DILLARD v. TD BANK, N.A. et al
Filing
24
OPINION. Signed by Judge Noel L. Hillman on 3/22/2021. (rtm, )
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 1 of 9 PageID: 211
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AYANA DILLARD,
1:20-cv-07886-NLH-JS
Plaintiff,
OPINION
v.
TD BANK, NA, KATIE GORDON,
JOHN DOES 1-10,
Defendants.
APPEARANCES
RACHEL S. LONDON
WALL & LONDON LLC
34 TANNER STREET
SUITE 4
HADDONFIELD, NJ 08033
On behalf of Plaintiff
EMILY J. DAHER
BALLARD SPAHR LLP
210 LAKE DRIVE EAST
CHERRY HILL, NJ 08002
On behalf of Defendants
HILLMAN, District Judge
This matter comes before the Court by way of Plaintiff
Ayana Dillard’s motion to remand or for reconsideration.
For
the reasons expressed below, Plaintiff’s motion will be granted.
BACKGROUND
Defendant TD Bank, NA removed Plaintiff’s case from New
Jersey Superior Court on June 29, 2020.
TD Bank averred in its
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 2 of 9 PageID: 212
Notice of Removal that this Court had subject matter
jurisdiction based on the diversity of citizenship of the
parties and an amount in controversy in excess of $75,000,
exclusive of interests and costs, pursuant to 28 U.S.C. §
1332(a).
Plaintiff is a citizen of New Jersey, and TD Bank is a
citizen of Delaware. 1
Plaintiff's complaint also named Defendant
Katie Gordon as an individual defendant, a citizen of New Jersey
who had not been served prior to the filing of TD Bank's removal
petition.
(Docket No. 1.)
On July 22, 2020, Plaintiff filed a “Consent MOTION to
remand” the matter to state court.
(Docket No. 11.)
This
consent “motion” was a one page, unbriefed, proposed consent
order stating that because Defendant Gordon had since been
properly served and had the same citizenship as Plaintiff, this
Court therefore lacked diversity jurisdiction over the matter.
The Court denied this consent motion in a Memorandum Opinion and
Order entered on July 28, 2020.
(Docket No. 12.)
That Opinion
and Order held that removal was proper because it was
TD Bank is a national bank association organized under the laws
of the United States of America, with its main offices located
in the State of Delaware at 2035 Limestone Road, Wilmington.
Accordingly, TD Bank is a citizen of Delaware for purposes of
determining diversity jurisdiction. See Wachovia Bank, N.A. v.
Schmidt, 546 U.S. 303 (2006) (holding that a national bank is,
for purposes of diversity jurisdiction, a citizen of the state
in which its main office is located as stated in its charter).
1
2
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 3 of 9 PageID: 213
effectuated before Gordon, the diversity-defeating forum
defendant, was served. 2
Following this the Plaintiff filed a motion stylized as
being for remand and for reconsideration on August 7, 2020.
(Docket No. 14.)
In her moving brief, Plaintiff primarily
argued that Defendant TD Bank lacked standing to remove the case
from state court because it was not properly served and only
received notice of the complaint through an electronic docket
monitoring service.
On August 25, 2020, Defendants filed a Brief in Opposition
to Plaintiff’s Motion to Remand and for Reconsideration in which
they argued that Plaintiff’s motion was untimely and that the
Third Circuit expressly approved of snap removal in Encompass. 3
This practice is commonly referred to as “snap removal.”
See Encompass Ins. Co. v. Stone Mansion Rest., Inc., 902 F.3d
147, 153 (3d Cir. 2018) (citing 28 U.S.C. § 1441(b)(2) (“A civil
action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action is brought.”) (emphasis added).
2
Defendants seem to imply in their opposition that TD Bank is
the true party-in-interest, but stop short of claiming
fraudulent joinder. See Docket No. 15, at 5 n.1 (“Simply
because Defendants seek to remain in federal court, where this
dispute truly belongs as the true defendant from whom Plaintiff
seeks relief is TD Bank, a non-forum and diverse defendant, does
not amount to ‘gamesmanship.’”). The Court notes that any such
argument was waived by the Defendants’ failure to raise the
issue in its Notice of Removal. Stanley v. Lowe’s Companies,
Inc., No. 19-15436 (MAS), 2020 WL 1531387, at *4-5 (D.N.J. Mar.
