TEANECK TAXI AND LIMOUSINE SERVICE INC. et al v AURA TRANSPORTATION, et al
REPORT AND RECOMMENDATIONS re 4 MOTION to Remand filed by KISMET INTERNATIONAL INC., TEANECK TAXI AND LIMOUSINE SERVICE INC., TEANECK CAB SERVICE INC Objections, if any, to R&R due by 5/1/2015. Signed by Magistrate Judge Steven C. Mannion on 4/17/2015. (nr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
TEANECK TAXI, et al,
Civil Action No.
AURA TRANPORTATION INC, et
ON PLAINTIFF’S MOTION TO
REMAND [D.E. 4]
REPORT AND RECOMMENDATION
STEVEN C. MANNION, UNITED STATES MAGISTRATE JUDGE
Before the Court is plaintiffs Teaneck Taxi and Limousine
Motion to Remand this case to the Superior Court of New Jersey,
Honorable Susan D. Wigenton, United States District Judge, has
referred the instant motion to the undersigned for report and
submissions without oral arguments pursuant to Federal Rule of
Civil Procedure 78, and for the reasons set forth herein, it is
D/B/A Teaneck Taxi Service.
respectfully recommended that Plaintiffs’ Motion to Remand be
verified Complaint in the Superior Court of New Jersey, Chancery
Division against defendants Aura Transportation, Inc., Mehmet E.
Tataroglu, Dursun Kurban, NJ Royal Car & Limo Service LLC, Mr.
Taxi LLC, Tati LLC, Tataroglu International LLC, and Adam Massa
infringement, dilution, deception,
relations, and unfair competition by Defendants.
Id. at ¶¶55-
Plaintiffs’ allege they have owned and operated a limousine
and taxi service in Teaneck, New Jersey and the surrounding area
since July 1998. (D.E. 1-1 Pl.’s Compl. ¶18). During the course
of their business, Plaintiffs used the trademark and trade name
“TEANECK TAXI” since July 27, 1998, which has been registered
with Bergen County since July 15, 1998 and September 18, 2003.
Plaintiff also used the trademark and trade name “TEANECK
LIMO” since March 1, 1997, which has been registered with the
October 15, 2013.
Id. at ¶¶ 19-20.
have used the name “TEANECK CAB” since December 20, 2002.
at ¶ 21.
As a basis for its’ Complaint, Plaintiffs further
allege that irrespective of Plaintiffs’ use and registration of
the aforementioned trademarks and trade names, defendants, some
of whom are former employees of Plaintiffs, opened taxi and
limousine services and established websites under various names,
including www.teanecktaxis.com and www.teanecklimo.com.
question asserting this action originated from Plaintiffs’ trade
name filing with the USPTO. (D.E. 1, Notice of Removal, ¶¶ 4-5).
The Notice of Removal was silent as to whether all defendants
consented to the removal of the action to the District Court.
On October 8, 2014, Plaintiffs moved to remand this action
to Superior Court of New Jersey, Chancery Division, arguing that
the district court lacks subject matter jurisdiction. (D.E. 4-3,
Pl’s Mot. To Remand).
On October 16, 2014, Defendant opposed
On October 24, 2014, Plaintiffs
replied to Defendant’s opposition.
Pursuant to 28 U.S.C. § 1441(a), “any civil action brought
in a State court of which the district courts of the United
defendant or the defendants, to the district court of the United
28 U.S.C. § 1441(a); see also Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63, 107 S. Ct. 152, 95 L. Ed 2d 55 (1987).
Since federal courts are of limited jurisdiction, actions can
only be removed to federal court pursuant to § 1441(a) if: the
action arises under the Constitution, laws or treaties of the
United States, providing a federal question; or if the matter in
controversy exceeds $75,000 and consists of a dispute between
citizenship. See 28 U.S.C. §§ 1331, 1332.
On a motion to remand, the party asserting jurisdiction
(the removing party) bears the burden of establishing that the
action is properly before the court.
Samuel-Bassett v. KIA
Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).
removal statutes should be construed strictly against removal,
with all doubts resolved in favor of remand.
Id.; see also
Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
federal claims alleged in its’ complaint and absent diversity of
citizenship between the parties in this action, this Court lacks
Plaintiffs also assert remand is appropriate because Defendant’s
removal was procedurally deficient in that not all defendants
joined in the removal.
Id. at 4.
Lastly, Plaintiffs request
attorneys’ fees for Defendant’s improper removal. Id. at 11-12.
federally registered trademarks establishes a federal question
because resolution of this matter will require exploring the
validity of the aforementioned trademark through counterclaims
(D.E. 6, Def.’s Opp’n Br. at 1).
This Court finds that the federal trademark registration
alone does not establish a claim arising under federal question
where Plaintiffs specifically pled common law causes of action
and are not seeking relief under the Lanham Act, 15 U.S.C. 1051
Unless a trademark claim arising under the Lanham Act
is present on the face of the complaint and absent diversity of
citizenship between the parties, a district court does not have
original subject matter jurisdiction over a matter. Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed.
318 (1987). Thus, because the plaintiff is the “master of the
claim” the “well-pleaded complaint” rule permits the plaintiff
to avoid federal jurisdiction by exclusive reliance on state
However, an exception to the well-pleaded complaint
disputed question of Federal law is a necessary element of one
of the well pleaded state claims or (2) when it appears that
plaintiff's claim is ‘really’ one of Federal law. This narrow
complete preemption doctrine.” Gateway 2000 v. Cyrix Corp., 942
F. Supp. 985, 990 (D.N.J. 1996)(internal citations omitted).
In Gateway 2000 v. Cyrix Corp., the Court held that the
federal registration of a mark does not automatically convert
any claim brought in relation to that mark into a federal claim.
