GELBER v. KIRSCH et al

Filing 24

SUA SPONTE RECONSIDERATION OF REPORT AND RECOMMENDATIONS re 9 MOTION to Remand filed by STEVEN V. GELBER Objections, if any, to R&R due by 4/13/2015. Signed by Magistrate Judge Joseph A. Dickson on 3/30/2015. (nr, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
·--sTEVEN-v:-"GiiiiE~---------------------------------1

Civil Action No. 2:14-cv-6768 (JLL) (JAD
Plaintiff,
SUA SPONTE RECONSIDERATION 01
REPORT AND RECOMMENDATION

v.
LAURA KIRSCH, KIRSCH & KIRSCH
LLP. RICHARD E. SALKIN, ESQ., AND
JOHN DOES 1-10 (being persons and
entities whose true identities are
unknown),

Defendants.
JOSEPH A. DICKSON. U.S.M.J.
This matter comes before the Court's sua sponte reconsideration 1 of the undersigne 's
December 17, 2014 Report and Recommendation, (ECF No. 8), in connection with PlaintiffStei en
V. Gelber's ("Plaintiff') motion to remand this action to the Superior Court of the State ofN w
Jersey, Passaic Vicinage, pursuant to 28 U.S.C. § 1447 (the "Motion to Remand").

1

UJ t>n

Magistrate Judge has authority to vacate his initial recommendation and issue a revised versic n
in response to objections filed by the party. See Winston & Strawn LLP v. F.DJ.C., 841 F.
Supp. 2d 225, 229 (D.D.C. 2012) (" ... any potential infirmity in the practice could be cured by
the Court's return of the matter back to Magistrate Judge ... for resubmission of the Revised
Report and Recommendation pursuant to Fed.R.Civ.P. 72(b)(3) as an initial Report and
Recommendation issued upon that re-referral-an exercise of form over substance that would e
both unnecessary and contrary to the plaintiffs request for expedited disposition. The Court wi
proceed without requiring such a redundant step."); see also Chase Manhattan Bank v. Iridium
Africa Corp., 294 F. Supp. 2d 634, 637 (D. Del. 2003)(concluding that it was within the
Magistrate Judge's discretion to reconsider her own rulings).

1

consideration of the parties' submissions, and for the reasons stated below, it 1s

e

recommendation of this Court that Plaintiff's motion to remand be DENIED.

I.

REMOVAL FROM STATE COURT.

The December 17, 2014 Report and Recommendation, (ECF No. 8), contains a detai d
explanation of the factual background of this case, and the Court incorporates the fac
background as set out in the December 17, 2014 Report and Recommendation:
Plaintiff, Steven V. Gelber filed the instant lawsuit in New Jersey Superior Court,
Law Division, Bergen County, seeking compensatory and punitive damages, as
well as costs and attorney's fees stemming from a lawsuit brought by Defendants,
Laura Kirsch, Esq., Kirsch & Kirsch LLP, and Richard E. Salkin ("Defendants")
against the Plaintiff, which Plaintiff alleges "was calculated and designed to
intimidate Plaintiff ... and chill his constitutionally protected right to speak out on
matters of public concern and to petition the government and make known his
grievances." (Complaint, ECF No. 1-1). On October 21, 2014 the action was
transferred from the Superior Court Law Division, Bergen County, to the Superior
Law Division, Passaic County because Defendant Salkin's daughter is an employee
working at the Bergen County Courthouse, and a companion case, Salkin v. Gelber,
Docket No. BER-L-5480-12 has already been transferred to Passaic County.
(October 21, 2014 Order, ECF No. 1-3).
On October 29, 2014 Defendants removed the matter to this Court, asserting
that removal is warranted under 28 U.S.C. § 1441(a) and 28 U.S.C. §1441(b)
because Plaintiff's allegations arise under the "laws of the United States," over

2

1

which the Court has original jurisdiction pursuant to 28 U.S.C. § 1331. (Notice of
Removal, ECF No. 1). Specifically, Defendants point to the First Count of the
Complaint that purports to allege claims under the First Amendment of the United
States Constitution, and the Second Count of the Complaint that purports to allege
claims under Section 1 of the Civil Rights Act of 1871, 42 U.S.C. Section 1983.

