PODOLSKI v. FIRST TRANSIT, INC. et al
Filing
29
OPINION. Signed by Judge Noel L. Hillman on 6/19/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARIANNE PODOLSKI,
Plaintiff,
1:17-cv-7045 (NLH/JS)
OPINION
v.
FIRST TRANSIT, INC., FIRST
STUDENT INC., NEW JERSEY
TRANSIT, CARL S WATTS, FIRST
TRANSIT BUS SERVICES
SOLUTIONS COMPANY, FIRST
TRANSIT, SOUTHEASTERN
PENNSYLVANIA TRANSPORATION
AUTHORITY, THERESA D WATTS,
and ADMINISTRATOR FOR THE
ESTATE OF CARL S. WATTS,
Defendants.
APPEARANCES:
MICHAEL J. DENNIN
THE LAW OFFICE OF VINCENT J. CIECKA
5709 WESTFIELD AVENUE
PENNSAUKEN, NJ 08110
On behalf of Plaintiff
JUSTIN A. BAYER
KANE PUGH KNOELL TROY & KRAMER, LLP
510 SWEDE STREET
NORRISTOWN, PA 19401-4886
On behalf of Defendants First Transit, Inc., First Student
Inc., New Jersey Transit, Carl S. Watts, Theresa D. Watts,
and Administrator for the Estate of Carl S. Watts
HILLMAN, District Judge
This is a personal injury action arising from a June 18,
2013 accident in which Plaintiff was injured after being struck
by the side mirror of a vehicle.
Plaintiff filed a complaint in
this matter on June 16, 2015 in the New Jersey Superior Court,
Law Division.
Among the named defendants were New Jersey
Transit and Carl S. Watts – both of whom it appears are nondiverse from Plaintiff.
Defendants filed a Notice of Removal on
September 13, 2017 alleging that there is complete diversity
between the parties “result[ing] from (i) the fraudulent joinder
of Defendant, New Jersey Transit, and (ii) the death of former
Defendant, Carl Watts” and that this Court has subject matter
jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
Plaintiff filed a Motion to Remand on November 7, 2017.
Defendants claim removal is proper because New Jersey
Transit was fraudulently joined and Watts died within thirty
days before the filing of the Notice of Removal, citing 28
U.S.C. § 1446(b)(3).
28 U.S.C. § 1446(b)(3) provides:
Except as provided in subsection (c), if the case stated
by the initial pleading is not removable, a notice of
removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one
which is or has become removable.
However, 28 U.S.C. § 1446(c)(1) states that, for removal
based on diversity of citizenship, “[a] case may not be removed
under subsection (b)(3) on the basis of jurisdiction conferred
by section 1332 more than 1 year after commencement of the
action, unless the district court finds that the plaintiff has
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acted in bad faith in order to prevent a defendant from removing
the action.”
Defendants’ filed their Notice of Removal over two
years after the commencement of this action in state court in
2015.
Defendants’ Petition in Support of the Notice of Removal
argues Plaintiff exhibited bad faith by suing Watts “against
whom it is now clear she never intended to prosecute a claim.”
Defendants argue including Watts as a defendant was done in bad
faith “as Watts was an employee of First Transit, whom First
Transit admitted was acting in the course and scope of his
employment.”
Defendants allege this was “confirm[ed]” by
“Plaintiff’s failure to indicate any intention to raise an
estate for Watts to substitute as a party defendant” at the time
of the purported removal.
Defendants argue “Plaintiff’s
willingness now to not proceed against the estate of Watts – the
only Defendant who conferred state court venue – can only be
taken as evidence that Watts was an unnecessary party and his
inclusion was in bad faith.”
The Court is not convinced that Plaintiffs acted in bad
faith to prevent Defendants from removing this action.
The
Court has been advised that Watts died on August 18, 2017 and
that Plaintiffs were made aware of his passing on September 6,
2017.
