PMC, INC. v. TOMCO CONSTRUCTION, INC. et al

Filing 29

OPINION. Signed by Judge Brian R. Martinotti on 11/18/2021. (bt, )

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 1 of 12 PageID: 521

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PMC, INC.,
Plaintiff,
v.
TOMCO CONSTRUCTION, INC., et al.,

Case No. 2:21-cv-13470 (BRM) (JSA)
OPINION

Defendants.
MARTINOTTI, DISTRICT JUDGE
Before this Court are three motions. The first motion is Plaintiff PMC, Inc.’s (“PMC”)
Motion to Remand this matter to the Superior Court of New Jersey, Hudson County Vicinage.
(ECF No. 9.) Defendants Excel Environmental Resources, Inc. (“Excel”) and Matthew Mauro
(“Mauro”) (collectively, the “Excel Defendants”) opposed (ECF No. 13), and PMC replied (ECF
No. 16). The second motion is the Excel Defendants’ Motion for Leave to File Surreply in Further
Opposition to PMC’s Motion for Remand and for Leave to Amend Notice of Removal. (ECF No.
17.) PMC opposed (ECF No. 20), and the Excel Defendants replied (ECF No. 24). The third
motion is the Excel Defendants’ Motion for Leave to File Third Party Complaint (ECF. No. 11.)
Having reviewed the submissions filed in connection with the Motion and having declined to hold
oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below
and for good cause having been shown, PMC’s Motion to Remand is GRANTED IN PART and
DENIED IN PART; and the Excel Defendants’ Motion for Leave to File a Surreply and for Leave
to Amend Notice of Removal is DENIED.

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 2 of 12 PageID: 522

I.

BACKGROUND
PMC is a Delaware corporation headquartered in California and owner of real property

located in Kearny, New Jersey. (Am. Compl. (ECF No. 1-1) at ¶¶ 2, 9.) On June 7, 2021, PMC
filed an Amended Complaint in the Superior Court of New Jersey, Hudson County Vicinage,
against Tomco Construction, Inc. (“Tomco”) and the Excel Defendants for damages to PMC’s
property resulting from water or other material allegedly discharged onto wetlands adjacent to the
property. (Id. ¶¶ 1, 3–5, 8, 15–18.) The Amended Complaint, which makes no mention of
Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42
U.S.C. § 9601 et seq., or other federal laws, alleges five state law causes of action:
negligence/trespass, vicarious liability for negligence, negligent supervision, nuisance, and
professional negligence. (Id. ¶¶ 19–39.)
On July 8, 2021, the Excel Defendants filed a Notice of Removal to this Court on the basis
of diversity jurisdiction. (ECF No. 1.) The Notice of Removal states:
This is a civil action over which this Court has original jurisdiction
pursuant to 28 U.S.C. § 1332, in that the plaintiff and the defendants
are citizens of different states and the amount in controversy exceeds
$75,000. Consequently, this matter is removable to this Court
pursuant to 28 U.S.C. §§ 1441 and 1446.
(Id. at ¶ 10.)
On August 4, 2021, PMC filed the Motion to Remand. (ECF No. 9.) PMC alleges this case
should be remanded because the Excel Defendants, along with their co-defendant Tomco, are New
Jersey citizens and, therefore, the Excel Defendants’ removal violated the “forum defendant rule.”
(Pl.’s Mot. Br. (ECF No. 9-2) at 4–6.) PMC also seeks an award of costs and expenses incurred in
bringing the remand motion because the Excel Defendants lacked an objectively reasonable basis
for removal. (Id. at 7–8.) On August 24, 2021, the Excel Defendants opposed PMC’s remand

2

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 3 of 12 PageID: 523

motion (ECF No. 13), to which PMC filed a reply in further support of its motion on August 31,
2021 (ECF No. 16). Then, on September 2, 2021, the Excel Defendants filed a motion for leave to
file a surreply in further opposition to PMC’s remand motion and for leave to amend the notice of
removal. (ECF No. 17.) PMC opposed this motion on September 20, 2021. (ECF No. 20.) On
September 27, 2021, the Excel Defendants filed a reply in support of the motion for leave to file a
surreply. (ECF No. 24.)
II.