(Id.)
On or about November 18, 2014, Plaintiff filed a motion to remand this
action to the Superior Court of the State of New Jersey, Passaic Vicinage, pursuant
to 28 U.S.C. § 1447. (Motion to Remand, ECF No. 3). In Plaintiffs November 18,
2014 letter brief in support of his motion to remand, Plaintiff contends that removal
was improper and that this matter must instead be remanded to State Court. (PL
Br., ECF No. 3-3). Specifically, Plaintiff argues that there was a defect in the
removal process because, "Defendants failed to file their notice of removal within
30 days ofreceipt of the Summons and Complaint in conformance with 28 U.S.C.
§ 1446." (Id.) Plaintiff contends that the 30 day time period in which to file a
notice of removal commenced on September 22, 2014, when Defendants Laura
Kirsch, Esq. and Kirsch & Kirsch LLP were provided with the Summons and
Complaint. (Id.) As such, Plaintiff reasons that Defendants' notice of removal was
untimely because it was filed more than 30 days later, on October 29, 2014. (Id.)
In addition to its request that the Court remand the action, the Plaintiff also requests
that the Court award attorneys' fees incurred as a result of the allegedly improper
removal. (Id.)

3

On or about December 01, 2014, Defendants filed an opposition to
Plaintifrs motion to remand. (Defs'. Opp'n., ECF No. 6). In their opposition,
Defendants contend that their removal petition was timely filed because the 30days in which to remove an action begins to run when the Defendants are formally
served with the summons and complaint. (Id.) Defendants cite the United States
Supreme Court decision in Murohy Bros, Inc., v. Michetti Pipe Stringing, Inc., 526
U.S. 344 (1999) to support their position that ''the time for removal begins to run
when the state court establishes jurisdiction over the defendant." Accordingly,
based on this reasoning, Defendants argue the 30-day removal period commenced
when Plaintiff effected service on Mr. Salkin on September 30, 2014, and on Laura
Kirsch and Kirsch & Kirsch LLP on October 1, 2014. (Id.) Unlike Plaintiff,
Defendants contend that the 30-day removal period did not begin to run on
September, 22, 2014, when Plaintiff sent a copy of the complaint and summons to
Laura Kirsch by regular, mail, email, and fax because Laura Kirsch did not accept
service at that time. (Id.) As a result, Defendants maintain that the removal petition
was timely filed on October 29, 2014 because it was within 30 days from the date
on which the Defendants were served. (Id.) In addition to maintaining that removal
was appropriate, Defendants urge the Court not to award attorneys' fees to Plaintiff
because they have a good faith argument for removal that is supported by case law
and the clear language of 28 U.S.C. 1446.

ilil.)

On or about December 08, 2014, Plaintiff filed a reply brief in further
support of its motion to remand. (Pl. Rep. Br., ECF No. 7). Plaintiff contends that
Defendants' interpretation of Murohy Bros. is inaccurate. (Id. at 4).

4

Rather,

Plaintiff asserts, "[T]here is no question that Murphy Bros. stands solidly for the
proposition that the removal period begins with receipt of the Summons and
Complaint by the defendants or their attorney and not any formal and technical
adherence to whether proper service has been effectuated." (Mb at 5). As such,
Plaintiff maintains that in the instant matter, the time for seeking removal began to
run when the Plaintiffs Complaint was sent to Laura Kirsch on September 22,
2014, and not when she and her firm were formally served with the Complaint and
Summons on October 1, 2014. (Id. at 6). Therefore, Plaintiff contends that removal
was untimely and that Defendants should bear responsibility for Plaintiffs costs
and fees incurred as a result of this remand motion. (Id. at 7).

II.

