NIBLACK v. PETTWAY et al

Filing 15

OPINION filed. Signed by Judge Michael A. Shipp on 10/1/2014. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STANLEY L. NIBLACK,

Civil Action No. 14-3883 (MAS)

Plaintiff,

v.

OPINION

OFFICER LORENZO PETTWAY, et al.,
Defendants.

APPEARANCES:
STANLEY L. NIBLACK, Plaintiffpro se
#923038A
Southern State Correctional Facility (Unit 38)
4295 Rt. 47
Delmont, New Jersey 08314
MICHAEL A. CIFELLI, ESQ.
SCARINCI HOLLENBECK
1100 Valley Brook Avenue, P.O. Box 790
Lyndhurst, New Jersey 07071
Counsel for Defendants Officer Lorenzo Pettway, City of Asbury Park, Mayor Ed
Johnson and Chief/Captain Mark Kinnemon
JOSEPH M. MORRIS, ESQ.
MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLC
Three Gateway Center
100 Mulberry Street
Newark, New Jersey 07102-4079
Counsel for Defendants Officer Eddie Raisen and Sergeant David DeSane

SHIPP, District Judge

This matter comes before the Court on the motion of Plaintiff Stanley L. Niblack
("Plaintiff') to remand this matter to state court. (ECF No. 6.) This motion is being considered
on the papers, pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, the Court remands
this matter to state court on the ground that Defendants' removal was untimely and defective
under 28 U.S.C. §§ 1446(b)(2)(A).
I. BACKGROUND

The Court observes that this is the second time Plaintiffs state court action has been
removed to this District Court. The first time, in Niblack v. Pettway, et al., Civil No. 13-3740
(JAP), counsel for Defendants Officer Lorenzo Pettway, City of Asbury Park, Mayor Ed Johnson
and Chief/Captain Mark Kinnemon ("original Defendants"), removed the action on June 17,
2013. In an Opinion and Order filed on December 3, 2013, the Honorable Joel A. Pisano,
U.S.D.J., remanded the case on procedural grounds as untimely because removal was made
almost four months after service of process was effected upon the original Defendants on
February 19, 2013. (See Niblack v. Pettway, et al., Civil No. 13-3740 (JAP), ECF Nos. 17, 18.)
Notably, there was no argument concerning subject matter jurisdiction of the action at that time.
On June 17, 2014, counsel for Defendants, Officer Eddie Raisen and Sergeant David
DeSane ("the new Defendants" or the "removing Defendants"), removed this action to federal
court. 1 The new Defendants state that, on May 24, 2014, Plaintiff served them by certified mail
with a copy of the summons, Jury Demand, Complaint and Amended Complaint. (ECF No. 1,
Notice of Removal

at~~

2, 3.) The new Defendants claim that removal is proper because the

allegations of the Amended Complaint assert claims under 42 U.S.C. § 1983 and the U.S.
1

The case was initially assigned to Judge Pisano, but thereafter, on July 16, 2014, the case was
reassigned to the undersigned. (ECF No.7.)
2

Constitution, thus giving the Court original jurisdiction pursuant to 28 U.S.C. § 1331. (Id.

at~

5.) Defendants also allege that removal was timely filed within the thirty (30) days following
service of the Summons and Complaint as prescribed by 28 U.S.C. § 1446.

(!d.,~

4.)

On July 11, 2014, Plaintiff filed a motion to remand this case to state court on the
grounds that removal was untimely and otherwise procedurally defective. Namely, Plaintiff
contends that all Defendants did not join or consent to removal as required under 28 U.S.C. §
1446(b)(2)(A). Plaintiff also argues that he has the right to choose the forum to litigate his
claims, and that Defendants have not established that federal jurisdiction exists over Plaintiffs
claims. (ECF No. 6-1, Plaintiffs Brief in Support of Remand.)
A brief history of Plaintiffs state court action and the prior removal action is merited
here. On November 5, 2012, Plaintiff filed a lawsuit in the Superior Court of New Jersey, Law
Division, Monmouth County, under Docket No. MON-L-4506-12, against the original
Defendants.