LEGAL STANDARD
Pursuant to § 1441(a), “any civil action brought in a State court of which the district courts

of the United States have original jurisdiction, may be removed by the defendant or the defendants,
to the district court of the United States for the district and division embracing the place where
such action is pending.” 28 U.S.C. § 1441(a). A defendant seeking to remove a case to federal
court must do so within 30 days after being served with the complaint. 28 U.S.C. § 1446(b). The
notice of removal must “contain[] a short and plain statement of the grounds for removal.” 28
U.S.C. § 1446(a). “The party asserting jurisdiction bears the burden of showing that at all stages
of the litigation the case is properly before the federal court.” Samuel-Bassett v. KIA Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004).
“One category of cases over which the district courts have original jurisdiction are ‘federal
question’ cases; that is, those cases ‘arising under the Constitution, laws, or treaties of the United
States.’” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (quoting 28 U.S.C. § 1331). The
other category of cases over which district courts have original jurisdiction are “cases involving
diversity jurisdiction pursuant to 28 U.S.C. § 1332, encompassing, for the most part, those disputes
between citizens of different states involving the requisite amount in controversy[.]” New Jersey
v. City of Wildwood, 22 F. Supp. 2d 395, 400 (D.N.J. 1998). However, an “action otherwise

3

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 4 of 12 PageID: 524

removable solely on the basis of [diversity] jurisdiction . . . may not be removed if any of the
parties in interest properly joined and served as defendants is a citizen of the State in which such
action is brought.” 28 U.S.C. § 1441(b)(2). Stated differently, this rule, known as the “forum
defendant rule,” precludes removal based on diversity where a defendant is a citizen of the state in
which the plaintiff originally filed the case. See Williams v. Daiichi Sankyo, Inc., 13 F. Supp. 3d
426, 433 (D.N.J. 2014) (holding removal by non-forum defendants was improper because of the
presence of three forum defendants).
A plaintiff may move to remand within 30 days after removal. 28 U.S.C. § 1447(c).
“[R]emoval statutes ‘are to be strictly construed against removal and all doubts should be resolved
in favor of remand.’” A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir.
2014) (quoting Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel
Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987))).
Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” “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.” Martin v. Franklin Cap. Corp.,
546 U.S. 132, 141 (2005); Russ v. UNUM Life Ins. Co., 442 F. Supp. 2d 193, 200 (D.N.J. 2006).
III.

DECISION
A. Motion to Remand
PMC’s remand motion is premised on the application of the forum defendant rule because

the matter was removed to this Court on the basis of diversity jurisdiction and all defendants are
New Jersey citizens. (ECF No. 9-2 at 5–6.) In opposing the motion, the Excel Defendants concede
the action was removed on the basis of diversity jurisdiction and argue remand should be denied

4

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 5 of 12 PageID: 525

because Excel and Mauro were fraudulently joined in this action. (ECF No. 13 at 1, 6–9.) The
Excel Defendants also contend the Court has federal question jurisdiction because CERCLA and
“other federal laws” provide exclusive federal jurisdiction over PMC’s claims and because the
Excel Defendants’ defenses and counterclaims raise issues related to CERCLA and other federal
laws. (Id. at 9–12.) In PMC’s reply brief, it argues the Excel Defendants failed to refute the forum
defendant rule applies because they did not argue, let alone demonstrate, Tomco was improperly
joined. (ECF No. 16 at 5.) PMC further argues the Excel Defendants were not fraudulently joined,
and their federal question jurisdiction argument is both unsupported by law and untimely raised.
(Id. at 6–9.) PMC asserts is Amended Complaint alleges only state common law claims and
requests recovery under state law. (Id. at 8.) In a footnote, PMC observes the Excel Defendants
did not move to dismiss the claims against them, choosing instead to file an answer, suggesting
the weakness of their fraudulent joinder argument. (Id. at 6, n.1.)
B. Motion for Leave
The Excel Defendants’ motion seeks both leave to file a surreply and leave to amend their
removal notice. The first part of their motion contends leave to file a surreply is necessary to
address the following arguments in PMC’s reply brief: (1) the Excel Defendant’s failure to move
to dismiss the claims against them supports PMC’s position joinder was not fraudulent; (2) the
federal question argument premised on CERCLA is untimely; and (3) CERCLA does not preempt
PMC’s state law claims. (ECF No. 17-2 at 1–2.) 1 PMC responds leave should be denied because