OBJECTIONS TO REPORT AND RECOMMENDATION

The undersigned's December 17, 2014 Report and Recommendation, (ECF No. 8),
concluded in pertinent part:
... that in the instant matter, the 30-days in which to remove commenced when
Plaintiff effected service on Mr. Salkin on September 30, 2014, and on Kirsch and
Kirsch & Kirsch LLP on October 1, 2014. Consequently, Defendants notice for
removal, filed on October 29, 2014 was timely. Therefore, Plaintiffs motion to
remand and for attorney's fees and costs should be denied."
December 17, 2014 Report and Recommendation, (ECF No. 8 at 5-6).
On December 31, 2014, Plaintiff set forth his objections to the December 17, 2014
Report and Recommendation. (ECF No. 9-1 ). Plaintiff argues, " .. .it is clear that the facts
in the instant case are decidedly different than the faxed 'courtesy copy' of the pleading
the United States Supreme Court dealt with in Murphy Bros. and the "courtesy copy" of
the Complaint the Court considered in Oxford Realty Group LLC v. Axis Reinsurance Co.,

5

Civ. No 08-6303 (D.N.J. April 9, 2009) a case relied upon the Ruling and Recommendation
[sic]." (Id. at 10). Specifically, Plaintiff asserts that the September 22, 2014 letter was
valid service under New Jersey Court Rule 4:4-4(c). (Id. at 7). As such, Plaintiff contends
that remand is necessary because "the removal period began in the instant matter with
receipt by Kirsch & Kirsch LLP of the Summons and Complaint through service on
September 22, 2014 of the Summons and Complaint pursuant to New Jersey Court Rule
4:4-4(c)."

ffih at 11).

On January 16, 2015, Defendants Laura Kirsch and Kirsch & Kirsch filed a letter
brief in opposition to Plaintiff's objections. (ECF No. 14). Defendants contend that
Defendant Salkin was not served until September 30, 2014, and that under the so called
"later-served defendant rule," the removal petition on behalf of all defendants was timely
filed on October 29, 2014. (Id. at 3). Defendants emphasize that "there is no mention of
Mr. Salkin" in the September 22, 2014 letter or the summons.

(Id. at 4)

Instead,

Defendants point out that the letter was addressed only to Laura Kirsch and the Summons
was addressed only to Laura Kirsch and Kirsch & Kirsch LLP. @). Defendants also
highlight the fact that the September 22, 2014 letter "only asks the attorney to accept
service on behalf of herself and her law firm ... " (Id. at 5). Therefore, Defendants contend,
that Mr. Salkin's petition for removal was timely and the other Defendants properly joined
in that filing. (Id. at 6).
Defendants also argue that Plaintiff's application of New Jersey Court Rule 4:44( c), results in an injustice because it ultimately forces defendants to respond to the
complaint in fear of the 30-day removal clock running, and then, as a result, losing their
opportunity to remove the action to Federal Court. (Id. at 2). Defendants thus urge the

6

Court that Plaintiffs position is "contrary to the overwhelming weight of authority and
would allow an ingenious plaintiff to deprive a defendant of any opportunity to remove an
action to federal court." (Id.).
On January 30, 2014, Plaintiff filed a briefinreplyto Defendant's letter brief. (ECF
No. 18). Plaintiffs reply asserts that the 30 day right to removal was triggered in this
instance by the receipt of the Summons and Complaint by Kirsch & Kirsch on September
22, 2014, and that Defendants' position "ignore[ s] the holdings and rationale of Granovsky,
Macdonald and In re Pharm. Indus. Average Wholesale Price Litig.. " (Id. at 7).
In addition, Plaintiff also contends that Defendants Laura Kirsch and Kirsch &
Kirsch were implicitly authorized to accept service on behalf of Defendant Salkin. (Id. at
8). Plaintiff reasons, therefore, that the removal period for all Defendants commenced with
receipt by Kirsch & Kirsch of the Summons and Complaint pursuant to New Jersey Court
Rule 4:4-4(c), and that remand is proper since the removal petition was untimely. (Id.)
On February 19, 2015 a settlement was reached as to Defendant Salkin only. This,
however, has no impact on the Court's analysis below. (February 25, 2015 Letter, ECF
No. 21).

III.

LEGAL STANDARD - REMOVAL AND REMAND.