31, 2020).
3
3
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 4 of 9 PageID: 214
(Docket No. 15.)
Plaintiff then filed a Reply Brief in which
she asserted additional arguments based on lack of subject
matter jurisdiction, including that Encompass is distinguishable
because that case involved completely diverse parties.
(Docket
No. 16.)
Finally, four months after filing her Reply Brief,
Plaintiff filed a surreply in further support of her motion on
January 7, 2020.
(Docket No. 23.)
In her surreply, the
Plaintiff included as an exhibit a recent opinion from another
Judge of this Court commenting upon this case.
That opinion
disagreed with this Court’s denial of the parties’ consent
motion to remand because it viewed snap removal as improper when
there is a non-diverse defendant named in the complaint.
Keyser
v. Toyota Material Handling Northeast, Inc., No. 1:20-cv-10584
(JHR), 2020 WL 7481598, at *2 (D.N.J. Dec. 18, 2020).
DISCUSSION
Before turning to the substance of the parties’ arguments,
the Court must first address what arguments it may consider in
ruling on the instant motion for remand and for reconsideration.
As stated, the Plaintiff’s moving brief essentially contends
that TD Bank lacked standing to remove this case because it had
not been formally served and only received notice of the
complaint via an electronic docket monitoring service.
In her
Reply and Surreply, the Plaintiff presents another argument
4
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 5 of 9 PageID: 215
regarding the Court’s asserted lack of subject matter
jurisdiction.
The Court would normally disregard arguments raised for the
first time in a reply brief. 4
Thomas v. Corr. Med. Services,
Inc., No. 1:04–cv–3358 (NLH), 2009 WL 737105, at *13 (D.N.J.
March 17, 2009) (citing Bayer AG v. Schein Pharm., 129 F. Supp.
2d 705, 716 (D.N.J. 2001)).
However, this Court has a
continuing duty under 28 U.S.C. § 1447(c) to ensure it has
subject matter jurisdiction over the matters before it and must
remand if at any time before final judgment it appears to be
without jurisdiction.
Samuel-Bassett v. Kia Motors America,
Inc., 357 F.3d 392, 396 (3d Cir. 2004).
Accordingly, the Court
will examine its subject matter jurisdiction over this case
before assessing any other arguments put forward by Plaintiff.
In its prior Opinion and Order denying remand, this Court
relied on the Third Circuit’s opinion in Encompass Ins. Co. v.
Stone Mansion Rest., Inc., 902 F.3d 147 (3d Cir. 2018) for the
proposition that “a snap removal allows a non-forum defendant to
remove an action before the diversity-defeating forum defendant
The Court acknowledges that the Plaintiff included the phrase
“subject matter jurisdiction” in three separate sentences of her
moving brief. (Docket No. 14, at 1, 5, and 6.) However, apart
from these dispersed references to subject matter jurisdiction,
Plaintiff’s actual argument in the moving brief was that
Defendant TD Bank lacked standing to remove because it had not
been served.
4
5
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 6 of 9 PageID: 216
is served.”
(Docket No. 12, at 3.)
However, upon further
review, the Court agrees with Plaintiff that Encompass does not
support this proposition because it addressed snap removal in
the context of completely diverse parties, and therefore did not
speak to the propriety of snap removal before a diversitydefeating defendant is served. 5
See Encompass, 902 F.3d at 152-
53.
Indeed, before snap removal under 28 U.S.C. § 1441(b)(2)
becomes relevant, § 1441(a) separately provides that the Court
must have original jurisdiction over this matter, and §
1441(b)(2) itself further makes clear that the forum-defendant
rule only applies to an “action otherwise removable solely on
the basis of [diversity] jurisdiction . . .”
As there is no
federal question involved in this case, complete diversity of
the parties is thus required.
Accordingly, even if Encompass
would support TD Bank’s snap removal in this case were the
parties entirely diverse, it would still need to separately
demonstrate that the Court possesses diversity jurisdiction.
As courts in this Circuit have repeatedly recognized, the
citizenship of all named defendants must be considered in
determining whether diversity jurisdiction has been established,
The Plaintiff in Encompass was a citizen of Illinois, suing a
single Defendant that was a Pennsylvania corporation, in
Pennsylvania state court. Encompass, 902 F.3d at 149.
