reasonableness of the
removal. Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the removing
party lacked an objectively reasonable basis for seeking
removal. Conversely, when an objectively reasonable basis
exists, fees should be denied. In applying this rule,
district courts retain discretion to consider whether
unusual circumstances warrant a departure from the rule in
a given case.
Martin v. Franklin Capital Corp., 546 U.S. 132, 140–41 (2005)
(internal quotations and citations omitted).
Defendants’ removal of Plaintiff’s complaint two weeks
before a hearing which had the potential of imposing over a

17

billion dollar judgment against DuPont and a several hundred
thousand dollar judgment against Telford under a rarely
successful theory of fraudulent joinder is indeed suspicious. 2
Defendants also fail to provide any substantive argument for why
Plaintiff would intentionally include a non-diverse defendant,
other than to summarily conclude Plaintiff must have wished to
avoid its case being heard in federal court. 3

2

See Miloseska v. Liberty Travel, Inc., 2012 WL 6771978, at *4
(D.N.J. 2012) (citing Brown v. Jevic, 575 F.3d 322, 327 (3d Cir.
2009) (“The cases where courts in this circuit have found
fraudulent joinder are few and often it is only when one can say
with reasonable certainty that a claim against a party cannot
stand, such as when a party cannot be sued because of its status
or because the statute of limitations has expired.”).
3

This point raises the issue of whether the matter belongs in
this Court even if subject matter jurisdiction existed. A
federal court has the “virtually unflagging obligation” to
exercise the jurisdiction given it, but abstention from the
exercise of federal jurisdiction is appropriate and necessary in
several contexts. See Colorado River Water Conservation Dist.
v. U. S., 424 U.S. 800, 817 (1976). One area where abstention
may be required was announced in Burford v. Sun Oil Co., 319
U.S. 315 (1943), where the Supreme Court “held that federal
courts should exercise equitable discretion and refrain from
exercising authority over questions involving basic problems of
state policy pertaining to the regulation of important state
natural resources, even if federal court jurisdiction is
predicated on diversity of citizenship.” Grode v. Mutual Fire,
Marine and Inland Ins. Co., 8 F.3d 953, 956–57 (3d Cir. 1993)
(discussing Burford and other abstention doctrines). The
Burford abstention is usually applied to state regulatory
matters such as establishing rates for natural gas or
transportation, discontinuing railroad passenger services,
discontinuing intrastate air service, or applying state eminent
domain procedures. Id. (citing cases).
A strong argument could be made that even if subject matter
jurisdiction could be established in this case, the Court would
18

The Court recognizes that it has been over six months since
the order to show cause hearing would have occurred in New
Jersey state court.

This Court’s congested docket is the fault

for that delay, however, and not Defendants.

But even if

Defendants hoped to rely upon the Court’s congested docket to
delay Plaintiff’s case against them, Defendants’ removal of
Plaintiff’s case did not preclude Plaintiff from filing,
contemporaneous with its motion to remand, an application for
emergent relief under Federal Civil Procedure Rule 65(a) and
Local Civil Rule 65.1, which are akin to the New Jersey Court
Rule 4:67(a) invoked by Plaintiff’s complaint in state court. 4
If Plaintiff took that course, it would have triggered immediate
action by this Court to assess the fraudulent joinder argument
in the context of addressing Plaintiff’s request for an order to

nevertheless be compelled to abstain under Burford and remand
the matter because ISRA is a complex regulatory environmental
statute unique to New Jersey which presents substantial public
importance, and in which the federal court should not become
enmeshed. See New Orleans Public Service, Inc. v. Council of
City of New Orleans, 491 U.S. 350, 361 (1989) (explaining that
“Burford is concerned with protecting complex state
administrative processes from undue federal interference”). The
Court does not need to make such a determination, however,
because the matter must be remanded for lack of diversity
jurisdiction.
4

Plaintiff’s complaint was originally filed in Chancery Court,
but was transferred to the Law Division. Even though the N.J.
court rule concerns summary actions, these three rules set forth
the procedures for the entry of an order to show cause based on
a verified complaint.
19

show cause.
Thus, Defendants’ removal of Plaintiff’s case did not, by
itself, cause significant delay of a hearing on Plaintiff’s
verified complaint and request for an order to show cause, as
emergent relief was available in this Court.

Moreover, as

Plaintiff points out, the clean-up of the area around the 28,000
residents affected by the Chambers Works site will –
unfortunately - take 1,000 years to complete, so the delay to
the cleanup process caused by Defendants’ removal appears
minimal.
In short, even though Defendants’ fraudulent joinder
argument is not persuasive, it cannot be found to be objectively
unreasonable, particularly if Telford’s statements in her
declaration are found to be credible down the line.

Defendants’

removal of Plaintiff’s case does not present the “unusual
circumstances” that warrant a departure from the rule that a
court may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal.

Consequently, Plaintiff’s request for an award

of attorney’s fees and costs will be denied. 5

5

The filing of Telford’s motion to dismiss was unnecessary,
because in order for the Court to have considered that motion,
subject matter jurisdiction must have first been established,
which would have been accomplished by the dismissal of Telford
from the case. See In re Briscoe, 448 F.3d 201, 216 (3d Cir.
2006) (explaining that once a district court determines that the
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CONCLUSION
Defendants’ attempt to remove Plaintiff’s case from state
court to this Court on the basis that Plaintiff fraudulently
joined the Director of DuPont's Remediation Group as a defendant
was not objectively unreasonable, but it is unavailing.
Plaintiff did not improperly join Telford to the action, and her
New Jersey citizenship results in a lack of diversity between
Plaintiff and Defendants.

Plaintiff’s motion to remand will be

granted, and the case returned to New Jersey state court.
Defendants’ motions to dismiss will be denied as moot.
An appropriate Order will be entered.

Date:
July 26, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

joinder of a defendant was “fraudulent,” the court can
“disregard, for jurisdictional purposes, the citizenship of
certain nondiverse defendants, assume jurisdiction over a case,
dismiss the nondiverse defendants, and thereby retain
jurisdiction”). Even though Plaintiff seeks attorney’s fees and
costs associated with filing of its motion to remand as well as
filing its opposition to Telford’s motion to dismiss, Plaintiff
could have requested that its opposition to Telford’s motion be
stayed pending the outcome of its motion to remand. See, e.g.,
Jones v. Virtua Health, Inc., 2017 WL 77411, at *1 (D.N.J. 2017)
(noting that the Court had granted Plaintiff's request to stay
further briefing on the motion for summary judgment pending the
Court's decision on the motion to remand). In the event that
Telford renews her motion to dismiss upon remand, Plaintiff’s
opposition is already prepared, and the costs of its preparation
most likely would have been incurred anyway even if the case had
not been removed.

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