(ECF No. 1, Exhibit A - State Court Complaint.)

Plaintiff asserts that his

constitutional and civil rights were violated by the original 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. (/d.,

~

1.)

Pettway then ordered Plaintiff to follow him to Niblack's own car parked around the comer, 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 Plaintiffs constitutional rights, namely,
the Fourth Amendment, and that Defendants Mayor Johnson, Chief/Captain Kinnemon and the
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City of Asbury Park failed to train, supervise or discipline their police officers. (!d., ~~ 3 through
7.) Niblack seeks$ 4 million in compensatory, punitive and special damages. (!d., "Demand.")
On June 17, 2013, the original Defendants removed the state court action to this District
Court pursuant to 28 U.S.C. §§ 1331 and 1441, asserting that the Court has subject matter
jurisdiction over Plaintiffs unlawful search and seizure claim pursuant to federal question
jurisdiction under 28 U.S.C. § 1331. (Niblack v. Pettway, et al., Civil No. 13-3740 (JAP) at ECF
No. 1.)

The original Defendants argued 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 the original
Defendants removed the action to this District Court. (!d., at ECF No. 2-2 at 4.)
Plaintiff filed a motion for remand in the first removal action, refuting the original
Defendants' contention that service of process was not effective on all ofthem. Indeed, Plaintiff
attached proof of service upon the original Defendants, showing that service was completed on
February 19, 2013. (!d. at ECF No. 7.) Thus, Plaintiff argued that removal was improper where
entry of default had been granted, where a motion for default judgment and proof hearing was
filed and served on the original Defendants in state court, and where Plaintiff had filed an
amended complaint in the state court action, naming the new Defendants on whom the
Monmouth County Sheriffs Office was then attempting service of process. (!d. at ECF No.4, 5
at~~

6 through 13.)
Plaintiff further noted that counsel for the original Defendants was served with a Demand

for Production of Documents in the state matter on March 18, 2013, thus providing additional
notice of Plaintiffs complaint against the original Defendants months before a notice of removal
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was filed. (!d. at ECF No. 9-2.) Consequently, Plaintiff alleged that removal by the original
Defendants was improper under 28 U.S.C. § 1446(b), because the matter was not removed within
thirty (30) days after service of process, but instead, almost four months after service of process
was completed on February 19, 2013. (!d. at ECF No.9

at~

15 and Exhibit "B".)

The original Defendants filed opposition to Plaintiffs motion to remand in the first
removal action acknowledging that municipal Defendant, the City of Asbury Park had been
properly served on February 19, 2013, pursuant to New Jersey Rule of Court 4:4-4(a)(8), but 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."

The original Defendants argued that the municipal clerk is not so

authorized by any municipal ordinance or state statute. (!d. at ECF No. 13 at 3.)
In an Opinion and Order filed on December 3, 2013, Judge Pisano rejected the original
Defendants' arguments concerning service and found that removal was untimely. Therefore, the
case was remanded to state court on that ground. Judge Pisano also found that removal was
defective because the original Defendants had failed to serve the Notice of Removal on the state
court as required under§ 1446(d). (!d. at ECF Nos. 17, 18.)
In the present action, Plaintiff states that he had moved to amend his Complaint in state
court on June 9, 2013, adding Officer Raisen and Sgt. DeSane as new Defendants.

The

Honorable Joseph P. Quinn, J.S.C., granted Plaintiffs motion to amend the Complaint on August
16, 2013. On June 28, 2013, the new Defendants were served with the Amended Complaint, as
confirmed by the Monmouth County Sheriffs Office Affidavits of Service. The proof of service
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indicates that the Summons and Amended Complaint were hand delivered and accepted by Sgt.
DeSane.Z (ECF No. 6-3, Remand Motion at Exhibits D1, D2.) The new Defendants again were
served with a Summons and the Amended Complaint, by Sheriffs service, on December 3,
2013. Proof of service indicates that an alternate person was served, namely, Lt. Wilson, as an
agent authorized to accept service on behalf of the new Defendants.

