HART v. TARGET CORPORATION
Filing
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OPINION. Signed by Judge Stanley R. Chesler on 01/16/2018. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
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VIRGINIA L. HART
Plaintiff,
v.
TARGET CORPORATION,
Defendants.
Civil Action No. 17-11267 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court upon Plaintiff’s filing a motion to remand the case
(Docket No. 2), which Defendant opposes (Docket No. 3). The Court has reviewed the parties’
submissions and proceeds to rule without oral argument. See Fed. R. Civ. P. 78(b). For the
reasons set forth below, Plaintiff’s motion is granted, and this Court orders the case remanded to
the Superior Court of New Jersey.
I.
PROCEDURAL BACKGROUND
In May 2016, Plaintiff Virginia L. Hart (“Plaintiff”) filed a complaint in the Superior
Court of New Jersey against Defendant Target Corporation (“Defendant”) and Michael Boger
(“Boger” 1) for a slip-and-fall accident that occurred in one of Defendant’s New Jersey retail
1
The parties spell this name different. Comp. ‘Boger’ in Plaintiff’s motion for remand, ‘Borger’
in Defendant’s reply, and ‘Borg’ in Plaintiff’s original complaint. The spelling of the name of
non-party Boger does not affect the following analysis.
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locations where Boger was store manager. 2 Plaintiff and Boger are both New Jersey residents,
and Defendant is incorporated and has its principal place of business in Minnesota.
On August 14, 2017, Boger filed a motion for summary judgment, which Judge Maryann
Nergaard granted by order dated October 20, 2017. On November 6, 2017, Defendant filed a
notice of removal to the U.S. District Court for the District of New Jersey, based on diversity
jurisdiction under 28 United States Code § 1332. Within thirty days, Plaintiff filed the timely
motion to remand at bar.
II.
LEGAL STANDARD
28 United States Code § 1446 provides the procedures and requirements for defendants to
remove civil cases from state court to federal district court. One condition for removal is that “[a]
case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by
section 1332 more than 1 year after commencement of the action, unless the district court finds
that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”
28 U.S.C. § 1446(c). Since Defendant’s notice of removal under diversity jurisdiction was filed
more than one year after Plaintiff filed her complaint, removal is improper under this statute
unless this Court finds that Plaintiff acted in bad faith to prevent removal. 28 U.S.C. § 1446(c);
see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (“[I]n the absence of a
substantial federal question the removing defendant may avoid remand only by demonstrating
that the non-diverse party was fraudulently joined.”).
As the removing party, Defendant “carries a heavy burden of persuasion in making this
showing” that Plaintiff acted in bad faith to prevent removal. Batoff, 977 F.2d at 851 (internal
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The facts and procedural background in this section are predominantly taken from Plaintiff’s
motion, which Defendant concedes that it does not dispute.
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citations omitted). Bad faith is satisfied where “there is no reasonable basis in fact or colorable
ground supporting the claim against the joined defendant, or no real intention in good faith to
prosecute the action against the defendants or seek a joint judgment.” Batoff, 977 F.2d at 851
(internal citations omitted). However, “if there is even a possibility that a state court would find
that the complaint states a cause of action against any one of the resident defendants, the federal
court must find that joinder was proper and remand the case to state court.” Id. at 851. Only if the
claims are “not even colorable, i.e., were wholly insubstantial and frivolous” may the federal
court find bad faith preventing remand. Id. at 851.
When assessing whether plaintiff’s claims are colorable, the “district court must assume
as true all factual allegations of the complaint.” Id. at 851-2. Further, under Third Circuit law,
“removal statutes are to be strictly construed against removal and all doubts should be resolved
in favor of remand.” Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d
Cir. 1987).
When remanding a case for lack of subject matter jurisdiction, the district court may
award “payment of just costs and any actual expenses, including attorney fees” incurred by the
parties as a result of improper removal. 28 U.S.C. § 1447(c). “Absent unusual circumstances,
courts may award attorney's fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
The award of attorneys fees under § 1447 is left to the district court’s discretion. Id. at 138.
III.
DISCUSSION
In its papers, Defendant appears to advance two arguments for why the bad faith
exception to the one-year removal limitation is warranted in this case. First, Defendant argues
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that Plaintiff engaged in fraudulent joinder, as Boger “was fraudulently joined at the outset of the
case for no other purpose than to defeat diversity [jurisdiction].” Docket No. 3, 5. Second,
Defendant argues that Plaintiff had no good faith basis to prosecute the action against Boger.
