HO v. SIE et al

Filing 28

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 8/27/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHANG-NEIN HO,
Plaintiff,
Civil Action No. 12-7857 (MAS) (LHG)

v.

MEMORANDUM OPINION

SOPHIE SIB, et al.,
Defendants.

SHIPP, District Judge

The instant action was removed from the Superior Court of New Jersey. (ECF No. 1.)
Third Party Plaintiff Sophie Sie ("Sie") has brought suit, pro se, against a number of Third Party
Defendants. 1 (ECF No. 1-3.) Third Party Defendants Gareth Desantiago-Keene, Esq., John
Slimm, Esq., Marshall Dennehey Warner Coleman and Goggin Law Firm ("MDWCG"), and
Arch Insurance Company moved for remand. (ECF No. 2-4.) Third Party Defendant, Han.
Joseph L. Foster, J.S.C., has similarly moved for remand. (ECF No. 3-1.) First Party Plaintiff
Chang-nein Ho ("Mr. Ho"), prose, has also filed a motion seeking remand. (ECF No. 6.) Third
Party Defendant Community Medical Center has moved to dismiss the Third Party Complaint
pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). (ECF No. 19.) Third Party
Defendants David Schlendorf Law Office and Sylvia Breitowich, Esq., moved to dismiss under

1

The Third Party Complaint alleges claims against the following named Third Party Defendants:
Pratiwi Ramatjandra; John Slimm, Esq.; Gareth Santiago-Keene, Esq.; Geraldine Famularo;
Erma Chin; ARCH Insurance Company; MDWCG Law Firm; the Law Office of Gareth De
Santiago-Keene, Joseph L. Foster Law Office; Alpine Trading Company; and Valent
Ramatjandra, Inc. (ECF No. 1-3.)

Rule 12(b)(1) and Rule 12(b)(6). (ECF No. 22-4.) 2 Finally, Mr. Ho has also filed what is styled
as a "Motion to Enter Judgment and Trial Data." (ECF No. 25.)

The Court has carefully

considered the Parties' submissions and decided the matter without oral argument pursuant to
Local Civil Rule 78.1. For good cause shown, this action is REMANDED.
I.

Background

As the instant action is being remanded on procedural grounds and an absence of
jurisdiction, an extensive recitation of the procedural history and factual predicate of the case is
not necessary. The following filing dates, however, are relevant to the Court's determination.
Significantly, Mr. Ho filed a Complaint in state court on July 5, 2012. (ECF No. 2-28.) Mr. Ho's
Complaint alleges a claim of malicious prosecution. (ECF No. 1-2.) On August 27, 2012, Ms.
Sie filed her pro se Third Party Complaint. (ECF No. 2-19.) Taitin Chen ("Mr. Chen"),
apparently Ms. Sie's husband, filed a Notice of Removal certified on December 24, 2012. (ECF
No. 1 at 19; ECF No. 1-3, Count Two,~ 4.) 3 Count One of the Third Party Complaint alleges
Malicious Prosecution, and Count Two alleges a Breach of Good Faith and Fair Dealing. (ECF
No. 1-3.)

2

Filed with the Third Party Defendants' David Schlendorf Law Office and Sylvia Breitowich
Motion as Exhibit A is "Cross-claim Defendant Taitin Chen's Verified Answer to Cross Claim,
and Separate Defenses, and Verified Third Party Complaint." (ECF No. 22-5.) This document
seems to refer to additional Third Party Defendants. However, these purported additions do not
impact the Court's analysis.
3

On January 9, 2013, the Superior Court of New Jersey granted a Cross-motion to Dismiss with
prejudice the Third Party Complaint filed by Sophie Sie against Garth DeSantiago-Keene, John
Slimm and MDWCG and to enjoin Sophie Sie from filing further pleadings against these
defendants. Further, the court similarly granted Judge Joseph Foster's Motion to Dismiss the
Third Party Complaint. (ECF No. 9-1.)
2

II.

Analysis
A.

Legal Standard

Generally, a civil action brought before a state court of which the district courts have
original jurisdiction may be removed to the district court for the district and division where the
action is pending. 28 U.S.C. § 1441(a). A civil action removable solely on the basis of diversity
jurisdiction may not be removed if any of the defendants are citizens of the state where the action
was brought. 28 U.S.C. § 1441(b). An action is also removable when it "aris[es] under the
Constitution, laws, or treaties of the United States" in compliance with 28 U.S.C. § 1331.
28 U.S.C. § 1441(c). "Under Section 1441, an action may be removed from state court only
when the federal court would have had original jurisdiction over the matter." Agyabeng v. Kmart

Corp., No. 09-730 (DMC), 2009 WL 2151904, at *1 (D.N.J. July 14, 2009).
The defendant's right to remove is determined by the plaintiffs' pleadings at the time of
petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939). Furthermore, the
defendant has the burden of showing the existence of federal jurisdiction. Id. at 540-41. "[T]he
removal statute should be strictly construed and all doubts should be resolved in favor of
remand." Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). "If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded." 28 U.S.C. § 1447(c).

B.

Federal Question Jurisdiction

Federal question jurisdiction pursuant to 28 U.S.C. § 1331 extends to "only those cases in
which a well-pleaded complaint establishes either that federal law creates the cause of action or
that the plaintiffs right to relief necessarily depends on resolution of a substantial question of
federal law." Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S.

