NIBLACK v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 23 Report and Recommendations,& denying 16 Remand to State Court filed by STANLEY L. NIBLACK. Signed by Judge Jose L. Linares on 8/14/14. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STANLEY L. NIBLACK,

Civil Action No.: 14-01831 (JLL)(JAD)

Plaintiff,
v.

ORDER

UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY, et al.,
Defendants.

THIS MATTER comes before the Court by way of Stanley
L. Niblack (“Plaintiff’)’s

motion to remand the present matter to state court pursuant
to 28 U.S.C.

§ 1447. This Court

referred Plaintiff’s motion to the Honorable Joseph A. Dickson,
United States Magistrate Judge,
pursuant to 28 U.S.C.

§ 636 (b)(l)(B).

Magistrate Judge Dickson filed a Report and

Recommendation in connection with said application on
July 23, 2014.

In his Report and

Recommendation, Magistrate Judge Dickson recommended
that Plaintiffs motion to remand be
denied.

For the reasons set forth below this Court adopts Magistrate
Judge Dickson’s findings

as its own findings of fact and conclusions of law.
By way of background, Plaintiff filed his initial Complaint in New Jersey Superior
Court
in Essex County on September 9, 2013, wherein he asserted
violations of his civil
incarcerated within the New Jersey Department of Correc
tions.
CMJECF No. 1 Ex. A).

rights while

(See Complaint at

¶J 3-4,

In particular, Plaintiffs Complaint asserted constitutional
violations by

Defendants resulting from his inability to receive dental care.
21, 2014, Defendants removed the present matter to this Court.
1

(Complaint at

¶ 5). On March

(CMIECF No. 1).

Plaintiff filed

his motion to remand on May 23, 2014.

(CM/ECF No. 16).

On July 23, 2014, Magistrate Judge

Dickson filed a Report and Recommendation in which he recommended
a denial of Plaintiff’s
motion to remand.

(CM/ECF No. 23).

Plaintiff now objects to Magistrate Judge Dickson’s

Report and Recommendation on the basis that Magistrate Judge Dickso
n’s finding that Plaintiff
exceeded the thirty day time period to file a motion to remand failed to
delve into Plaintiff’s basis
for filing the motion to remand outside of the thirty day time period
.
CM/ECF No. 26).

(See Pl.’s Objection 1,

In particular, Plaintiff argues that Magistrate Judge Dickson “g[ave
] no

complete statement or opinion in addressing his analysis of plaintiff’s
alleged untimeliness in
seeking to remand this matter.”

(See Pl.’s Objection 1).

It is well established that when a magistrate judge addresses motions
that are considered
“dispositive,” such as a motion to remand, a magistrate judge will
submit a Report and
Recommendation to the district court.
72.1 (a)(2).

28 U.S.C.

§ 636(b)(1)(A); Fed. R. civ. P. 72; L. Civ. R.

The district court may then “accept, reject or modify, in whole or in part,

or recommendations made by the magistrate.

The judge may also receive further evidence or

recommit the matter to the magistrate with instructions.”
Civ. R. 72.1(c)(2).

the findings

28 u.s.c.

§ 636(b)(l)(c); see also L.

Unlike an Opinion and Order issued by a magistrate judge, a Report
and

Recommendation does not have the force of law unless and until the distric
t court enters an order
accepting or rejecting it.

See United Steelworkers ofAm. v. N.J Zinc Co., Inc., 828 F.2d 1001,

1005 (3d Cir. 1987).
The standard of review of a magistrate judge’s determination depend
s upon whether the
motion is dispositive or non-dispositive.

For dispositive motions, the district court must make a

de novo determination of those portions of the magistrate judge’
s Report to which a litigant has
2

filed an objection.

28 U.S.C.

Under 28 U.S.C

§ 636(b)(l) (c); Fed. R. civ. P. 72(b); L. Civ. R. 72.l(c)(2).

§ 1441 and 1446, a party may remove a civil action from state court to

federal court if the district court has original jurisdiction over the action
and the party removing
the action does so within thirty days after receipt of the initial pleading.

Removal statutes “are

to be strictly construed against removal and all doubts should be resolve
d in favor of remand.”
Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010
(3d Cir. 1987).

As the

party invoking federal subject matter jurisdiction, a removing party bears
the burden of proving
that jurisdiction exists.

Samuel-Basset v. KIA Motors Am., Inc.., 357 F.3d 392, 396 (3d Cir.