1

The Excel Defendants also contend “despite knowledge that PMC was embroiled in a federal
environmental contamination suit, PMC certified that the matter at issue is not subject to any
pending action and there are no known parties who should be joined in this action.” (ECF No. 172 at 1. They do not allege PMC raised this argument for the first time in its reply brief, nor did
PMC raise this in its reply. (See id; see also ECF No. 16.) Therefore, the Court rejects this
argument as a basis to grant the Excel Defendants’ leave to file a surreply.
5

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 6 of 12 PageID: 526

its reply brief merely responds to the Excel Defendants’ arguments raised in opposition to remand,
which arguments were outside the four corners of the notice of removal. (ECF No. 20 at 5–6.)
The second part of their motion relates to a pending federal suit captioned Occidental
Chemical Corporation v. 21st Century Fox America, Inc., Civ. A. No. 18-11273 (D.N.J. June 29,
2018). The Excel Defendants contend they recently discovered the existence of the suit, and a
defendant in the suit, “PMC Global Inc.,” has asserted a third-party claim 2 for relief under
CERCLA for the same property that is the subject of PMC’s Amended Complaint. (ECF No. 172 at 4.) The Excel Defendants claim PMC and PMC Global Inc. are one and the same such that
the state law claims against the Excel Defendants here should be considered federal claims. (Id.)
The Excel Defendants argue leave to amend the removal notice should be granted to add federal
question jurisdiction because the request is timely and is premised on this “new” information. (Id.)
Specifically, they claim they were not aware of the existence of Occidental until after filing both
their notice of removal and opposition to remand. (Id. at 4–5.) PMC responds Occidental is “yearslong,” “entirely unrelated,” and could have easily been located prior to the filing of the removal
notice or opposition brief. (ECF No. 20 at 5–6.)
C. Federal Question Jurisdiction
The Excel Defendants’ argument in opposing remand—federal question jurisdiction exists
independently of diversity jurisdiction—and their argument in support of leave to amend the
removal notice to add federal question jurisdiction based on their discovery of Occidental are
related both because of the timing and nature of the arguments. The Court will address these
arguments together.

2

The Excel Defendants do not allege they are parties to Occidental or PMC Global Inc. asserted
any CERCLA claims against them in Occidental.
6

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 7 of 12 PageID: 527

The procedure for removal is set forth in 28 U.S.C. § 1446. A defendant wishing to remove
files a notice of removal “containing a short and plain statement of the grounds for removal[.]”
28 U.S.C. § 1446(a). “A party may freely amend the notice of removal within the thirty-day period
provided by § 1446(b) to remove an action.” Pickett v. Marriott Int’l, Inc., Civ. A. No. 13-6556,
2014 U.S. Dist. LEXIS 74790, at *5 (D.N.J. Mar. 24, 2014) (citing USX Corp. v. Adriatic Ins. Co.,
345 F.3d 190, 205 n.13 (3d Cir. 2003)). However, after the 30-day period expires, amendment to
the notice of removal “will be permitted only to the extent that it clarifies or corrects an allegation
already contained in the original notice” but not to add a new basis for removal jurisdiction. Id., at
*9 (citing USX Corp., 345 F.3d at 205 n.12 (citing 28 U.S.C. § 1653)); see Fenza’s Auto, Inc. v.
Montagnaro’s, Inc., Civ. A. No. 10-3336, 2011 U.S. Dist. LEXIS 29696, at *31 (D.N.J. Mar. 21,
2011) (“[A]mendments to remedy a ‘substantive defect in the [removal] petition,’ i.e., to add a
new basis for federal jurisdiction, are not permitted.”) (citing Blakeley v. United Cable Sys., 105
F. Supp. 2d 574, 579 (S.D. Miss. 2000)); see also ARCO Env’t Remediation, L.L.C. v. Dep’t of
Health & Env’t Quality, 213 F.3d 1108, 1117 (9th Cir. 2000) (“The Notice of Removal ‘cannot be
amended to add a separate basis for removal jurisdiction after the thirty day period.’”) (quoting
O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988)).
Strictly construing § 1446, see Samuel-Bassett, 357 F.3d at 396; Daiichi Sankyo, Inc., 13
F. Supp. at 429, an opposition to remand filed more than thirty days after removal in which a
defendant raises, for the first time, an argument for a wholly new jurisdictional basis for removal
is not an amended notice of removal filed in conformance with § 1446. Therefore, a defendant
may not add an entirely new basis for this Court’s removal jurisdiction by raising it only in an
opposition brief filed more than thirty days after removal. See Akins v. Radiator Specialty Co.,
Civ. A. No. 3:05-451, 2006 U.S. Dist. LEXIS 71076, at *4 (W.D. Pa. Sep. 29, 2006) (citing USX