Title 28, § 1441(a) of the United States Code permits a defendant to remove a civil act n
in state court to a federal court where the action could have been filed originally, that is, where

e

federal court has subject matter jurisdiction over the action. Caterpillar Inc. v. Williams, 482
386, 392 (1987). Section 1446 outlines the procedures for removal, and Section 1447 outlines
procedures following removal. 28 U.S.C. §§ 1446, 1447. Defects in removal may be proced
or jurisdictional. Under 28 U.S.C. § 1446(b)(l), a defendant has thirty days to remove a case,
7

e

this time limit "is a procedural provision, not a jurisdictional one." Farina v. Nokia Inc., 625 F. d
97, 114 (3d Cir. 2010) (citing Ariel Land Owners, Inc. v. Dring, 351F.3d611, 614 (3d Cir. 2003
In tum, a plaintiffs "motion to remand the case on the basis of any defect other than lack of subj

matter jurisdiction must be made within 30 days after the filing of the notice of removal un
section 1446(a)." 28 U.S.C. § 1447(c). Jurisdictional defects, however, maybe raised at any ti
Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996).
The party seeking removal bears the burden of demonstrating that removal is prop r.
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); see also Brown v. Jevic, 575 F. d
322, 326 (3d Cir. 2009). Removal statutes "are to be strictly construed against removal and 11
doubts should be resolved in favor ofremand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 1 1
(3d Cir. 1990) (citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010

d

Cir.1987)).

IV.

ANALYSIS.

A. Service under R. 4:4-4(c):
In determining whether a Defendant was properly served before removal, a federal co

must apply the law of the state under which the service was made. Giovanni v. Mentor Worldwi e
LLC, No. CIV. 12-4435 (JBS) (JS), 2012 WL 5944181, at *3 (D.N.J. Nov. 21, 2012). Plain ff
alleges that Defendants were served with Plaintiffs Complaint and Summons by mail pursuan o
New Jersey Court R. 4:4-4(c), which provides:
Optional Mailed Service. Where personal service is required to be made pursuant
to paragraph (a) of this rule, service, in lieu of personal service, may be made by
registered, certified or ordinary mail, provided, however, that such service shall be
effective for obtaining in personam jurisdiction only if the defendant answers the
complaint or otherwise appears in response thereto, and provided further that
default shall not be entered against a defendant who fails to answer or appear in
8

response thereto. This prohibition against entry of default shall not apply to mailed
service authorized by any other provision of these rules. If defendant does not
answer or appear within 60 days following mailed service, service shall be made as
is otherwise prescribed by this rule, and the time prescribed by R. 4:4-1 for issuance
of the summons shall then begin to run anew.
New Jersey Court R. 4:4-4(c).
"State and federal courts have recognized the R. 4:4-4(c) is an authorized, permissible form
service under New Jersey law and effective for obtaining personal jurisdiction over a defend

Company, 2006 U.S. Dist. LEXIS 56456, *11-12, 2006 WL 2224416 (D.N.J. August 1, 20
Moreover, case law in this District also suggests that optional mail service under this rul
sufficient to trigger a defendant's thirty-day deadline to remove under 28 U.S.C. § 1446
MacDonald v. Township ofWall Police Department, No. 11-1598, 2011 U.S. Dist. LEXIS 479 5,
2011WL1740410 (D.N.J. May 4, 2011); Granovsky, 631 F.Supp.2d at 562; In re Pharm. In

s.

Average Wholesale Price Litig., 431 F.Supp.2d 109, 121 (D.Mass.2006).
Although Plaintiff did not mention R: 4:4-4( c) in his initial briefings, (ECF Nos. 3, 7),
did Plaintiff's September 22, 2014 letterreferto R. 4:4-4(c), Plaintiff now for the first time sub
arguments based on the above law regarding R. 4:4-4(c). (ECF No. 9-1 at 7). Specifically, Plain
argues service was properly effectuated on September 22, 2014, pursuant to R. 4:4-4(c),
therefore Defendants' removal was untimely. (Id.). Accordingly, the Court must dete
whether the Defendants were properly served pursuant to R. 4:4-4(c).
As mentioned above, under the Rule, mailed "service shall be effective for obtainin
personam jurisdiction only if the defendant answers the complaint or otherwise appears in respo se
thereto ... within 60 days following mailed service." R. 4:4-4(c). As the Defendants have ot

