GELBER v. KIRSCH et al

Filing 8

REPORT AND RECOMMENDATIONS re 3 MOTION to Remand filed by STEVEN V. GELBER Objections, if any, to R&R due by 12/31/2014. Signed by Magistrate Judge Joseph A. Dickson on 12/17/2014. (nr, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
·----------------------------------------------------------------------------------------,
STEVEN v. GELBER,
Civil Action No. 2:14-cv-6768 (JLL) (JAD

I

Plaintiff,

I

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 upon motion (ECF No. 3) by plaintiff Steven V. Gel r
("Plaintiff') to remand this action to the Superior Court of the State of New Jersey, Pass ·c
Vicinage, pursuant to 28 U.S.C. § 1447 (the "Motion to Remand"). The Motion to Remand
referred to this Court for a Report and Recommendation. Pursuant to Rule 78 of the Federal Ru s
of Civil Procedure, no oral argument was heard. Upon consideration of the parties' submissio s,
and for the reasons stated below, it is the recommendation of this Court that Plaintiff's motio

o

remand be DENIED.

I.

REMOVAL FROM STATE COURT.

On September 11, 2014, Plaintiff, Steven V. Gelber filed the instant lawsuit in New Jer
Superior Court, Law Division, Bergen County, seeking compensatory and punitive damages, s

1

well as costs and attorney's fees stemming from a lawsuit brought by Defendants, Laura Kirs

,

Esq., Kirsch & Kirsch LLP, and Richard E. Salkin ("Defendants") against the Plaintiff, wh
Plaintiff alleges "was calculated and designed to intimidate Plaintiff . . . and chill

1s

constitutionally protected right to speak out on matters of public concern and to petition
government and make known his grievances." (Complaint, ECF No. 1-1). On October 21, 2
the action was transferred from the Superior Court Law Division, Bergen County, to the Supe

r

Law Division, Passaic County because Defendant Salkin's daughter is an employee working at

e

Bergen County Courthouse, and a companion case, Salkin v. Gelber, Docket No. BER-L-5480 2
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 remo al
is warranted under 28 U.S.C. § 1441(a) and 28 U.S.C. §1441(b) because Plaintiff's allegati

s

arise under the "laws of the United States," over which the Court has original jurisdiction pursu t
to 28 U.S.C. § 1331. (Notice of Removal, ECF No. 1). Specifically, Defendants point to the F
Count of the Complaint that purports to allege claims under the First Amendment of the Uni
States Constitution, and the Second Count of the Complaint that purports to allege claims un

r

Section 1 of the Civil Rights Act of 1871, 42 U.S.C. Section 1983. (IQJ
On or about November 18, 2014, Plaintiff filed a motion to remand this action to
Superior Court of the State ofNew Jersey, Passaic Vicinage, pursuant to 28 U.S.C. § 1447. (Mot n
to Remand, ECF No. 3). In Plaintiff's November 18, 2014 letterbriefin support ofhis motio

o

remand, Plaintiff contends that removal was improper and that this matter must instead

e

remanded to State Court. (PL Br., ECF No. 3-3). Specifically, Plaintiff argues that there w
defect in the removal process because, "Defendants failed to file their notice of removal within
days of receipt of the Summons and Complaint in conformance with 28 U.S.C. § 1446." (I .)

2

Plaintiff contends that the 30 day time period in which to file a notice of removal commenced n
September 22, 2014, when Defendants Laura Kirsch, Esq. and Kirsch & Kirsch LLP were provi
with the Summons and Complaint. (Id.) As such, Plaintiff reasons that Defendants' notice
removal was untimely because it was filed more than 30 days later, on October 29, 2014. (Id.)
addition to its request that the Court remand the action, the Plaintiff also requests that the Co rt
award attorneys' fees incurred as a result of the allegedly improper removal. (Id.)
On or about December 01, 2014, Defendants filed an opposition to Plaintiff's motion o
remand. (Defs'. Opp'n., ECF No. 6). In their opposition, Defendants contend that their remo
petition was timely filed because the 30-days in which to remove an action begins to run when

e

Defendants are formally served with the summons and complaint. (Id.) Defendants cite the Uni
States Supreme Court decision in Murphy Bros, Inc., v. Michetti Pipe Stringing, Inc., 526 U
344 (1999) to support their position that "the time for removal begins to run when the state co
establishes jurisdiction over the defendant." Accordingly, based on this reasoning, Defend
argue the 30-day removal period commenced when Plaintiff effected service on Mr. Salkin n
September 30, 2014, and on Ms. Kirsch and Kirsch & Kirsch LLP on October 1, 2014. (I .)
Unlike Plaintiff, Defendants contend that the 30-day removal period did not begin to run n
September, 22, 2014, when Plaintiff sent a copy of the complaint and summons to Ms. Kirsch y
regular, mail, email, and fax because Ms. Kirsch did not accept service at that time. (Id.) A a
result, Defendants maintain that the removal petition was timely filed on October 30, 2014 beca e
it was within 30 days from the date on which the Defendants were served. (Id.) In addition o
maintaining that removal was appropriate, Defendants urge the Court not to award attorneys' :fi s
to Plaintiff because they have a good faith argument for removal that is supported by case law
the clear language of28 U.S.C. 1446. (Id.)