(Jd., Ex. G1, G2.)

However, on April 30, 2014, Judge Quinn deemed that attempted service of the Amended
Complaint on Raisen and DeSane was ineffective and void, and ordered Plaintiff to serve the
new Defendants by regular and certified mail no later than May 30, 2014. (Jd. at Ex. H4.)
In the Notice of Removal at issue here, the new Defendants state that they were served
with the Amended Complaint on May 24, 2014. (ECF No. 1

at~

3.) In opposing Plaintiffs

motion for remand, the new Defendants argue that they included all "process, pleadings, and
orders" as required under 28 U.S.C. § 1446(a) and that they had obtained consent from all
Defendants before removal. (ECF No. 11.) The new Defendants also claim that removal is
jurisdictionally proper. (Jd.)
On August 4, 2014, counsel for the original Defendants wrote to the Court confirming
consent to removal of this action had been given to the new Defendants before the Notice of
Removal was filed. (ECF No. 10.) Also on that date, counsel wrote to the Court, informing that
the original Defendants joined in the arguments and opposition to Plaintiffs motion for remand
as set forth by the new Defendants. (ECF No. 12.)

2

DeSane was listed as an agent authorized to accept service on behalf of Officer Raisen, and as
personally served with respect to his Summons.
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II. DISCUSSION
A. 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, NA. v. Mastoris, Civil Action No. 13-5008 (PGS), 2013 WL 6154531, *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.'" !d. (citing
Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
If the removal procedure was defective, the action may be remanded to state court under
28 U.S.C. § 1447(c). 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." SamuelBassett, 357 F.3d at 396. Thus, on a motion to remand, the burden of demonstrating a proper
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basis for removal remains with the removing party. Wells Fargo Bank, 2013 WL 6154531 at *4.
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'! 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,
or within thirty 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.
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,
Civil Action No. 13-6085 (JAP), 2013 WL 5781199, *2 (D.N.J. Oct. 25, 2013).
B. Analysis

This action is facially removable because the Court has original jurisdiction under 28
U.S.C. § 1331, based on Plaintiffs explicit claim asserting Fourth Amendment violations by
Defendants. Therefore, the Court rejects Plaintiffs argument that his Amended Complaint does
not show federal jurisdiction because the original Complaint and the Amended Complaint both
affirmatively alleged a federal claim on the face of the pleadings. Indeed, federal jurisdiction
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was not an issue when this action was first removed in June 2013, as Plaintiff admittedly alleged
a Fourth Amendment claim in his initial Complaint.
Plaintiff also asserts that remand is proper because removal was untimely and
procedurally defective.

As set forth above, the removing 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." 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., Civil
Action No. 07-2759(FL W), 2007 WL 3256701, *2 (D.N.J. Nov.5, 2007) (internal citation
omitted).
Here, the new Defendants named in Plaintiffs Amended Complaint had a right to
removal because "each defendant individually has thirty days to file a notice of removal
beginning when that particular defendant is served." Delalla v. Hanover Ins., 660 F.3d 180, 185
(3d Cir. 2011); Allstate New Jersey Ins. Co. v. Summit Pharmacy, Inc., Civil No. 13-5809, 2013
WL 6795207, *4 (D.N.J. Dec. 19, 2013). Thus, regardless that the first removal by the original
Defendants was remanded because they untimely removed, the new Defendants' right to removal
is determined by the date they were served with the Amended Complaint.
However, the parties appear to dispute the date that the new Defendants were served in
this case. Plaintiff argues that he served the Amended Complaint on the new Defendants on June
28, 2013 and December 3, 2013. He attaches proof of Sheriffs service to his motion to remand.
(ECF No. 6-3, Exhibits D1, D2, G1, G2.) Thus, Plaintiff contends that removal was untimely
since it was filed many months later on June 17, 2014.