9

answered the Complaint, the Court need only determine whether Defendants have otherwi e
"appeared" in response to the mailed service within 60 days of such service.
Upon review of the case law, this Court concludes that the filing of a notice of removal s
sufficient to constitute an appearance under R 4:4-4(c). See Macdonald v. Two. of Wall Poli e
Dep't, No. CIV. 11-1598, 2011WL1740410, at *1 (D.N.J. May 4, 2011) (finding that filing o a
notice of removal evinces defendant actually has notice of the suit and thus constitutes an ansV1 er
or an appearance for purposes of Rule 4:4--4(c)); see also Giovanni v. Mentor Worldwide. LL~'
No. CIV. 12-4435 (JBS) (JS), 2012 WL 5944181, at *4 (D.N.J. Nov. 21, 2012) ("This is suffici€ llt
to constitute an appearance under R. 4:4--4(c) because Defendant filed its notice of removal on t e
state court docket and acknowledged notice and receipt of Plaintiffs complaint and summons ).
Accordingly, this Court finds that Defendants Laura Kirsch and Kirsch & Kirsch were propel y
served by regular mail on September 22, 2014 because their removal petition is equivalent to

ln

appearance, and was filed on October 29, 2014, within 60 days of receiving the Summons a d
Complaint by mail, as required by R. 4:4-4(c).
Based on the Court's above determination that Defendants Laura Kirsch and Kirsch

&

Kirsch were effectively served on September 22, 2014, it would appear that removal was untimc y
under 28 U.S.C. §1446(b) because Defendants did not remove the action until October 29, 20 4,
which exceeds the 30 day period provided under § 1446. Consequently, Plaintiff argues that t [s
procedural defect in Defendants' removal requires the Court to remand the action back to sti ~e
court. (ECF No. 9-1 at 11). For the reasons that follow, however, this Court finds that remm al
was in fact timely.

10

B. Service on Defendant Salkin:
Although the Court agrees with Plaintiff that Defendants Laura Kirsch and Kirsch & Kir
were properly served on September 22, 2014 by regular mail, the Court does not agree
Plaintiff's contention that Defendant Salkin was also effectively served by the September 22, 2
mailing of the Summons and Complaint to Defendants Laura Kirsch and Kirsch & Kirsch. (R
to Defendants Opposition, ECF No. 18 at 8). Specifically, Plaintiff contends that "Laura Kir
and Kirsch & Kirsch were, by law, impliedly authorized to accept service on behalf of Mr. Gel
[sic]."

ilil) As such, Plaintiff asserts that the removal period began on September 22, 2014

all parties, and therefore, the Court must remand the instant action back to state court because

e

parties failed to file the removal petition within 30 days of September 22, 2014. (Id.)
The Court, however, upon consideration of the facts of this case, concludes that nei
Laura Kirsch nor Kirsch & Kirsch were authorized to accept service on behalf of Defend
Salkin. 2 Although a "court can infer an attorney's implied authority from the particular conduc
question and from the particular circumstances in the case," none of the facts of this case leads
Court to find such authority. Mandale v. Des Moines Tria Tower, LLC, No. CIV. A. 08-048 8,
2009 WL 2412596, at *3 (E.D. Pa. Aug. 5, 2009).
The September 22, 2014 mailed Summons and Complaint made no mention of Defend
Salkin at all. Instead, it was addressed to Defendant Laura Kirsch and stated in pertinent p

2

An "agency appointment" for purposes of service of process usually requires an actual
appointment for the specific purpose of receiving process. In dealing with the question of
acquiring jurisdiction over a defendant by serving process upon an agent, the nature of the
relationship between the defendant and the alleged agent must be taken into consideration. Ev
a claim by a person receiving service of process that he is an authorized agent to accept servic
does not, without more, confer authority on that person to act as an agent to receive process; th t
authority can only come from the principal.
§ 11:46.Service on agent, 3 Cyc. of Federal Proc.§ 11:46 (3d ed.).
11

