WINDSOR AT MARINER'S TOWER v. GREENE

Filing 9

REPORT AND RECOMMENDATIONS re 4 MOTION to Remand filed by WINDSOR AT MARINER'S TOWER Objections, if any, to R&R due by 1/31/2014. Signed by Magistrate Judge Mark Falk on 1/17/2014. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WINDSOR AT MARINER’S TOWER,

Civil Action No. 13-5128 (WJM)

Plaintiff,
v.
REPORT AND RECOMMENDATION

CARL GREENE,
Defendant.

FALK, U.S.M.J.
This matter comes before the Court upon Plaintiff’s motion to remand this case to state
court. [CM/ECF No. 4.] Defendant opposes the motion. The Court decides it on the papers.
Fed.R.Civ.P. 78. For the reasons discussed below, it is respectfully recommended that Plaintiff’s
motion to remand be granted.
BACKGROUND
Pro se Defendant Carl Greene (“Greene” or “Defendant”) rents an apartment owned by
Plaintiff Windsor at Mariner’s Tower (“Windsor” or “Plaintiff”). The apartment is located in
Edgewater, New Jersey. Greene resides in the apartment.
On August 6, 2013, Windsor filed a complaint for non-payment of rent in New Jersey
Superior Court, Bergen County, Landlord/Tenant Division against Greene seeking recovery of

rent for the month of July 2013.1 On August 27, 2013, Defendant removed the action to this
Court on grounds of diversity2 and federal question jurisdiction pursuant to 28 U.S.C. §§ 1441(a)
and 1443, respectively. (Notice of Removal.) Defendant’s Notice of Removal did not have a
copy of the state court pleading attached.
On October 21, 2013, Windsor moved to remand this case to state court. Windsor asserts
three arguments in support of remand. First, Windsor argues that Defendant failed to comply
with the procedural requirements of 28 U.S.C. § 1446(a) governing removal, in particular, that
Defendant failed to state the grounds for removal and failed to attach a copy of the state court
pleading. Second, Windsor contends that because Defendant resides in the apartment in New
Jersey, the case is properly venued in state court. Windsor also claims that the amount in
controversy is well below the statutory minimum of $75,000. Third, Windsor argues that there is
no federal cause of action pending before this Court.
Opposing the motion, Defendant argues that the parties are diverse. Defendant also
claims that the equitable relief sought and the potential recovery of rent makes the amount in
controversy more than $75,000. Finally, although acknowledging that he could not file a
counterclaim in the state court action for violation of his civil rights, Defendant maintains that he
has a valid claim for discrimination based on ethnicity and disability and that this Court has

1

Neither party has submitted a copy of the Complaint filed in state court nor was a copy
of the pleading attached to Defendant’s Notice of Removal. The Court therefore relies on the
parties’ representations in their briefs as to when the pleading was filed and the allegations
contained therein.
2

28 U.S.C. § 1332 provides that “district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between
citizens of different States[.]” 28 U.S.C. 1332(a)(1).
2

jurisdiction over those unpled claims.
DISCUSSION
“[T]he party asserting federal jurisdiction in a removal case bears the burden of showing,
at all stages of the litigation, that the case is properly before the federal court.” Frederico v.
Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). Removal is strictly construed and all doubts are
resolved in favor of remand. See Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d
Cir. 2004).
The Court has reviewed the papers submitted and concludes that the case should be
remanded for the following reasons.
One, Defendant has failed to demonstrate by a preponderance of the evidence that the
parties are diverse. See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir.
2006). The facts advanced by Defendant3 surrounding the parties’ citizenship are inconsistent
and do not provide a sufficient basis upon which to make a finding of diversity. Defendant has
not provided a copy of the Complaint which may contain a statement of the parties’ citizenship.
He has not provided a sworn statement containing facts relative to his domicile. The Court has
no reason to accept as true any one fact more than the other. Because he has failed to submit a
signed declaration or attach the state court pleading which conceivably could provide a grounds
upon which to make a ruling, the Court is left to speculate as to whether the parties are diverse.
See Levy v. Weissman, 671 F.2d 766, 767 (3d Cir. 1982) (courts look to the face of the
3