3

1, 27-28 (1983). Under the well-pleaded complaint rule, which governs whether a case arises
under federal law, the plaintiff is typically entitled to remain in state court if the complaint does
not, on its face, allege a federal claim. Pasack Valley Hasp., Inc. v. Local 464A UFCW Welfare
Reimbursement Plan, 388 F.3d 393, 398 (3d Cir. 2004). That a federal question may be raised as

a defense is insufficient. US. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002).
Rather, "[t]he controversy must be disclosed upon the face of the complaint, unaided by the
answer or by the petition for removal." !d.
Defendant Judge Foster argues that Mr. Ho's Complaint does not "implicate federal law
since it raises only a state law claim for malicious prosecution against the Third Party Plaintiff."
(ECF No. 3-1 at 9.) Judge Foster further argues that Mr. Chen, as a non-party, has no authority to
remove the action. (!d. at 9-10) Finally, Judge Foster argues that the several federal statutes cited
by the Third Party Plaintiff in the Notice of Removal are irrelevant since they are not mentioned
in the Third Party Complaint, and even if they were, a Third Party Complaint cannot serve as the
basis for "arising under" jurisdiction. (!d.)
Defendants Breitowich and David Schlendorf Law Office argue that the "laundry list of
federal criminal code sections" cited by the Third Party Plaintiff are either "punitive criminal
statutes or definitional [terms]" for which "[t]here is no indication that a private cause of action
exists." (ECF No. 22-4 at 9-10.)
The Court has reviewed Mr. Ho's Complaint and finds that it alleges only a claim of
malicious prosecution. (ECF No. 1-2.) Furthermore, "the third-party plaintiff filed his thirdparty complaint in state court; [and] there are no grounds for him to remove his complaint to this
Court. Moreover, even if this Court were to treat his third-party complaint as a counterclaim,
there would be no federal question jurisdiction because a counterclaim 'cannot serve as the basis

4

for "arising under" jurisdiction."' New Jersey v. $322,290.00, No. 11-6467 (JAD), 2012 WL
2993649, at *3 (D.N.J. July 5, 2012), report and recommendation adopted, No. 11-6467, (CCC)
2012 WL 2993895 (D.N.J. July 20, 2012) (emphasis in original) (internal citation omitted).
Accordingly, the Court finds there is no federal question jurisdiction.
C.

Diversity Jurisdiction

"Section 1332 requires complete diversity among the parties, meanmg that the
citizenship of every plaintiff must be different from the citizenship of every defendant." 212
Marin Boulevard, LLC v. Chicago Title Ins. Co., No. 09-6366 (JLL), 2010 WL 3169280, at *2
(D.N.J. July 8, 2010).
Plaintiff, Mr. Ho, is a resident of New Jersey. The defendant [Ms. Sie] in this action
resides in the ... State ofNew Jersey." (ECF No. 1-2.) The Verified Third Party Complaint sets
forth that Third Party Plaintiff Mr. Chen resides in New Jersey, and that several Third Party
Defendants are citizens ofNew Jersey, for example: (1) Ramatjandra has a business address in
New Jersey, (2) Santiago-Keene has a business address in New Jersey, (3) Slimm has a business
address in New Jersey, (4) Breitowich has a New Jersey corporate address, (5) David Schlendorf
Law Office is organized in, and has a principal place ofbusiness in New Jersey, (6) Judge Foster
is noted as being a New Jersey Superior Court Judge, "with a princip[al] place of business in
Toms, River, NJ," (7) Famularo is a "Certified Ocean County Court Reporter . . . with a
princip[al] place of business ... in Brick, NJ," and (8) Phillips is stated to be a document expert
with an "office organized under that laws of the State of New Jersey ... with a princip[al] place
ofbusiness [in] Audobon, NJ." (ECF No. 22-5, ,-r,-r 19, 22, 28-34.)
Accordingly, the Court finds there is no diversity jurisdiction.

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D.

Untimely Removal

In order to remove an action from state court, the defendant must file a notice of removal
within:
30 days after the receipt by the defendant, through service or otherwise, of a copy
of the initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not required
to be served on the defendant, whichever period is shorter.
28 u.s.c. § 1446(b)(1).
"[I]t is well-established that the thirty day period for removal is mandatory and cannot be
extended by the court." Galvanek v. AT & T, Inc., No. 07-2759 (FLW), 2007 WL 3256701, at *2
(D.N.J. Nov. 5, 2007) (internal citation omitted).
Plaintiff filed the original Complaint on July 5, 2012. The Third Party Plaintiff filed an
Answer and Third-Party Complaint on August 27, 2012. Judge Foster argues that "it can be
inferred that the Third Party Plaintiff received service of the Complaint prior to when she filed
her Answer." (ECF No. 3-1,

13.)

The Notice of Removal was filed on December 24, 2012, in

excess of 30 days after the Answer was filed. Remand is therefore appropriate.

III.

Conclusion
For the reasons set forth above, and for other good cause shown, it is hereby ordered that

the instant action is REMANDED. 4

MICHAEL A. SHJ

Dated: August

UNITED STATES DISTRICT JUDGE

c:)l:Jjo13

4

Divested of subject matter jurisdiction, and finding that remand is appropriate, the Court does
not reach the pending Rule 12(b)(6) motions or Mr. Ho's lengthy hand-written submission (ECF
Nos. 19, 22, 25).
6