NIBLACK v. OFFICER LORENZO PETTWAY et al
Filing
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OPINION filed re 9 MOTION to Remand. Signed by Judge Joel A. Pisano on 12/3/2013. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STANLEY L. NIBLACK,
Plaintiff,
v.
OFFICER LORENZO PETTWAY,
et al.,
Defendants.
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Civil Action No. 13-3740 (JAP)
OPINION
APPEARANCES:
STANLEY L. NIBLACK, Plaintiff pro se
#923038A
Southern State Correctional Facility (Unit 38)
4295 Rt. 47
Delmont, New Jersey 08314
CHRISTINE M. VANEK, ESQ.
SCARINCI HOLLENBECK
1100 Valley Brook Avenue, P.O. Box 790
Lyndhurst, New Jersey 07071
Counsel for Defendants
PISANO, District Judge
This matter comes before the Court on Plaintiff’s motion to
remand this matter to state court.
(ECF No. 9.)
considers Defendants’ motion to vacate default.
The Court also
(ECF No. 2.)
These motions are being considered on the papers, pursuant to
Fed.R.Civ.P. 78.
For the reasons set forth below, the Court
concludes that this action should be remanded to state court,
and therefore, Plaintiff’s motion shall be granted and
Defendants’ motion to vacate default will be denied as moot.
I.
BACKGROUND
On November 5, 2012, Plaintiff, Stanley L. Niblack
(“Niblack” or “Plaintiff”), filed a lawsuit in the Superior
Court of New Jersey, Law Division, Monmouth County, under Docket
No. MON-L-4506-12, against Defendants Officer Lorenzo Pettway of
the Asbury Park Police Department, the City of Asbury Park,
Asbury Park Mayor Ed Johnson and the Asbury Park Police
Department Chief or Captain Mark Kinnemon.
A.)
(ECF No. 1, Exhibit
Niblack asserts that his constitutional and civil rights
were violated by the Defendants stemming from an incident that
occurred in Asbury Park on August 17, 2011.
In particular,
Niblack alleges that, while he was in a friend’s parked car,
Defendant Pettway ordered Niblack to exit the vehicle, threw
Niblack against the vehicle and emptied the contents of
Niblack’s pockets.
(Id., ¶ 1.)
Pettway then ordered Plaintiff
to follow him to Niblack’s own car parked around the corner, and
Pettway proceeded to search Niblack’s vehicle and all of its
compartments and bags without Niblack’s consent or a search
warrant.
(Id., ¶¶ 2, 3.)
Niblack claims that Defendant Pettway
conducted an illegal search and seizure in violation of
2
Plaintiff’s constitutional rights, and that Defendants Mayor
Johnson, Chief/Captain Kinnemon and the City of Asbury Park
failed to train, supervise or discipline their police officers.
(Id., ¶¶ 3-7.)
Niblack seeks $ 4 million in compensatory,
punitive and special damages.
(Id., “Demand.”)
On June 17, 2013, Defendants removed this action to this
District Court pursuant to 28 U.S.C. §§ 1331 and 1441, asserting
that the Court has subject matter jurisdiction over Plaintiff’s
unlawful search and seizure claim pursuant to federal question
jurisdiction under 28 U.S.C. § 1331.
(ECF No. 1 at ¶¶ 4-6.)
On
June 26, 2013, Defendants filed a motion to vacate default and
extend the time within which to submit a responsive pleading.
(ECF No. 2.)
Defendants submitted an answer with their motion.
(ECF No. 2-1.)
Defendants argue that they were never personally
served with the complaint in the state court action.
Nevertheless, Plaintiff applied to state court for entry of
default, which was granted on April 1, 2013, two and a half
months before Defendants removed the action to this District
Court.
(ECF No. 2-2 at 4.)
On July 8, 18, 22, and 23, 2013, Niblack filed letters
and/or memoranda in opposition to removal.
and 8.)
(ECF Nos. 4, 5, 6, 7
On July 25, 2013, Plaintiff filed a motion for remand.
(ECF No. 9.)
In these papers opposing removal, Niblack refutes
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Defendants’ contention that service of process was not effective
on all of them.