N.J.S.A. 3B:10-2 provides:
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If any person dies intestate, administration of the
intestate’s estate shall be granted to the surviving
spouse or domestic partner of the intestate, if he or
she will accept the administration, and, if not, or if
there be no surviving spouse or domestic partner, then
to the remaining heirs of the intestate, or some of them,
if they or any of them will accept the administration,
and, if none of them will accept the administration,
then
to
any
other
person
as
will
accept
the
administration.
If the intestate leaves no heirs justly entitled to
the administration of his estate, or if his heirs shall
not claim the administration within 40 days after the
death of the intestate, the Superior Court or
surrogate’s court may grant letters of administration to
any fit person applying therefor.
Forty days after Watts’ death was September 27, 2017.
Soon
after the expiration of this forty-day period, on October 19,
2017, it appears Plaintiff moved for an administrator to be
appointed over Watts’ estate.
An order was entered by the state
court on October 26, 2017 in response to this motion.
The Court discerns no bad faith here.
First, the Court is
cognizant that “[r]emoval statutes ‘are to be strictly construed
against removal and all doubts should be resolved in favor of
remand.’”
A.S. v. SmithKline Beecham Corp., 769 F.3d 204, 208
(3d Cir. 2014) (quoting Batoff v. State Farm Ins. Co., 977 F.2d
848, 851 (3d Cir. 1992)).
“[A] removing party who contends that
the plaintiff acted in bad faith to prevent removal bears a
‘heavy burden of persuasion . . . .’”
Plaxe v. Fiegura, No. 17-
1055, 2018 WL 2010025, at *3 (E.D. Pa. Apr. 27, 2018) (quoting
Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).
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Based on the allegations of the Complaint, it appears clear
that Watts was not named as a defendant in bad faith – indeed,
it is alleged he was the driver of the vehicle that struck
Plaintiff.
That no relief might ultimately come from Watts does
not mean Watts was included in the lawsuit in bad faith.
Further, clearly Watts’ death was not a matter within the
control of Plaintiff, nor was the forty-day period imposed by
New Jersey law before Plaintiff could seek an administrator over
the estate.
Plaintiff acted promptly in making a motion for the
appointment of an administrator and soon after in November 2017
moved for the administrator to be substituted as a defendant.
Defendants have failed to satisfy their “heavy burden” of
showing Plaintiff’s bad faith.
As Defendants have failed to demonstrate bad faith, and as
Defendants’ Notice of Removal was filed well over a year after
the commencement of this matter in state court, the Court will
grant Plaintiff’s Motion to Remand.
The Court will deny Plaintiff’s request for attorneys’ fees
and costs.
28 U.S.C. § 1447 provides that “[a]n order remanding
the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the
removal.”
However, “[a]bsent unusual circumstances, courts may
award attorney’s fees under § 1447(c) only where the removing
party lacked an objectively reasonable basis for seeking
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removal.
Conversely, when an objectively reasonable basis
exists, fees should be denied.”
Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005).
“In applying this rule,
district courts retain discretion to consider whether unusual
circumstances warrant a departure from the rule in a given
case.”
Id.
The Court finds, under the unique circumstances of
this case, that an award of attorneys’ fees is not warranted.
While the Court does not find Defendants’ suggestion of bad
faith meritorious, considering the short deadline in which
Defendants could file their Notice of Removal and the
information before them at the time, the Court will not award
attorneys’ fees in this matter.
Plaintiff’s request is denied.
Lastly, while this case was removed from the Camden County
Superior Court, Defendants argue the proper venue on remand is
the Atlantic County Superior Court.
‘send back.’
However, “’[r]emand’ means
It does not mean ‘send elsewhere.’
The only
remand contemplated by the removal statute is a remand ‘to the
State court from which it was removed.’”
Bloom v. Barry, 755
F.2d 356, 358 (3d Cir. 1985) (quoting 28 U.S.C. § 1447(d)).
The
Court will remand this case to the Camden County Superior Court.
An appropriate Order will be entered.
Date: June 19, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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