2004).
After a careful reading of the Report and Recommendation filed by Magis
trate Judge
Dickson, this Court now adopts such findings of fact and conclusions of
law as its own for the
following reasons.

Plaintiffs Complaint raises conditions of confinement claims, stemm
ing

from his inability to receive dental treatment and dentures, in
which he asserts federal
constitutional violations by Defendants.

(See generally Complaint).

Accordingly, Magistrate

Judge Dickson determined that this Court has federal subject matter
jurisdiction over Plaintiffs
claims pursuant to 28 U.S.C.

§ 1331, and Plaintiff has not objected to this finding.

Recommendation 3; Pl.’s Objection 1).

(Report and

With regard to Plaintiffs objection to the Report and

Recommendation on the basis that Magistrate Judge Dickson did not
sufficiently analyze the
timeliness of Plaintiffs motion to remand, this Court finds that Plainti
ffs argument is without
merit.’

In particular, Plaintiff argues that Magistrate Judge Dickson erred becaus
e he failed to

Plaintiff’s objection to the Report and Recommendation conced
es to Magistrate Judge Dickson’s finding inasmuch
as Plaintiff states that, “[fjrom what plaintiff has gleaned from [Magis
trate Judge) Dickson[’sj decision is essentially
that I was out of time due to the thirty days of removal for a remand
based on procedural defects. In which your

3

delve into or even mention Plaintiff’s basis for filing the motion
to remand outside the thirty day
time frame.

(Pl.’s Objection 1).

However, Magistrate Judge Dickson addressed the timeliness

of Plaintiff’s motion to remand in a footnote of his Report and
Recommendation.
and Recommendation 2).
pursuant to 28 U.S.C.
at any time.

(See Report

Specifically, Magistrate Judge Dickson correctly provided that

§ 1447(c) motions to remand based on jurisdictional defects may be raised

(Report and Recommendation 2 n.l); see also 28 U.S.C.

§ 1447(c). However,

motions to remand based on any other defects must be made within
thirty days of removal.

See

Uddin v. Sears, Roebuck & Co., CIV.A. 13-6504 JLL, 2014 WL
316988 at *3 (D.N.J. Jan. 27,
2014) (citing 28 U.S.C.

§ 1447(c)) (“[A] plaintiff’s ‘motion to remand the case on the basis of any

defect other than lack of subject matter jurisdiction must be made
within 30 days after the filing
of the notice of removal under section 1446(a)”); (Report and Recom
mendation 2 n.1); see also
28 U.S.C.

§ 1447(c). Plaintiff’s motion to remand was filed on May 23, 2014, well after thirty

days of Defendants’ notice of removal which was filed on March
21, 2013.
16).

At that time, Plaintiff raised procedural defects in Defendants’ notice

for remand.

(CM/ECF No. 16).

(CM/ECF Nos. 1;

of removal as the basis

In his Report and Recommendation Magistrate Judge Dickson

did not err in declining to discuss the reasons why Plaintiff’s
motion may have been untimely.
See Air-Shields, Inc. v. Fullam, 891 F.2d 63, 66 (3d Cir. 1989)
(internal citation and quotation
marks omitted) (holding that where the district court remanded
a case for procedural defects after
the thirty day limit imposed by 18 U.S.C.
statutorily defined power”).

§ 1447(c) had expired, “the district court exceeded [its]

Thus, Plaintiff’s motion to remand was properly denied
as time

barred because it is based on non-jurisdictional defects and
the motion was filed well after the
honor is absolutely correct pursuant to 28 U.S.C.

§ 1447(c)”. (Pl.’s Objection 1).
4

thirty day time limit.
2

(CM!ECF Nos. 1; 16).

For the aforementioned reasons, the Court finds

that Magistrate Judge Dickson’s determinations were not in error.
Accordingly,
IT IS on this

th
11

day of August, 2014,

ORDERED that the Report and Recommendation of Magistrate Judge Dickson,
filed on
July 23, 2014 (CM/ECF No. 23) is hereby ADOPTED as the findings of fact and
conclusions of
law of this Court; and it is further
ORDERED that Plaintiff’s motion to remand (CM/ECF No. 16) is denied.

Jinare
United States District Judge

2

Additionally, it is clear from reviewing the docket that Plaintiff had access
to the docket during the thirty days
following the filing of Defendants’ notice of removal, during which time
Plaintiff made a number of filings. (See
CM/ECF Nos. 3, 4, 6, 7).

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