t

"[E]nclosed please find a Summons and Complaint. Please let me know if you will accept servi e
on your behalf and/or on behalf of Kirsch & Kirsch." There is no evidence that the September
2014 mailing was intended for Defendant Salkin.
In addition, Plaintiff's argument that "[C]ourts have nearly always found attorneys to e
implied agents in circumstances such as this" is not persuasive. (ECF No. 18 at 7). The cases t
Plaintiff cites to in his papers are distinguishable upon the facts from the matter before us.
instance, in Reckling v. Okechuku, the Court concluded that the attorney was authorized to ace
service on the Appellant's behalf because (1) the attorney expressly consented to accept se
on the Appellant's behalf, (2) the attorney acted as the appellant's agent during depositions
settlement negotiations, (3) and the appellant did not raise the assertion that the attorney was
authorized to accept service until after default judgment was entered against him. Recklin
Okechuku, No. CIV. 07-1699 (GEB), 2007 WL 2473831, at *5 (D.N.J. Aug. 27, 2007).
This Court also finds In re Spirco, Inc., 201 B.R. 744, 751 (Bankr. W.D. Pa. 1996) re
221B.R.361 (W.D. Pa. 1998) aff'd sub nom. Copelin v. Spirco. Inc., 182 F.3d 174 (3d Cir. 19
inapposite to the present action for several reasons. The Court in In re Spirco reasoned that
attorney was authorized by implication to accept service of a motion on behalf of the defend t
because the relief sought in the motion had a direct and highly significant effect on the judgm t
in the underlying litigation in which the attorney had represented defendant. (Id.). Moreover, t
Court also notes that although the Summons and Complaint mailed to the attorney was addres
to the attorney, it also included the defendant's name:
Wayne Copelin
c/o James Chesser, Esq.
1710 Grand Avenue

12

Nashville, TN 37212
Id. at 750.
As such, unlike the instant case where the mailing made no mention of Defendant Salkin, the ab

e

case is distinguishable since the mailing indisputably made for whom it was intended clear.
Finally, Plaintiff relies on United States v. Bosurgi, a Southern District of New York c e
in which the court decided that the defendants implicitly conferred authority on their attorney o
receive process. (ECF No. 18 at 7). In Bosurgi, however, the defendants retained their attorn s
for the purpose of asserting a right to a fund, the attainment of which "necessarily required

e

attorneys to resist the claims to the fund asserted by other parties." 343 F.Supp. at 818. A a
result, the Bosurgi court found that, "receipt of process by the attorney in this suit ... wa a
necessary incident to the attorney's effort to establish [the defendants' claim]." Id. In contr
however, Plaintiffs allegations provide no basis for an inference that Defendant Salkin confi

d

authority on Kirsch & Kirsch to receive service.
Furthermore, the case law in this District supports the Court's determination that neit er
Defendant Laura Kirsch nor Kirsch & Kirsch were authorized to accept service on Defend t
Salkin's behalf. In Orlick v. J.D. Carton & Son, Inc., a case with similar facts, the Court explai
the following:
The fact that the same counsel in this case represents both Defendants should not
affect the timeliness of Defendant Allied's notice of removal. Assuming that a firm
in question represents both or all defendants, and further assuming that a firm in
question handled all litigation for both or all defendants nationwide, and still further
assuming that the same attorney within a firm handled all matters for both or all
clients, the knowledge of counsel should not, as a matter oflaw, prejudice the laterserved defendant when considering the strategic benefits and concerns of removing
a case from state court to federal court. Indeed, the assumptions in and of
themselves are tenuous, at best.
Orlick v. J.D. Carton & Son, Inc., 144 F. Supp. 2d 337, 343 (D.N.J. 2001).

13

As such, this Court concludes that the "right to removal is specific to each defendant, not ea
attorney." Allstate New Jersey Ins. Co. v. Summit Pharmacy. Inc., No. CIV.A. 13-5809 (JB ,
2013 WL 6795207, at *4 (D.N.J. Dec. 19, 2013).

Finally, we note that, indeed, Defend

Kirsch & Kirsch no longer represent Defendant Salkin. It could lead to a logical anomaly o
assume the Kirsch firm had authority to accept service when, indeed, they have been substitu
out this early in the proceedings.
Therefore, by serving Kirsch & Kirsch, Plaintiff did not also properly serve Defendant Sal n
in the process. For the reason that this Court finds that Defendant Salkin was not effectively se
until he was personally served on September 30, 2014, his removal period did not commence n
September 22, 2014, but rather commenced on September 30, 2014.