942 F. Supp. at 993.
That plaintiff filed a motion to remand
subsequent to the defendant’s removal of plaintiff’s action for
violations of state statutory and common law claims including
dilution, trademark infringement and unfair competition.
The defendant argued that where the complaint alleges no
federal claims, the presence of a federally registered trademark
defeats a state law claim allowing for removal of the case based
on federal question jurisdiction.
Id. at 988.
The Court stated
According to the [defendant’s] argument, any
trademark that is federally registered or used
in interstate commerce would defeat a state law
claim and require removal to the Federal Court.
Indeed, adoption of [defendant’s] argument would
greatly frustrate the ability of state courts to
address acts such as those allegedly committed
Id. at 992.
Similarly here, Plaintiffs also did not allege any federal
question established by Plaintiffs’ federally registered trade
name, “TEANECK LIMO,” being the impetus of Plaintiffs’ complaint
and being inadvertently intertwined with Plaintiffs’ claim for
Plaintiffs of choosing
between federal and state claims when filing a cause of action
involving any federally registered trade name. See Caterpillar,
commencement of its action, Plaintiff was entitled to choose
common law trademark infringement, state unfair competition law,
and/or federal trademark infringement law; Plaintiff chose to
seek relief under common law trade name infringement and state
unfair competition laws. (D.E. 1-1, Compl. at ¶¶ 55-228); See
also La Chemiste LaCoste v. Alligator Co., 506 F.2d 339, 345-46
(3rd Cir. 1974). Therefore, although Plaintiffs reference its
federal trade name “TEANECK LIMO” in its complaint, in addition
to its non-federally registered trade names, Plaintiff chose to
Next, the Court finds subject matter jurisdiction cannot be
plaintiff’s complaint establishes that the case arises under a
federal law. See Weinberg v. Sprint Corp., 165 F.R.D. 431, 436
(D.N.J. 1996); Trent Realty Assoc. v. First Fed. Sav. & Loan
Ass’n., 657 F.2d 29, 34-35 (3d Cir. 1981); Merrell Dow Pharm.
Inc. v. Thompson, 478 U.S. 804, 808, 106 S. Ct. 3229, 92 L. Ed.
claiming on state law only, or on state and federal law. The
defendant cannot make that choice for him by seeking to draw an
petition.” 67 Goffle Rd., Inc. v. Playboy Hotel Casino, 527 F.
Supp. 566, 568-69 (D.N.J. 1981). Here, Plaintiffs chose to bring
registered trademark, thus, anticipating a federal defense in
warrant federal subject matter jurisdiction.
The Court further finds Defendant’s Notice of Removal was
deficient and did not establish whether all defendants consented
to the removal.
28 U.S.C. § 1446(b)(2)(A) provides that “[w]hen
a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in
Circuit refers to as the “unanimity rule.”
Lewis v. Rego, 757
F.2d 66, 68 (3d Cir. 1985); Balazik v. County of Dauphin, 44
F.3d 209, 213 (3d Cir. 1995).
The rule of unanimity may be
disregarded when (1) a non-joining defendant is unknown or is a
served at the time the notice of removal is filed. Balazik, 44
F.3d at 213 n.4.
International LLC’s Removal Notice was silent as to the consent
of the other Defendants in the action.
(D.E. 1, Notice of
Removal). Moreover, in their opposition to Plaintiffs’ Motion
exceptions to the unanimity rule. Thus, the removing Defendant’s
failure to obtain the consent of non-removing Defendants is a
procedural defect in the removal petition.
attorneys’ fees be denied.
Pursuant to 28 U.S.C. § 1447, a
awarding attorneys’ fees incurred “as a result of [a] removal”
See also Mints v. Educ. Testing Serv., 99 F.3d
1253, 1260 (3d Cir. 1996). However, when determining whether to
award attorneys’ fees in removal cases, the Supreme Court has
established that "the standard for awarding fees should turn on
the reasonableness of the removal. Absent unusual circumstances,
courts may award attorney's fees only where the removing party
Conversely, when an objectively reasonable basis exists, fees
should be denied." Martin v. Franklin Capital Corp., 546 U.S.
132, 141, 126 S.Ct. 704, 163 L. Ed. 2d 547 (2005).
Court does not find Defendant lacked an “objectively reasonable
basis for seeking removal." See Martin, 546 U.S. at 141; see
also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98
S. Ct. 694, 54 L. Ed. 2d 648 (awarding fees simply because the
airtight claims, for seldom can a party be sure of ultimate
federal law, the lack of diversity, and no evidence of consent
from all Defendants, or an applicable exception to the unanimity
rule, this Court concludes it lacks subject matter jurisdiction
over this matter.
Therefore, pursuant to 28 U.S.C. § 1441, it
is the recommendation of the undersigned that Plaintiff’s Motion
to Remand, (D.E. 4),
and Plaintiffs’ request for
attorneys’ fees and costs be DENIED.
The parties have fourteen days to file and serve objections
to this Report and Recommendation pursuant to 28 U.S.C. § 636
and Local Civil Rule 72.1(c)(2).
4/17/2015 1:10:02 PM
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