RENNHACK v. SNOW et al
Filing
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OPINION. Signed by Judge Mary L. Cooper on 5/3/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS J. RENNHACK,
Plaintiff,
v.
BRIAN R. SNOW, et al.,
Defendants.
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CIVIL ACTION NO. 11-2351 (MLC)
O P I N I O N
THE PLAINTIFF (1) is a New Jersey citizen, and (2) brought
this action in state court (“Rennhack Action”) against the
defendants — Brian R. Snow and Hardesty Candy Company, i/n/a
Hardest Candy Company (“HCC”) — to recover damages for injuries
sustained in a motor vehicle accident (“Accident”).
no. 1, Rmv. Not., Ex. B, Compl.)
(Dkt. entry
The Court’s own research
reveals that HCC is deemed to be a citizen of Virginia only.
THE DEFENDANTS removed the Rennhack Action under 28 U.S.C. §
(“Section”) 1332 on April 26, 2011, even though (1) Snow is a New
Jersey citizen, and (2) the defendants were served more than 30
days before removal, with Snow being served on January 31, 2011,
and HCC being served on February 7, 2011.
(Rmv. Not. at 2.)
But
the defendants seem to assert that the Court should overlook the
lack of diversity of citizenship and the untimely removal because
(1) another plaintiff brought an action involving the Accident
against Snow here on March 9, 2011 (“Murray Action”) wherein the
Court has Section 1332 jurisdiction, see Murray v. Snow, No. 11-
1339, and thus there is jurisdiction over the Rennhack Action
under Federal Rule of Civil Procedure (“Rule”) 19, and (2) HCC is
the “real party in interest”, as it is Snow’s employer.
(Id. at
2-4.)
THE DEFENDANTS’ ASSERTIONS are without merit.
First,
Rennhack is not a “citizen[] of [a] different State[]” in
relation to Snow. 28 U.S.C. § 1332(a)(1). Thus, the face of the
pleadings demonstrate that Section 1332 jurisdiction is lacking.
See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (reading
“statutory formulation ‘between . . . citizens of different
States’ to require complete diversity between all plaintiffs and
all defendants”); Brown v. Francis, 75 F.3d 860, 865 (3d Cir.
1996) (stating same); see also Liberty Mut. Fire Ins. Co. v.
Yoder, 112 Fed.Appx. 826, 828 (3d Cir. 2004) (stating “subject
matter jurisdiction is never waived”).
SECOND, there is no basis for the exercise of Section 1332
jurisdiction over the Rennhack Action based on Section 1332
jurisdiction over the Murray Action.
See Exxon Mobil Corp. v.
Allapattah Servs., 545 U.S. 546, 559-67 (2005) (noting incomplete
citizenship diversity destroys jurisdiction over all claims in a
second action, even if there is Section 1332 jurisdiction over a
related first action, as incomplete diversity in the second
action (1) leaves nothing to which supplemental jurisdiction can
adhere, (2) contaminates every claim in the second action, and
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(3) eliminates justification for providing a federal forum);
Franceskin v. Credit Suisse, 214 F.3d 253, 258 n.2 (2d Cir. 2000)
(stating Section 1367(b) bars court from exercising jurisdiction
over a second action if the only basis for jurisdiction given is
that there is Section 1332 jurisdiction over a “related” first
action, even if a party in the second action cites Rules 14, 19,
20, or 24).
THIRD, it is neither improper nor unusual under New Jersey
law for a plaintiff in an action to recover damages for personal
injuries to name an employee and an employer as defendants.
See,
e.g., Cockerline v. Menendez, 411 N.J.Super. 596, 604-05 (N.J.
App. Div. 2010) (concerning action to recover damages for
wrongful death caused in car accident brought against the driveremployee and the employer), cert. denied, 201 N.J. 499 (2010);
see also Printing Mart - Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 762 (1989) (stating that employee who performs an
allegedly tortious act may still be individually liable, even if
he was acting on employer’s behalf and realized no personal
benefit).
Thus, the defendants’ assertion that the Court should
disregard Snow’s citizenship because HCC is the real party in
interest is without merit.
FOURTH, the removal was untimely by any measure.
See 28
U.S.C. § 1446(b) (stating action must be removed within 30 days
of defendant’s receipt of initial pleading setting forth claim
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for relief).
HCC, the last defendant to be served, was served
more than two months before the Rennhack Action was removed.
Although not relevant, the Murray Action was brought more than 30
days before the Rennhack Action was removed.1
THE COURT, therefore, will remand the Rennhack Action for
all of the aforementioned reasons.
1447(c).
See 28 U.S.C. §§ 1446(a),
The Court will issue an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
May 3, 2011
1
The Court notes that the 30-day period is measured from
when Snow and HCC were initially served, and not from when their
insurers or current counsel were thereafter advised of the
action.
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