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The new Defendants claim they were properly served with the Amended Complaint on
May 24, 2014, and therefore, their removal on June 17, 2014 was timely within the mandatory
30-day period. Indeed, by Plaintiff's own exhibits to his motion to remand, it would appear that
service was never properly affected on the new Defendants until May 24, 2014. For instance,
Judge Quinn granted Plaintiff's motion to amend his Complaint on August 16, 2013, and
directed that the amended Complaint be served on each Defendant within 20 days. (!d., Ex. E2.)
Thus, the June 28, 2013 service occurred 48 days before the state court granted the amendment,
and the December 3, 2013 service was well beyond the 20 days granted. Further, it appears that
the state court action had been dismissed and was not reinstated until Judge Quinn entered an
Order vacating dismissal and reinstating the action to active trial status on April 30, 2014. The
April 30, 2014 Order also directed that the new Defendants answer the Amended Complaint
within 20 days. (!d., Ex. HI.)
A separate Order also was entered by Judge Quinn on April 30, 2014, with regard to the
original Defendants' motion to vacate default and to declare service on Defendants Raisen and
DeSane ineffective. Notably, that motion was brought by counsel for the original Defendants
and not on behalf of the new Defendants. Judge Quinn granted the original Defendants' motion
and vacated default. The original Defendants were given 20 days to respond to the Amended
Complaint.

Further, Judge Quinn deemed "Plaintiff's Attempted Service of the Amended

Complaint upon Eddie Raisen and Dave DeSane [as] ... ineffective and void." (!d., Ex. H4.)
Plaintiff was expressly directed to "serve the newly named Individual Defendants Raisen and
DeSane personally pursuant toR. 4:4-4 or by regular and cert. [sic] mail, no later than May 30,
2014." (!d.)
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Based on the state court orders as discussed above, this Court finds that the new
Defendants were not properly served in accordance with N.J.Ct.R. 4:4-4 until May 24, 2014.
Therefore, removal was timely effected by the new Defendants when it was filed on June 17,
2014.
The Court next considers Plaintiffs argument that removal was procedurally defective
because it was unattended by all "process, pleadings and orders" as required under 28 U.S.C. §
1446(a). The new Defendants correctly point out that the statute only requires that Defendants
file copies of "all process, pleadings and orders served upon such defendant or defendants in
such action" with the notice of removal. 28 U.S.C. § 1446(a) (emphasis added). The state court
orders and other documents referenced by Plaintiff were never served on these new Defendants.
Consequently, the failure to provide all orders entered in the state action with the notice of
removal was not necessary, and the new Defendants' notice of removal was not defective on that
ground.
Finally, Plaintiff argues that removal was defective because the new Defendants failed to
obtain consent from the original Defendants before filing the notice of removal.

Section

1446(b)(2)(A) includes a "unanimity" requirement that all defendants join in or consent to
removal within the 30-day removal period. See Granovsky v. Pfizer, Inc., 631 F. Supp.2d 554,
563 (D.N.J. 2009) (citing Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985)). "Although the
unanimity rule does not require each defendant to join in the actual notice of removal, courts
generally require each defendant served in the action to provide 'some form of unambiguous

written evidence of consent to the court in a timely fashion."' Monaghan v. City of Hackensack,
Civil No. 13-4544, 2014 WL 112973, *5 (D.N.J. Jan. 9, 2014) (quoting Michaels v. New Jersey,
11

955 F. Supp. 315, 321 (D.N.J. 1996) (emphasis in original)). For evidence of consent to be
deemed timely, it must be submitted within the 30-day removal period under § 1446(a).
Monaghan, supra; see also Burns v. City of Hoboken, Civil No. 10-5754,2011 WL 2881311, *12 (D.N.J. Jul. 15, 2011)

Further, one defendant may not proffer consent on behalf of another

defendant. Michaels, 955 F. Supp. at 21. Failure of all defendants to join or consent to removal
is a "defect in removal procedure" under § 1447(c), but it is not considered to be jurisdictional.
Monaghan, supra (quoting Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995)).
In this case, counsel for the new Defendants certified in the Notice of Removal that all
Defendants gave consent to the removal ofthis matter. (ECF No.1, Notice of Removal

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7.)