Defendant offers conflicting statements regarding citizenship of the parties. Specifically,
Defendant’s Notice of Removal indicates that Plaintiff is a citizen of Massachusetts and
Defendant is a citizen of Pennsylvania. Defendant’s brief, however, argues an entirely different
set of facts: that Plaintiff is a citizen of New Jersey and that Defendant is domiciled in
Massachusetts. In addition to these inconsistent statements, Defendant submits yet a third
representation, in the form of an unsigned declaration, wherein he indicates that his “first
domicile” was established in Massachusetts (perhaps implying that there was a subsequent one)
and that he does not intend to remain in New Jersey.
3

complaint to determine if an action may be removed on the basis of diversity jurisdiction).4
Defendant’s submissions fail to show with any degree of certainty the citizenship of either party.
Defendant has failed to carry his burden here.
Two, Defendant has failed to demonstrate by a preponderance of the evidence that the
amount in controversy exceeds $75,000. See 28 U.S.C. § 1446(c)(2)(A)(ii)-(B); Frederico v.
Home Depot, 507 F.3d 188, 193 (3d Cir. 2007).5 Plaintiff filed its Complaint seeking rent for
the month of July 2013 which amounted to $3,571, including costs and fees. Plaintiff indicates
in its reply brief that Defendant presently owes approximately $20,000 in rent. There is nothing
in the record that would suggest Plaintiff is making any other claims for damages other than the
rent and some nominal related costs and fees.
Defendant’s argument that the amount of controversy should be measured by the amount
of future payments due under the lease is wholly unsubstantiated. To begin with, it is unclear
whether the parties entered into a written lease. To the extent there is a lease, Defendant has not
provided the Court with a copy or supplied any information as to the amount of the purported
future payments. Defendant’s “prediction” that there may be a rent increase of as much as 15%
in the coming years is also unfounded and has no bearing on the amount sought to be recovered
4

Citing New Jersey Rules governing venue, Windsor argues that because Greene is
residing in an apartment in New Jersey, the case is properly venued in state court and therefore
the domicile of Defendant is of no relevance. Windsor appears to confuse jurisdiction with
venue. A determination of Defendant’s domicile, not mere residence, is essential for a
jurisdictional analysis. The fact that Defendant resides in an apartment in New Jersey does not
necessarily make him a citizen of the state. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.
1972) (“[W]here one lives is prima facie evidence of domicile, but mere residency in a state is
insufficient for purposes of diversity.”). Nevertheless, for the reasons expressed above, the Court
is without sufficient information to make a determination of citizenship in this case.
5

Where, as in New Jersey, the State practice does not permit demand for a specific sum,
the “removal of the action is proper on the basis of the amount in controversy . . .if the district
court finds, by a preponderance of the evidence, that the amount in controversy” exceeds
$75,000. 28 U.S.C. § 1446(c)(2)(A)(ii)-(B).
4

now. As to the value of any prospective eviction, the Court finds that here has been no showing
as to what Plaintiff will do with the property or whether it will re-lease the property to another
party at a rent that would exceed $75,000. Defendant has failed to carry his burden of showing
that the amount in controversy exceeds $75,000.6
Three, this Court does not have federal question jurisdiction. The Complaint is a
summary action for non-payment of rent. Plaintiff’s Complaint does not allege any federal
claim. See Franchise Tax Bd. of Cal. v. Contr. Laborers Vacation Tr. for S. Ca., 463 U.S. 1, 10
(1983) (“[A] defendant may not remove a case to federal court unless the plaintiff's complaint
establishes that the case arises under federal law.”) The Complaint involves only a landlordtenant dispute which is purely a state law matter. Any federal claims Defendant purports to have
are not before this Court. Accordingly, federal question jurisdiction is not present here.
CONCLUSION
In sum, Defendant has failed to establish any of the requirements for diversity removal
jurisdiction. This is a straightforward state law tenancy matter that belongs in state court. For
the reasons set forth above, it is respectfully recommended that Plaintiff’s motion to remand be
granted.
Counsel for Plaintiff is directed to serve a copy of this Report and Recommendation upon
Defendant within 5 days of its entry.

s/Mark Falk
MARK FALK
United States Magistrate Judge

Dated: January 17, 2014

6

Defendant’s failure to comply with 28 U.S.C. § 1446 by neglecting to attach the state
court pleadings is a procedural defect and curable, and does not affect the right to remove. See
Thomason Auto Grou[ , LLC v. China America Co-op. Automotive, Inc., No. 08-3365, 2009
WL512195, *3 (D.N.J. Feb. 27, 2009)
5