MELENDEZ et al v. JC PENNEY et al
OPINION fld. Signed by Judge William H. Walls on 1/4/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OLIVIA MELENDEZ and JOSEPH VELEZ,
Civ. No. 2:15-cv-02566 (WHW) (CLW)
JC PENNEY, SNOW SERVICES, LLC,
FERRANDINO & SONS, INC., and
WOODBRIDGE CENTER PROPERTY, LLC,
Walls, Senior District Jud2e
Plaintiffs move to remand this action to state court, arguing that the parties are no longer
diverse because of the addition of two new defendants. Decided without oral argument under
Federal Rule of Civil Procedure 78, Plaintiffs’ motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Olivia Melendez and Joseph Velez, two New Jersey citizens, began this action
in New Jersey state court, complaining that Melendez was injured at a J.C. Penney store in
Woodbridge, New Jersey after slipping on ice and snow. Compl. ECF No. 1-1
Removal, ECF No. 1 ¶5, Cert. of Gary Price, ECF No. 9
¶J 1-4; Not. of
¶ 2. J.C. Penney removed the action on
April 10, 2015, alleging complete diversity and an amount in controversy greater than $75,000.
Not. of Removal ¶ 9-21.
The original Defendants were J.C. Penney and General Growth Properties. Compl.
4. In its Answer, General Growth Properties stated that the location in question “is owned by
non-party Woodbridge Center Property, LLC.” ECf No. 5 ¶4. The parties stipulated and agreed
to replace General Growth Properties with Woodbridge Center Property on November 10, 2015.
ECF No. 12. Plaintiffs also moved to add two new Defendants: Snow Services, LLC and
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F errandino & Sons, Inc., both contractors who were employed to remove snow and ice from the
property in question. ECf No. 9; Price Cert.
¶J 6-8. Plaintiffs certified that both entities are
necessary parties, they became aware of their existence only afier receiving answers to their
interrogatories, and they had Defendants’ consent. Mot. to Amend, ECF No. 9
¶J 5-9. The
motion was granted by Magistrate Judge Waldor on November 9, 2015. ECF No. 10. The
following day, Plaintiffs filed an amended complaint. Am. Compl. ECF No. 13.
On November 10, 2015, Plaintiffs moved to remand this action, arguing that “the newly
allowed joinder of the parties destroys complete diversity in this matter.” Price Cert.
Plaintiffs submitted the results of a search for “Woodbridge Center Property” in New Jersey’s
Business Entity Information and Records Service and a contract between Defendants
Woodbridge and Snow Services that listed a New Jersey address for the company. Id. Ex. 3, Ex.
Defendants J.C. Penney and Woodbridge Center Property filed letter briefs opposing
remand on December 15 and 16, respectively. ECF No. 19-20. These Defendants noted that
Plaintiffs had failed to specifically allege the new parties’ principal places of business. Id. They
further request to be allowed to take the deposition of Plaintiff Melendez, which they contend
would resolve any jurisdictional questions. M Defendant Snow Services informed the Court that
it would not be submitting opposition papers in response to this motion. See ECF No. 21 at 3.
Plaintiffs filed a reply brief on December 21, 2015, specifically alleging that Snow Services has
its principal place of business and is incorporated in New Jersey. Id. at 1. Attached to the reply
brief is a copy of a certificate of formation for Snow Services that was filed with the Secretary of
State of New Jersey and states that the company’s registered office is in Edison, New Jersey.
ECF No. 21-1.
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Counsel for Plaintiffs are reminded that it “is usually improper for a moving party to shift
gears and introduce new legal arguments in the reply brief,” Stockroom, Inc. v. Dydacomp Dev.
Corp., 941 F. Supp. 2d 537, 543 (D.N.J. 2013), as they have done by alleging Defendant’s
principal place of business for the first time on reply. Counsel for Defendants are reminded that,
under Local Rule 7.1, opposition papers are to be filed at least 14 days prior to the noticed
motion day, and this Court has discretion to reject any brief or other paper not filed within this
time period. In the interest of having a full record, the Court will consider both Defendants’
arguments against remand and Plaintiffs allegations in their reply for the purposes of this motion.
STANDARD OF REVIEW
This Court has original jurisdiction over matters in which there is complete diversity of
citizenship between the parties and the amount in controversy exceeds $ 75,000. 28 U.S.C.
1332. A corporation is a citizen of every state by which it has been incorporated and of the state
where it has its principal place of business. Id. 28 U.S.C.
§ 1447 provides that, when “it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.” The
removing party has the burden of establishing that jurisdiction exists, and removal statutes “are
to be strictly construed against removal [with] all doubts.
resolved in favor of remand.” Boyer
v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991)
(internal citation omitted).
Plaintiffs contend that the joinder of the new parties “destroys complete diversity in this
matter and requires the remand of this matter back to State court.” Price Cert.
¶ 13. Specifically,
they allege that Snow Services is incorporated and has its principal place of business in New
Jersey. ECF No. 21. In support, they have submitted a certificate of formation filed by Snow
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Services with the Secretary of State of New Jersey that shows its incorporation under New Jersey
law and office of registration at an address in Edison, New Jersey. ECF No. 21-1
Defendants J.C. Penney and Woodbridge oppose remand and propose that the Court
“permit a deposition of plaintiff Melendez on the sole issue of the location of her fall.” ECF No.
19 at 3; ECF No. 20 at 1. They argue that Woodbridge and Snow Services were responsible for
the parking lot, while J.C. Penney and “its snow removal vendor” were responsible for the
sidewalk. Id. J.C. Penney submits that if Melendez:
fell on the sidewalk, Woodbridge and Snow Services, LLC could be dismissed
and there would be no issue of diversity. If plaintiff fell in the parking lot, J.C.
Penney and its snow removal vendor could be dismissed. (In the alternative, if
plaintiff refuses to dismiss parties, dispositive motions could be filed.) If Snow
Services, LLC is an LLC formed in the state of New Jersey with its primary office
in New Jersey, then diversity would be destroyed. Based on which parties are left
in the litigation and the citizenship of those parties, there could be an agreement
to remand by submission of a consent order.
The “party who urges jurisdiction on a federal court bears the burden of proving that
Boyer, 914 f.2d at 111. Defendants have not put forward any facts or
argument to suggest that Snow Services is diverse from Plaintiffs and have failed to meet that
burden. Their argument that the Court should authorize discovery as to the merits of this case
because it might dismiss non-diverse parties at a later stage is unsuccessful because “a federal
court generally may not rule on the merits of a case without first determining that it has
Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shzpping Corp., 549 U.S. 422,
430-31 (2007); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95
(1998) (“The requirement that jurisdiction be established as a threshold matter.
and without exception.”) (internal citation omitted). Because Plaintiffs have adequately alleged
that Defendant Snow Services is a New Jersey citizen and Defendants have not met their burden
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of establishing complete diversity, Plaintiffs’ motion to remand is granted. An appropriate order
Hon. William H. Walls
United States Senior District Judge
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