5
6
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 7 of 9 PageID: 217
regardless of whether they have yet been served.
See Victorin
v. Jones Lang LaSalle, No. 20-18123 (KM), 2021 WL 651200, at *5
(D.N.J. Feb. 18, 2021) (“[D]iversity is determined for removal
purposes based on the citizenship of defendants named in the
complaint; a court cannot ignore a defendant simply because that
defendant was not yet served.”); Mecca v. Ecosphere, No. 20-cv12769 (JMV)(MF), 2020 WL 6580855, at *4 (D.N.J. Nov. 10, 2020)
(“[Defendant is] incorrect in its assertion that only the
citizenship of defendants who have been served is relevant to
the diversity jurisdiction analysis.”); Reyes v. Sheika, No. CV.
19-20388 (ES)(MAH), 2020 WL 2735710, at *2 (D.N.J. May 7, 2020)
(finding unserved defendant's citizenship counts for diversity
purposes), report and recommendation adopted, 2020 WL 2732069
(D.N.J. May 26, 2020); Janaski v. Dettore, No. 15-0072 (JP),
2015 WL 1573670, at *1-2 (E.D. Pa. Apr. 9, 2015) (remanding
action because complete diversity between parties did not exist
on face of complaint notwithstanding plaintiffs’ failure to
serve non-diverse forum defendant).
Most simply, this is because “the citizenship of a forumdefendant (who is not properly served) does not offend the
language of 1441(b), [but] it does offend the language of 28
U.S.C. § 1332(a).”
Keyser, 2020 WL 7481598, at *3.
Following
this reasoning, other courts in this District recently faced
with similar factual circumstances have remanded.
7
Id.; Burga v.
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 8 of 9 PageID: 218
UniFirst Corp., No. 20-10849 (MCA)(LDW), 2020 WL 8452558, at *3
(D.N.J. Dec. 3, 2020), report & recommendation adopted, 2021 WL
395897 (D.N.J. Feb. 4, 2021); Stanley, 2020 WL 1531387, at *4-5.
Returning to the facts of this case, there is no dispute
that Plaintiff and Defendant Gordon are both citizens of New
Jersey.
Indeed, much like the Defendants in Stanley, the
Defendants here in their Notice of Removal “confusingly assert
that diversity jurisdiction exists while also conceding that
there is not complete diversity between Plaintiff and
Defendants.”
Stanley, 2020 WL 1531387, at *4.
See Docket No.
1, at *3 (“Katie Gordon (“Gordon”) has been named as an
individual defendant in the State Action and is a citizen of New
Jersey, but has not been served with the Complaint.”).
As such,
the complete diversity requirement of 28 U.S.C. § 1332(a) is
unsatisfied, thus leaving the Court without subject matter
jurisdiction over this case.
Johnson v. SmithKline Beecham
Corp., 724 F.3d 337, 346 (3d Cir. 2013) (citing Grand Union
Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., 316 F.3d
408, 410 (3d Cir. 2003)).
Under 28 U.S.C. § 1447(c), this Court must remand an action
to state court if it appears to lack subject matter jurisdiction
at any time before final judgment.
392, 396 (3d Cir. 2004).
Samuel-Bassett, 357 F.3d
Accordingly, the Court will grant the
Plaintiff’s Motion to Remand this matter to the Superior Court
8
Case 1:20-cv-07886-NLH-MJS Document 24 Filed 03/22/21 Page 9 of 9 PageID: 219
of New Jersey, Law Division, for Burlington County. 6
CONCLUSION
For the reasons expressed above, Plaintiff’s motion for
remand or reconsideration (Docket No. 14) will be granted.
An appropriate Order will be entered.
Date: March 22, 2021
At Camden, New Jersey
/s Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
The Court does not reach the Plaintiff’s alternative Motion for
Reconsideration because it finds that it lacks subject matter
jurisdiction. Indeed, this finding would “make any [further]
decree in the case void[.]” Brown v. Francis, 75 F.3d 860, 86465 (3d Cir. 1996) (quoting Abels v. State Farm Fire & Cas.
Co., 770 F.2d 26, 29 (3d Cir.1985)).
6
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?