NAFART CONSTRUCTION GROUP, LLC v. ICON BUILDERS, LLC
OPINION. Signed by Judge William J. Martini on 6/2/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NAFART CONSTRUCTION GROUP, LLC,
Civ. No. 2:17-01283
ICON BUILDERS, LLC,
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Nafart Construction Group, LLC (“Plaintiff”) brings this action against
Icon Builders, LLC (“Defendant”), alleging claims of breach of contract and unjust
enrichment. This matter comes before the Court on Defendants’ motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(5) and Plaintiff’s motion to remand
pursuant to 28 U.S.C. § 1447(c). There was no oral argument. Fed. R. Civ. P. 78(b). For
the reasons set forth below, Defendant’s motion to dismiss is DENIED and Plaintiff’s
motion to remand is GRANTED.
Plaintiff is a construction company with its principal place of business located in
Newark, New Jersey. Notice of Removal (“Def.’s Notice”), Ex. A, Compl. ¶ 1, ECF No.
1-1 [hereinafter “Compl.”]. Defendant is a Texas corporation with its principal place of
business in Port Arthur, Texas. Def.’s Notice at ¶ 5. On December 14, 2016, Plaintiff filed
suit against Defendant in the Superior Court of New Jersey, claiming breach of contract
and unjust enrichment with damages of $90,120.00. See Compl. at ¶¶ 3–15. After
Defendant failed to timely answer, the Superior Court entered default against Defendant at
Plaintiff’s request on February 14, 2017. See Def.’s Notice, Ex. B at 13–14, ECF No. 1-2.
In support of its request, Plaintiff filed an affidavit of service (“Affidavit”) issued by a
private process server, Guaranteed Subpoena Service, Inc. (“GSSI”), affirming that
Defendant was properly served at its New Jersey address on December 28, 2016. Id. at 15
[hereinafter “Aff.”]. The Affidavit states that “Michelle Harter” was successfully served
at 10:18 a.m. and describes her as follows: white; brown hair; between 36 to 50 years of
age; between 5’9” and 6’0” in height; and weighing between 131 and 160 pounds. Id.
On February 23, 2017, Defendant filed notice of removal pursuant to 28 U.S.C. §§
1332, 1441 and 1446. See Def.’s Notice at ¶ 6. A week later, Defendant moved to dismiss
the Complaint with prejudice, claiming that Plaintiff never properly served Defendant in
accordance with New Jersey law. See Br. in Supp. of Mot. to Dismiss (“Dismiss Mot.”)
3–4, ECF No. 2-1. Defendant admits that a woman named Michelle Harder works as the
office manager of Defendant’s New Jersey office, but points to inconsistencies in the
Affidavit as evidence that she was never served. Defendant argues that, contrary to the
Affidavit, Ms. Harder is actually 5’6” tall, weighs approximately 120 pounds, and had
blonde hair at the time of purported service. See id. at 2; see also id., Ex. B, Harder Aff.,
ECF No. 2-3. Defendant also highlights the misspelling of Ms. Harder’s name as “Harter.”
Id. at 2. Ms. Harder denies having ever received any documents associated with this matter
prior to February 23, 2017. Harder Aff. at ¶ 6.
Plaintiff opposes, arguing that service was proper, that the Affidavit creates a
rebuttable presumption of the validity of service, and that Defendant’s uncorroborated
testimony is insufficient to overcome the presumption. See Pl.’s Br. in Opp’n to Def.’s
Mot. to Dismiss (“Dismiss Opp’n”) 3–6, ECF No. 4. Plaintiff filed a supporting
affirmation from the Chief Technology Officer of GSSI, which stated that GSSI maintains
a system that documents the location of a server at the time of service using the GPS
coordinates from the server’s cell phone. See Affirm. of J. Metta (“Metta Affirm.”), ECF
No. 4-1. The process server’s GPS coordinates at the time of service, 10:18 a.m., indicated
that the server was within 150 meters of Defendant’s New Jersey office. Id., Ex. A, ECF
No. 4-2. Defendant timely filed a reply. ECF No. 5.
Simultaneous to filing its opposition, Plaintiff filed a motion to remand the matter
to the Superior Court, arguing that Defendant’s notice of removal was untimely. See Br.
in Supp. of Mot. to Remand (“Remand Mot.”) 3, ECF No. 3-1. Plaintiff largely reiterates
the same arguments from its opposition to dismissal that service was proper. See id. at 4–
7. Likewise, Defendant reiterates its arguments that service was improper. See Def.’s
Resp. in Opp’n to Pl.’s Mot. to Remand (“Remand Opp’n”) 2–6, ECF No. 6. Notably,
Defendant argues that since Plaintiff’s service was improper, the 30-day time limit for
removal did not start until Defendant received notice of default. Consequently,
Defendant’s removal was timely. See id. at 1. Plaintiff filed a reply. ECF No. 7. The
Court finds that both motions turn on the same procedural concern about the propriety of
service and will address the motions together.
Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a complaint due
to insufficient service of process. “To determine the validity of service before removal, a
federal court must apply the law of the state under which the service was made.”
Granovsky v. Pfizer, Inc., 631 F. Supp. 2d 554, 560 (D.N.J. 2009) (citing Allen v. Ferguson,
791 F.2d 611, 616 n.8 (7th Cir. 1986)). Service of limited liability corporations is governed
by New Jersey Rule of Court 4:4-4(a)(5), which provides that service is proper when served
upon “an officer or a managing agent.” See Erwin v. Waller Capital Partners, LLC, No.
10-cv-3283, 2010 WL 4053553, at *5 (D.N.J. Oct. 14, 2010).
Diversity jurisdiction requires a dispute between citizens of different states and an
amount in controversy exceeding $75,000. 28 U.S.C. § 1332(a). “The notice of removal
of a civil action or proceeding shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading . . . .” See 28
U.S.C. § 1446(b)(1). “A 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 . . . .” See 28 U.S.C. § 1447(c). “[F]ailure to file a notice of removal within
the time period provided by the removal statutes is a sufficient ground on which to remand
an action.” Carroll v. United Air Lines, Inc., 7 F. Supp. 2d 516, 519 (D.N.J. 1998). “The
removal statutes are to be strictly construed against removal and all doubts should be
resolved in favor of remand.” Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir.
1990) (internal quotation omitted).
The parties’ motions turn on the answer to a simple question: was service proper?
If service was proper, then Defendant did not file notice of removal within the 30-day time
limit and Plaintiff’s motion to remand must prevail. If it was improper, then Defendant’s
motion to dismiss must prevail because Defendant’s notice of removal was timely and this
Court retains jurisdiction on diversity grounds. In light of the well-settled policy that “all
doubts be resolved in favor of remand,” the Court finds that remand is appropriate in the
instant case because service was proper. See Boyer, 913 F.2d at 111.
“The rule in [New Jersey] is that a sheriff’s return of service is part of the record
and raises a presumption that the facts recited therein are true. While the presumption is
rebuttable, it can be rebutted only by clear and convincing evidence that the return is false.”
Garley v. Waddington, 425 A.2d 1084, 1088 (N.J. Super. Ct. App. Div. 1981). The
presumption extends to returns of service made by private process servers authorized to
effect service pursuant to New Jersey Court Rule 4:4-3. Hillside Golf, Inc. v. Gino Inn,
Inc., 2010 WL 4056552, at *5 (N.J. Super. Ct. App. Div. July 22, 2010), cert. denied 12
A.3d 209 (N.J. 2010). Furthermore, “[i]t is generally held that the uncorroborated
testimony of the defendant alone is not sufficient to impeach the return.” Goldfarb v.
Roeger, 148 A.2d 189, 192 (N.J. Super. Ct. App. Div. 1959).
Defendant does not dispute that GSSI is an authorized private process server in New
Jersey, nor does Defendant argue that Ms. Harder could not accept service on its behalf.
Defendant does not contest the GPS coordinates provided by GSSI and does not refute that
GSSI’s server was, in fact, within 150 meters of its address at 10:18 a.m. on December 28,
2016. See Metta Affirm. at ¶ 7. Defendant offers only Ms. Harder’s uncorroborated
testimony in support of its claim that it was never served. Defendant’s sole argument rests
on apparent discrepancies between Ms. Harder’s physical appearance and the description
provided on GSSI’s return of service. See Dismiss Mot. at 3–4.
Defendant’s argument fails. First, the purported discrepancies are minor and do not
overcome the presumption of validity. See Hillside Golf, 2010 WL 4056552, at *5 (finding
that discrepancies in recipient’s physical description on the affidavit of service did not
overcome the presumption of validity); New Jersey Re-insurance Co. v. Saintphard, 2007
WL 3170117, at *6 (N.J. Super. Ct. App. Div. Oct. 31, 2007) (finding that a discrepancy
between recipient’s age and the age described on the affidavit of service was a “minor”
error). Second, the case law is clear that Defendant’s uncorroborated testimony, without
more, is insufficient to overcome the presumption.1 See Hillside Golf, 2010 WL 4056552,
at *5; Garley, 425 A.2d at 1088–89 (quoting Goldfarb, 148 A.2d at 189). Consequently,
the Court finds that Defendant has failed to overcome the presumption of validity of the
affidavit of service and that service was proper. Accordingly, Plaintiff’s motion to dismiss
is DENIED and Defendant’s motion to remand to the Superior Court is GRANTED.
For the reasons stated above, Defendants’ motion to dismiss is DENIED and
Plaintiff’s motion to remand to the Superior Court is GRANTED. An appropriate order
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: June 1, 2017
The Court acknowledges Defendant’s secondary argument that Plaintiff failed to file proof of service with the
Superior Court as required by New Jersey Court Rule 4:4-7. The rule plainly states, “Failure to make proof of service
does not affect the validity of service.” Defendant’s argument, therefore, has no bearing on whether Plaintiff properly
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