However, counsel for the original Defendants did not sign the removal notice. Nor did counsel
provide the Court with written notice of the original Defendants' consent to removal until a letter
was filed on August 4, 2014, more than one month after the 30-day removal period had expired.
Consequently, all Defendants did not timely consent to the removal as required under §
1446(b)(2)(A).
Nevertheless, the new Defendants argue that this Court should grant permission to amend
the Notice of Removal to cure this "procedural" defect in the interest of justice. In this district,
courts have discretion to permit the amendment of a notice of removal after the 30-day removal
period has expired when such an amendment would serve the interests of justice or judicial
economy.

See Cacoilo v. Sherwin-Williams Co., 902 F. Supp.2d 511, 523 (D.N.J. 2012); see

also Monaghan, 2014 WL 112973 at *7; Burns, 2011 WL 2881311 at *3; Wal-Mart Stores, Inc.
v. Elec. Ins. Co., Civil No. 06-3132, 2007 WL 137238, * (D.N.J. Jan. 18, 2007); Brown v.
Sarubbi, Civil No. 06-1634, 2006 WL 2014227,
12

*

(D.N.J. July 18, 2006). Despite this

discretion, courts are unlikely to grant leave to amend absent "extraordinary circumstances."
Cacoilo, 902 F.Supp.2d at 523.
Here, the new Defendants do not identify any extraordinary circumstances that might
justify a late amendment to the Notice of Removal. Instead, they simply contend that the defect
is procedural and de minimis.

This Court is disinclined to accept the new Defendants' de

minimis argument. First, the original Defendants clearly are not nominal parties to this action

that would otherwise excuse the unanimity requirement. See Cacoilo, 902 F. Supp.2d at 523.
Second, all Defendants are represented by competent and sophisticated counsel who should be
familiar with the rules and procedures of removal. Thus, any inadvertence or neglect concerning
compliance with the removal requirements in this matter rests with Defendants as the party
bearing the burden to establish that removal is proper. See Cacoilo, 902 F. Supp.2d at 522;
Brown, 2006 WL 2014227 at *3. Furthermore, having failed in the first removal attempt on
procedural grounds, Defendants should have exercised more diligence in this second removal
effort to justify excusing the defect in obtaining unanimity of consent to removal.
The new Defendants also contend that Plaintiff is not prejudiced by the removal. This
Court does not agree. Plaintiffs original action has been pending since November 2012, and the
original Defendants were dilatory in removing this action the first time. As observed earlier,
Judge Pisano remanded this case in December 2013 because the original Defendants' removal
was untimely and procedurally defective (Defendants did not give notice to the state court as
required under§ 1446(a)). Thus, the progress of Plaintiffs state court action has been impeded
by the original Defendants for a substantial period of time due to their lack of diligence.
Moreover, as evidenced by Plaintiffs exhibits, the state court has invested time and issued
13

several orders in the management of the state action to date. This Court also considers the clear
frustration described by Plaintiff, who has been diligent in trying to move his state case forward
in face of Defendants' obstacles.
Lastly, this Court finds Defendants' reliance on Wal-Mart Stores, Inc., 2007 WL 137238,
to be inapt. There, the court allowed the removing defendants to cure their procedural defect out
of time because the court had invested considerable time and effort in that case. In the present
case, judicial economy is not a concern because this Court has not issued any substantive orders,
conducted any conferences or otherwise had any involvement in this case outside of Plaintiffs
motion for remand. See Cacoilo, 902 F. Supp.2d at 524; Monaghan, 2014 WL 112973 at *7.
Therefore, having determined that consent to removal by all Defendants in this action
was untimely and defective under 28 U.S.C. §§ 1446(b)(2)(A) and 1447(c), remand is
appropriate. Plaintiffs motion is granted accordingly.
III. CONCLUSION
For the reasons set forth above, Plaintiffs motion for remand (ECF No. 6) is granted.
The Clerk will be directed to close this file accordingly. An appropriate order follows.

MICHAEL A. SHIPP
United States District Judge
Dated:

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