7

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 8 of 12 PageID: 528

Corp., 345 F.3d at 205-206 n.11) (rejecting the defendants’ “new and independent basis for federal
question jurisdiction” raised in their response to the plaintiffs’ remand motion).
The Excel Defendants, having removed on the basis of diversity jurisdiction, asserted
federal question jurisdiction as the grounds for removal in their opposition to remand filed more
than thirty days after removal. This new basis for jurisdiction will not be considered. See Akins,
2006 U.S. Dist. LEXIS 71076, at *4. Therefore, the Court does not address the merits of Excel’s
argument in opposing remand that PMC’s state law claims present federal question jurisdiction. 3
Additionally, the Excel Defendants seek leave to amend the removal notice to add federal
question jurisdiction as a new basis for removal outside of § 1446’s thirty-day window. Such an
amendment is impermissible. See Fenza’s Auto, Inc., 2011 U.S. Dist. LEXIS 29696, at *38
(finding the defendants were procedurally barred from asserting a new basis for jurisdiction not
included in their initial notice of removal where their supplemental notice of removal was
untimely); see also Blakeley, 105 F. Supp. 2d at 579 (collecting cases holding defendants may not
amend their notice of removal to include a new basis for federal jurisdiction after § 1446(b)’s
thirty-day period expires). The Excel Defendants motion for leave to amend the notice of removal
is DENIED.

3

The Excel Defendants claim federal question jurisdiction attaches because CERCLA and other
federal laws provide the exclusive remedy for PMC’s claims. “The presence or absence of federalquestion jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal
jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly
pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “The rule makes the
plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on
state law.” Id. Because the Excel Defendants’ claimed federal question jurisdiction is untimely,
the Court makes no finding as to whether PMC’s Amended Complaint raises issues of federal law
under the “well-pleaded complaint” rule sufficient to confer federal question jurisdiction or the
relatedness of Occidental to the case here. The Court observes, however, that the Amended
Complaint makes no reference to CERCLA or other federal laws. (ECF No. 1-1.)
8

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 9 of 12 PageID: 529

D. Forum Defendant Rule
Because the Court concludes the Excel Defendants may not belatedly assert removal on
the basis of federal question, the Court has original jurisdiction over this action only if the Excel
Defendants have properly removed on the basis of diversity jurisdiction. See 28 U.S.C.
§ 1332(a)(1). More specifically, the issue presented in this remand motion concerns whether
28 U.S.C. § 1441, which contains the forum defendant rule, requires remand.
Not every diversity case is removable. 28 U.S.C. § 1441(b) states as follows:
A civil action otherwise removable solely on the basis of the
jurisdiction under section § 1332(a) of this title may not be removed
if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such an action is
brought.
§ 1441(b)(2).
PMC chose to commence its lawsuit against the Excel Defendants and Tomco in New
Jersey state court. For the Excel Defendants to invoke the Court’s diversity jurisdiction, they must
satisfy the § 1441(b) requirements. There is no dispute the three defendants here are citizens of
New Jersey. (ECF No. 9-2 at 4; ECF No. 13 at 6.) The Excel Defendants do not dispute Tomco
was properly served and joined. (ECF No. 13.) Accordingly, the “forum defendant rule” requires
a remand to state court because removal was improper. See Williams, 13 F. Supp. 3d at 433
(remanding to state court where three defendants were New Jersey citizens); King v. McEntee, Civ.
A. No. 16-7479, 2016 U.S. Dist. LEXIS 163947, at *4–5 (D.N.J. Nov. 28, 2016) (remanding to
state court where the defendant did not dispute he is a forum defendant). The Court need not
consider the Excel Defendants’ argument as to the inapplicability of the forum defendant rule due
to their alleged fraudulent joinder because the forum defendant rule still applies to Tomco.
Accordingly, PMC’s remand motion is GRANTED.