Indeed, in his letter dated July 22, 2013,
Niblack attaches proof of service upon all Defendants, showing
that service was completed on February 19, 2013.
(ECF No. 7.)
Plaintiff argues that removal is improper in this case where
entry of default has been granted, where a motion for default
judgment and proof hearing was filed and served on Defendants in
state court, and where Plaintiff has filed an amended complaint
in the state court action, naming additional Defendants on whom
the Monmouth County Sheriff’s Office is attempting service of
process.
(ECF No. 4, 5 at ¶¶ 6 through 13.)
Niblack also alleges that he did not receive the Notice of
Removal until June 25, 2013, as Defendants used an incorrect
address to serve him.
Niblack contends that Defendants have
tactically employed removal knowing the limitations in
Plaintiff’s ability to respond quickly due to his incarceration.
(ECF No. 6.)
Niblack further alleges that Defendants’ counsel
was served with a Demand for Production of Documents in the
state matter on March 18, 2013, thus providing additional notice
of Plaintiff’s complaint against the Defendants months before a
notice of removal was filed.
(ECF No. 9-2.)
Consequently,
Plaintiff alleges that removal by Defendants was improper under
28 U.S.C. § 1446(b), because the matter was not removed within
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thirty (30) days after service of process.
Namely, Defendants
removed the state court case to the District Court on June 17,
2013, almost four months after service of process was completed
on all Defendants on February 19, 2013.
(ECF No. 9 at ¶ 15 and
Exhibit “B”.)
On August 19, 2013, Defendants filed opposition to
Plaintiff’s motion to remand this matter to state court.
No. 13.)
(ECF
Defendants acknowledge that the municipal Defendant,
the City of Asbury Park, was properly served on February 19,
2013, pursuant to New Jersey Rule of Court 4:4-4(a)(8).
However, Defendants argue that service on the individual
Defendants was defective because it was not served pursuant to
N.J.Ct.R. 4:4-4(a)(1), which allows service “by delivering a
copy thereof [of the summons and complaint] to a person
authorized by appointment or by law to receive service of
process on the individual’s behalf.”
Defendants contend that
the municipal clerk is not so authorized by any municipal
ordinance or state statute.
(ECF No. 13 at 3.)
Plaintiff filed a reply on September 12, 2013.
14.)
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(ECF No.
II.
A.
DISCUSSION
Standards for Removal and Remand
An action filed in a state court may be removed to the
appropriate federal district court by the defendant if that
federal district court would have had original jurisdiction over
the matter.
See 28 U.S.C. § 1441(a).
To effect removal, the
defendant must file a notice of removal, “containing a short and
plain statement of the grounds for removal, together with a copy
of all process, pleadings, and orders served upon defendant or
defendants in such action.”
28 U.S.C. § 1446(a).
The removing
party bears the burden of demonstrating that the federal court
has subject matter jurisdiction over the action.
See Frederico
v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); Samuel–Bassett
v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004); see
also Wells Fargo Bank, N.A. v. Mastoris, Civil Action No. 135008, 2013 WL 6154531, at *3 (D.N.J. Nov. 22, 2013).
The Third
Circuit has clarified that “[r]emoval statutes ‘are to be
strictly construed against removal and all doubts should be
resolved in favor of remand.’”
Id. (citing Steel Valley Auth.
v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.
1987)).
If the removal procedure was defective, however, the action
may be remanded to state court under 28 U.S.C. § 1447(c).
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Section 1447(c) states, in relevant part, that “[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 under section 1446(a).
If
at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.”
The Third Circuit has held that 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, 357 F.3d at 396.
Thus, on a motion to remand,
the burden of demonstrating a proper basis for removal remains
with the removing party.
2013 WL 6154531 at *4.
Wells Fargo Bank, Civil Action No.
Nevertheless, under the “well-pleaded
complaint” rule, a plaintiff is ordinarily entitled to remain in
state court so long as its complaint does not, on its face,
affirmatively allege a federal claim.
See Beneficial Nat’l Bank
v. Anderson, 539 U.S. 1, 6 (2003).
