GILBERT v. HEINE et al

Filing 16

MEMORANDUM OPINION/ORDER ADOPTING REPORT AND RECOMMENDATIONS denying w/out prejudice as moot 11 Motion to Consolidate Cases filed by ELLEN HEINE, 12 Report and Recommendations, granting 7 Motion to Remand to the SUPERIOR COURT OF NJ, BERGEN COUNTY, CHANCERY DIVISION, filed by STEPHEN L. GILBERT ***CIVIL CASE TERMINATED. Signed by Judge Esther Salas on 1/13/14. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
STEPHEN L. GILBERT, Special Administrator :
of the Estate of Edwin O. Gilbert
:
: Civil Action No. 13-4756 (ES) (JAD)
Plaintiff,
:
:
MEMORANDUM
v.
:
OPINION & ORDER
:
ELLEN HEINE, RUTHANN HUGHES,
:
RICHARD HOLLER, EVELYN ROBERTS,
:
and ANDREW TUSCANO,
:
:
Defendants.
:
__________________________________________:
SALAS, DISTRICT JUDGE
Pending before the Court is Plaintiff Stephen L. Gilbert’s motion to remand this action to
the Superior Court of New Jersey, Bergen County, Chancery Division, pursuant to 28 U.S.C. §
1446. (D.E. No. 7). This Court referred Plaintiff’s motion to the Magistrate Judge for a Report
and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). On November 15, 2013, Magistrate
Judge Dickson issued a Report and Recommendation (the “R&R”) that the undersigned grant
Plaintiff’s motion and remand this matter accordingly. (D.E. No. 12). Judge Dickson advised the
parties that they had until December 2, 2013 to file and serve any objections to the R&R pursuant
to Local Civil Rule 72.1(c)(2). (See D.E. No. 12).
On December 2, 2013, pro se Defendant Ellen Heine filed a one-page letter, objecting to
the R&R. (D.E. No. 26 (“Heine Obj.”)). No other Defendant has joined Defendant Heine in her
opposition or has filed a separate opposition. For the reasons set forth below, the Court adopts
Magistrate Judge Dickson’s R&R.

The Court provides the background of this action in summary fashion because Judge
Dickson provided the relevant factual and procedural background in the R&R. (D.E. No. 12). On
May 30, 2013, Plaintiff filed a Complaint in state court. (D.E. No. 1, Ex. 1). On August 8, 2013,
Defendants removed the case to federal court, asserting that removal was proper based upon
diversity of citizenship. (D.E. No. 1). Plaintiff moved to remand, arguing that the Notice of
Removal was untimely and because the “forum defendant rule” barred removal. Judge Dickson
issued an R&R, finding that the Notice of Removal was timely because Defendant Andrew
Tuscano properly removed the case within the thirty-day period, but that the “forum defendant
rule” precluded removal because three Defendants are citizens of New Jersey. (R&R at 4-5).
Accordingly, Judge Dickson recommended that the motion to remand be granted and that this
matter be remanded. (Id. at 5).
“When a litigant files an objection to a Report and Recommendation, the district court must
make a de novo determination of those portions to which the litigant objects.” Leonard Parness
Trucking Corp. v. Omnipoint Commc’ns, Inc., No. 13-4148, 2013 WL 6002900, at *2 (D.N.J. Nov.
12, 2013) (citing 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ. P. 72(b), and L. Civ. R. 72.1(c)(2)).
In her objection to the R&R, Defendant Heine appears to be arguing that this Court has
federal question subject matter jurisdiction over this matter because there is “case law [that] is not
relevant in the New Jersey state courts.” (Heine Obj. at 1). But, Judge Dickson properly found
that no such federal claims currently exist and, therefore, this Court does not have federal question
subject matter jurisdiction. Additionally, this Court finds that diversity jurisdiction pursuant to 28
U.S. C. § 1332 also does not exist because three Defendants are also citizens of New Jersey. See
Richards v. I-Flow Corp., No. 09-4002, 2010 WL 2516808, at *1 (D.N.J. June 11, 2010) (finding

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that the “forum defendant rule” precludes removal where “an action brought against more than
one defendant in New Jersey state court is removed under Section 1332, and . . . one of those
defendants is deemed to be a New Jersey citizen, then that action—even if jurisdiction under
Section 1332 exists—is nonetheless subject to remand”).
Defendant Heine also raises potential issues and claims in another action. (Heine Obj. at
1). Those statements do not bear on the instant motion and need to be addressed in this matter.
The Court has reviewed Defendant Heine’s Objection and Magistrate Judge Dickson’s
R&R, and for the reasons stated above and in Judge Dickson’s R&R,
IT IS on this 13th day of January, 2014,
ORDERED that this Court adopts Magistrate Judge Dickson’s R&R, (D.E. No. 12), as the
Opinion of this Court; and it is further
ORDERED that Plaintiff’s motion to remand, (D.E. No. 7), is GRANTED; and it is further
ORDERED that this matter is hereby REMANDED to the Superior Court of New Jersey,
Bergen County, Chancery Division; and it is further
ORDERED that the pending motion to consolidate, (D.E. No. 11), is denied without
prejudice as moot; and it is further
ORDERED that the Clerk of Court shall terminate motions at D.E. Nos. 7 and 11, and
mark this case CLOSED.

s/Esther Salas
Esther Salas, U.S.D.J.

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