9

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 10 of 12 PageID: 530

E. Leave to File a Surreply
In the District of New Jersey, a surreply can be filed only with leave of the Court and at
the Court’s discretion. L. Civ. R. 7.1(d)(6). A surreply brief may be permitted by the Court to
respond to new arguments raised in the reply brief, “or explain a position in the initial brief that
the respondent refuted.” Smithkline Beecham PLC v. Teva Pharm. U.S., Inc., Civ. A. Nos. 040215, 05-0536, 2007 U.S. Dist. LEXIS 45703, at *3 (D.N.J. June 22, 2007) (citing cases); see also
Delrio-Mocci v. Connolly Props., Civ. A. No. 08-2753, 2009 U.S. Dist. LEXIS 84459, at *11
(D.N.J. Sep. 16, 2009) (finding a surreply was unnecessary because the defendant’s reply brief did
not raise any new arguments nor contain any statements requiring correction or further
explanation).
Here, PMC’s reply brief is appropriately responsive to the issues raised in the Excel
Defendants’ opposition brief. PMC’s footnote suggesting the weakness of the Excel Defendants’
joinder claim is in direct response to their argument they were fraudulently joined. As to PMC’s
arguments related to the timeliness of the Excel Defendants’ federal question jurisdiction claim or
CERCLA arguments, PMC cannot be expected to have raised these issues in their remand motion
when diversity jurisdiction was the basis for removal and the Amended Complaint made no
mention of federal law, let alone CERCLA. After reviewing the Excel Defendants’ submissions,
including the proposed surreply as well as the accompanying motion, the Court concludes the
conditions warranting a surreply have not been met. The Excel Defendants’ motion for leave to
file a surreply is DENIED. 4

4

The Excel Defendants’ proposed surreply, even had the Court allowed it to be filed, would not
affect the outcome of the Court’s decision regarding the Motion to Remand or Motion for Leave
to Amend the Notice of Removal.
10

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 11 of 12 PageID: 531

F. Attorneys’ Fees
PMC requests attorneys’ fees and costs from the Excel Defendants for removing this action
despite notice such removal violated the forum defendant rule. Section 1447(c) provides an “order
remanding the case may require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.” Whether to award attorneys’ fees is a matter of discretion
and, “[a]bsent unusual circumstances, courts may award attorney’s fees under § 1447(c) only
where the removing party lacked an objectively reasonable basis for seeking removal.” Russ, 442
F. Supp. 2d at 200 (quoting Martin, 546 U.S. at 141). An award is generally improper unless “the
removing party lacked an objectively reasonable basis for seeking removal.” Id. (quoting Martin,
546 U.S. at 141).
Although the Court agrees with PMC remand is required, the circumstances here do not
warrant an award of costs. The Excel Defendants’ arguments based on federal question, while
untimely, are sufficient to constitute a “reasonable basis” for seeking removal. See Bauer v.
Glatzer, Civ. A. No. 07-4501, 2007 U.S. Dist. LEXIS 92185, at *8 (D.N.J. Dec. 17, 2007) (“The
basis for Defendant[’s] . . . removal to the Court is not rendered unreasonable simply because
Defendant . . . did not comply with the procedural requirements of 28 U.S.C. § 1446(b).”).
Accordingly, PMC’S motion for costs and fees is DENIED.
IV.

CONCLUSION

For the reasons set forth above, PMC’s Motion to Remand (ECF No. 9) is GRANTED IN
PART and DENIED IN PART; the Excel Defendants’ Motion for Leave to File a Surreply and

11

Case 2:21-cv-13470-BRM-JSA Document 29 Filed 11/18/21 Page 12 of 12 PageID: 532

for Leave to Amend Notice of Removal (ECF No. 17) is DENIED; the Excel Defendants’ Motion
for Leave to File a Third Party Complaint (ECF No. 11) is DISMISSED as MOOT.
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

Dated: November 18, 2021

12