Finally, section 1446(b) controls the time limitations for
removal and provides:
The notice of removal of a civil action or proceeding shall
be filed within thirty 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....
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If the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty
days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order
or other paper from which it may first be ascertained that
the case is one which is or has become removable, except
that a case may not be removed on the basis of jurisdiction
conferred by section 1332 of this title more than 1 year
after commencement of the action.
28 U.S.C. § 1446(b)(1), (3).
Therefore, under § 1446(b), if an initial pleading is
removable, a defendant has thirty days after receipt of the
initial pleading to file its notice of removal.
See Peters v.
Stop & Shop, No. 13-6085, 2013 WL 5781199, at *2 (D.N.J. Oct.
25, 2013).
B.
Analysis
In this case, Plaintiff does not appear to contest the
basis for removal or subject-matter jurisdiction under 28 U.S.C.
§ 1331, but rather argues, among other things, that removal was
untimely.
As set forth above, Defendants must file a notice of
removal within “30 days after receipt by defendant, through
service or otherwise, of a copy of the initial pleading.”
U.S.C. § 1446(b)(1).
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“[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., Civil Action No. 07–
2759(FLW), 2007 WL 3256701, *2 (D.N.J. Nov.5, 2007) (internal
citation omitted).
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Here, it is evident that Defendants’ removal of the state
court action is untimely, having been made almost four months
after service of process was effective upon all Defendants on
February 19, 2013.
Defendants argue, however, that service was
not proper because the municipal clerk who accepted service on
behalf of the individual defendants was not authorized by
statute or ordinance to do so.
In their opposition to remand, Defendants rely on Murphy
Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344
(1999).
As stated by the Supreme Court, proper service is
effectuated, for purposes of § 1446(b), upon actual receipt of
service of the summons and complaint by the defendant.
Murphy
Brothers, 526 U.S. at 347–48 (“[W]e hold that a named
defendant’s time to remove is triggered by simultaneous service
of the summons and complaint, or receipt of the complaint,
‘through service or otherwise,’ after and apart from the service
of the summons, but not by mere receipt of the complaint
unattended by any formal service.”).
In that case, the
plaintiff had faxed a courtesy copy of a filed-stamp complaint
to defendant, and the parties engaged in settlement discussions.
However, the defendant was not officially served by certified
mail under local law until two weeks later.
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Id.
This case differs, however, because personal service of
process was made by sheriff’s officer under New Jersey law, not
by fax or mailing as in Murphy Brothers.
Plaintiff has provided
the Court with competent copies verifying service of process.
Indeed, the sheriff’s return of service facially indicates
compliance with N.J.Ct.R. 4:4-4(a)(1), and consequently is prima
facie evidence that service of process upon the individual
municipal defendants was proper.
The return of service was
provided to the state court upon Plaintiff’s application for
entry of default and entry of default was granted accordingly.
Thus, the Court finds that, even if the Defendants had not
specifically authorized the municipal clerk to accept service of
process, Defendants nevertheless were served with the summons
and complaint on February 19, 2013, and had notice of the
complaint and the nature of the pending lawsuit by Plaintiff by
“service or otherwise” on that date.
Moreover, it is the Defendants burden to establish that
removal was timely.
The notice of removal was substantially
deficient in this regard, having failed to provide any proof of
service or acknowledgement as to the date when the complaint or
notice of the complaint was first received by Defendants.
In
addition, it appears from the removal application that
Defendants failed to provide notice of removal to the state
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court, as required under 28 U.S.C. § 1446(d).
Therefore,
because it appears that Defendants had notice and receipt of
Plaintiff’s complaint by service or otherwise on or about
February 19, 2013, this Court finds that Defendants’ removal on
June 17, 2013 was untimely, and remand is appropriate.
Plaintiff’s motion is granted accordingly.
III.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for
remand (ECF No. 9) is granted.
Because this matter is remanded
to state court, Defendants’ motion to vacate default (ECF No. 2)
is denied as moot.
An appropriate order follows.
__/s/ Joel a. Pisano______
JOEL A. PISANO
United States District Judge
Dated: December 3, 2013
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