C. Last-Served Defendant Rule:
The "last served defendant" rule permits the last served defendant to remove the entire c e
within thirty days of service. Bostrom v. New Jersey Div. of Youth & Family Servs., No. C
11-1424 (JBS), 2011WL3684817, at *3 (D.N.J. Aug. 22, 2011). Under this rule, otherdefenda ts
are permitted to consent to the later-served defendant's removal "even if their own removal peri

s

have expired." Di Loreto v. Costigan, 351 Fed. App'x 747, 752 (3d Cir.2009). Along with ot
circuits, the Third Circuit has reasoned that the later-served rule represents a proper reading of e
language of §1446(b). See Delalla v. Hanover Ins., 660 F.3d 180, 188 (3d Cir. 2011) (stating t at
"an earlier-served defendant should not be precluded from joining in another defendant's not e
simply because that defendant elected not to file a notice of removal").
In this case, Defendant Salkin was personally served on September 30, 2014, while s
discussed above at length, Defendants Laura Kirsch and Kirsch & Kirsch were served pursuan o
R. 4:4-4(c) via regular mail on September 22, 2014. Therefore, Defendant Salkin, being the 1

14

served defendant in the matter, would have had until October 30, 2014 to timely file a notice )f
removal petition. Defendant Salkin, therefore, met the timeliness requirement under 28 U.S.C §
1446(b) because he filed the Notice of Removal on October 29, 2014, which was within the 0
day time period to remove.

D. Rule of Unanimity:
Moreover, the "rule of unanimity" is clearly satisfied in this matter as well. The Th ·d
Circuit has adhered to the "rule of unanimity," thus requiring all defendants to join in the Not ce
of Removal or otherwise give consent when there is more than one defendant in the case. Le\ is
v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). This Court finds that all properly served defenda Its
unanimously joined in the petition for removal within thirty days of service on the later-sen
Defendant Salkin.

Here, the Defendants collectively filed a Notice of Removal.

~d

Thus, tll

Defendants clearly consented to the removal. See Pe2:asus Blue Star Fund LLC v. Canton Pro1 .,
Inc., No. CIV.A. 08-1533 (HAA), 2009 WL 331413, at *9 (D.N.J. Feb. 10, 2009) (earlier sen i:d
defendants effectively joined in later-served defendant's petition by collectively filing a Notice bf
Removal). Moreover, the Notice of Removal, (ECF No. 1), was signed by Daniel E. Kirsch, Es .,
the attorney representing all the Defendants at the time. 3 See Allstate New Jersev Ins. Co. v.
Summit Pharmacy, Inc., No. CIV.A. 13-5809 (JBS), 2013 WL 6795207, at *4 (D.N.J. Dec.

~.

2013) ("[S]haring counsel with previously-served Defendants does not obviate the n w
Defendants' right to removal."); see also Orlick v. J.D. Carton & Son. Inc., 144 F.Supp.2d 3'

~.

343 n. 6 (D.N.J. 2001) ("The fact that the same counsel ... represents both Defendants should i bt

3

The Court notes that the substitution of Harry D. Norton, Jr., Esq. as attorney for Defendant
Richard E. Salkin, Esq., did not occur until January 05, 2015. See ECF No. 10.
15

affect the timeliness of Defendant Allied's notice of removal ... the knowledge of counsel sho
not, as a matter of law, prejudice the later-served defendant ... "); contrast Uriarte v. Outb
Steakhouse, No. CIV.A. 11-897 (JLL), 2011 WL 4020953, at *8 (D.N.J. Sept. 8, 2011) (lat served rule not applicable because attorney signed acknowledgement of service on behalf f
Defendants at earlier served date). Accordingly, applying the later-served defendant rule to
facts of this case defeats Plaintiffs motion to remand.

V.

CONCLUSION

Based on the foregoing, the Court finds that Defendant Salkin, with the consent of 11
Defendants, timely and properly effectuated removal. Defendant Salkin did not receive serv e
until September 30, 2014, and therefore under the "last-served defendant" rule, had thirty d s
from that date to remove the case to federal court, as he did on October 29, 2014. Moreov ,
because the remaining defendants consented to Defendant Salkin's removal, all parties w e
properly removed to this Court, despite the fact that Defendants Laura Kirsch, Esq. and Kirsch
Kirsch LLP's removal period had expired. As such, this Court recommends that Plaintiffs moti n
to remand be DENIED.

cc.

Honorable Jose L. Linares, U.S.D.J.

16