3

On or about December 08, 2014, Plaintiff filed a reply brief in further support of its mot ~n
to remand. (PL Rep. Br., ECF No. 7). Plaintiff contends that Defendants' interpretation of Mum tv
Bros. is inaccurate. (Id. at 4). Rather, Plaintiff asserts, "[T]here is no question that Murohv Br s.
stands solidly for the proposition that the removal period begins with receipt of the Summons a b.d
Complaint by the defendants or their attorney and not any formal and technical adherence o
whether proper service has been effectuated." (Id. at 5). As such, Plaintiff maintains that in tie
instant matter, the time for seeking removal began to run when the Plaintiffs Complaint was s' nt
to Ms. Kirsch on September 22, 2014, and not when she and her firm were formally served w ~h
the Complaint and Summons on October 1, 2014. (Id. at 6). Therefore, Plaintiff contends t at
removal was untimely and that Defendants should bear responsibility for Plaintiffs costs and fc es
incurred as a result of this remand motion. (Id. at 7).

II.

LEGAL STANDARD - REMOVAL AND REMAND.

Title 28, § 1441(a) of the United States Code permits a defendant to remove a civil acti tm
in state court to a federal court where the action could have been filed originally, that is, where· Ile
federal court has subject matter jurisdiction over the action. Caterpillar Inc. v. Williams, 482 U IS.
386, 392 (1987). Section 1446 outlines the procedures for removal, and Section 1447 outlines ie
procedures following removal. 28 U.S.C. §§ 1446, 1447. Defects in removal may be procedu al
or jurisdictional. Under 28 U.S.C. § 1446(b)(l), a defendant has thirty days to remove a case, a ~d
this time limit "is a procedural provision, not a jurisdictional one." Farina v. Nokia Inc., 625 F Sd
97, 114 (3d Cir. 2010) (citing Ariel Land Owners, Inc. v. Dring, 351F.3d611, 614 (3d Cir. 200: ).
In tum, a plaintiffs "motion to remand the case on the basis of any defect other than lack of subj ct
matter jurisdiction must be made within 30 days after the filing of the notice of removal um er

4

section 1446(a)." 28 U.S.C. § 1447(c). Jurisdictional defects, however, maybe raised at anytir e.
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 id
322, 326 (3d Cir. 2009). Removal statutes "are to be strictly construed against removal and lll
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 ~ 5d
Cir.1987)).

III.

ANALYSIS.

Upon review of the relevant case law in this District, the Court agrees with the Defendar s,
that removal in the instant matter was timely under Section 1446(a). In its decision in Oxfi d
Realty Group. LLC v. Axis Reinsurance Co., this Court interpreted the Supreme Court holding m
Murphy Bros. to unequivocally stand for the proposition that "mere receipt of a complai lt,
unattended by formal service, is insufficient to trigger the thirty-day time period within whic a
defendant may remove."

Oxford Realty Grp .• LLC v. Axis Reinsurance Co., CIV-A 1' o.

08CV6303 (WJM), 2009 WL 1324028, at *2 (D.N.J. May 12, 2009); see also, Orlick v. J.D. Cart

~n

& Son, Inc., 144 F. Supp. 2d 337, 341 (D.N.J. 2001) (finding only once plaintiff has rendet ed

proper service is defending party obliged to take action). As such, in Oxford Realtv Groun. L C
v. Axis Reinsurance Co., the Court found that time period for removal was triggered by forn al
service upon the Defendant, and not by the mere receipt of the Complaint. Accordingly, based m
the foregoing, this Court finds that in the instant matter, the 30-days in which to remo .re
commenced when Plaintiff effected service on Mr. Salkin on September 30, 2014, and on 1\ s.

5

Kirsch and Kirsch & Kirsch LLP on October 1, 2014. Consequently, Defendants notice f
removal, filed on October 29, 2014 was timely. Therefore, Plaintiffs motion to remand and

r

attorney's fees and costs should be denied.

IV.

CONCLUSION.

It is the recommendation of this Court that Plaintiffs motion to remand (ECF No. 3)

request for attorney's fees and costs be DENIED.

cc.

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

6

d