Docket No. 3, 4 (claiming that “the facts do not support plaintiff’s assertion” that “she diligently
prosecuted the claim against Michael Borger”). The only evidence Defendant provides for either
argument is that Plaintiff did not notice the deposition of Boger until August 18, 2017, or four
days after Boger had filed his motion for summary judgment. Since neither argument is
compelling or supported by Third Circuit case law, this Court will grant Plaintiff’s motion and
order the case remanded to the Superior Court of New Jersey.
With respect to the fraudulent joinder argument, Defendant provides no Third Circuit
case law supporting the proposition that Plaintiff’s state law claims against Target store manager
Boger were “wholly insubstantial and frivolous,” or that there was not “even a possibility” that
Plaintiff’s state law claims against Boger were colorable. As noted above, this Court must
assume that the factual allegations in Plaintiff’s complaint are true when assessing Defendant’s
fraudulent joinder claim. In her complaint, Plaintiff alleges that Boger was the store manager of
the Target retail store, and that he was “responsible for oversight of safety and maintenance in
the store premises” at the time of Plaintiff’s slip-and-fall accident. Docket No. 2-2, 4. Assuming
that these factual allegations are true, Plaintiff’s state law claims against Boger fall well short of
the high “wholly insubstantial and frivolous” standard for fraudulent joinder. The fact that Judge
Nergaard ultimately granted summary judgment for Boger, after the close of discovery, does not
render Plaintiff’s state law claims against Boger “wholly insubstantial and frivolous.”
In fact, the procedural timeline for Judge Nergaard’s handling of the summary judgment
motion underscores how Plaintiff’s claims against Boger do not satisfy the “wholly insubstantial
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and frivolous” standard for fraudulent joinder. Judge Nergaard granted summary judgment as to
Boger only after Boger’s deposition and after the conclusion of discovery. And, when deciding
the summary judgment motion, Judge Nergaard had the parties appear for oral argument. Such
oral argument would not be necessary to dismiss “wholly insubstantial and frivolous” claims.
With respect to Plaintiff’s good faith prosecution against Boger, Defendant’s argument
again fails. The only evidence Defendant cites for Plaintiff’s lack of good faith prosecution
against Boger is that Plaintiff did not notice his deposition until after Boger had filed a motion
for summary judgment. Defendant provides, however, no Third Circuit case law indicating that
such a practice constitutes a lack of good faith prosecution. Defendant filed no motion to dismiss
the complaint as to Boger for failure to state a claim upon which relief can be granted, so
Plaintiff’s claims against Boger were not dismissed before the start of discovery. As such, even if
the claims against Boger were wholly insubstantial, Defendant’s own motion practice is partially
responsible for Boger continuing to be a party well past the one-year statute of limitation for
removal.
Plaintiff argues that it should be awarded attorneys fees in connection with its motion for
remand, because “there is not one indicia of evidence of bad faith present here . . . which could
satisfy Defendant’s high burden of persuasion required for removal,” and thus “there was no
objectively reasonable basis for Defendant to have sought removal.” Docket No. 2, 17. In its
opposition papers, however, Defendant provides one basis for the fraudulent joinder of Boger.
Namely, that Judge Nergaard granted summary judgment to remove Boger from the suit. While
this Court finds that such argument fails to satisfy Defendant’s heavy burden of persuasion under
Batoff, this argument nevertheless provides one, albeit uncompelling, basis for removal. As such,
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in its discretion, this Court will not grant attorneys fees to Plaintiff in connection with its motion
for remand.
IV.
CONCLUSION
Defendant has failed to meet its “heavy burden” of demonstrating that Plaintiff’s claims
against New Jersey resident Boger lacked a “reasonable basis in fact or colorable ground,” but
instead were “wholly insubstantial and frivolous.” Nor does Defendant satisfy such a “heavy
burden” in demonstrating that Plaintiff lacked a good faith basis to prosecute its claims against
Boger, merely because she noticed the deposition after Boger had filed a motion for summary
judgment. As such, this Court grants Plaintiff’s motion to remand, but does not grant Plaintiff
attorneys fees incurred in connection with the motion. An appropriate order shall ensue.
/s Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: January 16, 2018
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