RICHMAN v. A COUNTRY PLACE CONDOMINIUM ASSOCIATION, INC. et al
Filing
13
OPINION filed. Signed by Judge Brian R. Martinotti on 9/29/2017. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
PAUL RICHMAN,
:
:
Plaintiff,
:
:
Civil Action No. 16-9453-BRM-LHG
v.
:
:
A COUNTRY PLACE CONDOMINIUM :
ASSOCIATION, INC et al.,
:
OPINION
:
Defendants.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court is Plaintiff Paul Richman’s (“Plaintiff”) Motion to Remand this action to
the Superior Court of New Jersey, Law Division, Ocean County based on this Court’s lack of
jurisdiction. (ECF No. 5.) Defendants A Country Place Condominium Association, Inc. (“A
Country Place”), A Country Place Condominium Association Board of Directors, Barry
Frischman, Bary Hertz, Isaac Holtz, Fay Engleman, Livia Cohen, Ocean Management Group, Jack
Schmidt, Eli Swartz, Jessica Schach, Joe Gruen, Gary Eisenberger, Fay Engelman, Milton
Neuman, and United Paving Contractors, LLC (collectively, “Defendants”) oppose the Motion.
(ECF No. 6.) Pursuant to Federal Rule of Civil Procedure 78(b), this Court did not hear oral
argument. For the reasons set forth herein, Plaintiff’s Motion to Remand is GRANTED.
I.
BACKGROUND
The following facts are drawn from the Amended Complaint, Second Amended Complaint,
and the parties’ briefs. This case arises from Defendants’ alleged misconduct in relation to
Plaintiff’s use and enjoyment of his condominium and common areas. Plaintiff is a unit owner in
A Country Place, a condominium property in Ocean County, New Jersey. (Second Am. Compl.
(ECF No. 6-4) ¶ 1 and Am. Compl. (ECF No. 6-3) ¶ 1.) Among his numerous claims, Plaintiff
alleges Defendants “have placed an unreasonable restriction on Plaintiff’s use, enjoyment, and
right of access to the A County Place Pool by limiting mixed-gender access to the facility to two
hours a day for six days a week.” (ECF No. 6-4 ¶ 50 and ECF No. 6-3 ¶ 49.)
On September 2, 2016, Plaintiff filed his initial Complaint in the Superior Court of New
Jersey, Ocean County, and an Amended Complaint thereafter on December 5, 2016. (Compl. (ECF
No. 6-2) and ECF No. 6-3.) On December 22, 2016, Plaintiff submitted a Second Amended
Complaint, which was received and filed in the New Jersey Superior Court on December 27, 2016.
(ECF No. 6-4.) In the Second Amended Complaint, Plaintiff asserted two additional claims,
Counts Nine and Ten, alleging breach of the New Jersey Condominium Act and violation of the
New Jersey Law Against Discrimination (“NJLAD”), respectively. 1 (Id. ¶¶ 53-59.) On December
23, 2016, prior to the Second Amended Complaint being filed, Defendants removed the action to
federal court, arguing Count Eight of the Amended Complaint gives rise to federal jurisdiction
because Plaintiff’s gender-based allegations fall under the Fair Housing Amendments Act
(“FHAA”). (Notice of Removal (ECF No. 1) and Defs.’ Opp’n Br. (ECF No. 6) at 2-3.) Defendants
1
Plaintiff’s Second Amended Complaint included eleven additional claims in total. (ECF No. 6-4
¶¶ 53-101.)
2
claim the Court should not consider the additional claims asserted in the Second Amended
Complaint “since it was not properly filed in federal court . . . and was never served upon
[D]efendants or [their] counsel.” (Id. at 12.) In both the Amended and Second Amended
Complaints, Count Eight alleges Defendants “have placed an unreasonable restriction on
Plaintiff’s use, enjoyment, and right of access to the A County Place Pool by limiting mixedgender access to the facility to two hours a day for six days a week.” (ECF No. 6-4 ¶ 50 and ECF
No. 6-3 ¶ 49.)
Plaintiff now seeks to remand the action to state court, arguing: (1) Count Eight does not
arise under federal law because Plaintiff is only raising a state law claim in property interest; and
(2) claims in the Second Amended Complaint do not arise under federal law. (ECF No. 5-2 at 23.) Defendants contend: (1) the Court has federal question jurisdiction because Plaintiff’s claims
arise under the FHAA; (2) the Court should not consider Counts Nine and Ten because they were
added in the Second Amended Complaint, which was filed after the notice of removal; (3) the
Court must retain jurisdiction over Count Eight and remand the remaining counts should it decide
not to exercise supplemental jurisdiction; and (4) the Court should consolidate this case with a
separate pending action before this Court against Defendants because “the cases involve common
questions of law and fact, and to avoid any duplication of efforts and conflicting outcomes.” (ECF
No. 6 at 7-15.)
II.
LEGAL STANDARD
Under 28 U.S.C. § 1441, a defendant may remove claims filed in state court to federal
court. However, a plaintiff may challenge the removal by moving to remand the case back to state
court. 28 U.S.C. § 1447. Grounds for remand include: “(1) lack of district court subject matter
jurisdiction or (2) a defect in the removal process.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d
3
Cir. 1993). A motion for remand on the basis of a procedural defect in the removal must be filed
within thirty (30) days of the notice of removal, 28 U.S.C. § 1447(c), whereas “a motion to remand
based on lack of subject matter jurisdiction may be made at any time before final judgment.” Foster
v. Chesapeake Ins. Co., 933 F.2d 1207, 1212-13 (3d Cir. 1991) (citing 28 U.S.C. § 1447(c)).
“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. Ins.,
357 F.3d 392, 396 (3d Cir. 2004). A federal court may find that subject matter jurisdiction exists
when there is either diversity of citizenship or a federal question is raised. Jayme v. MCI Corp.,
328 F. App’x 768, 770-71 (3d Cir. 2008). With respect to diversity of citizenship, complete
diversity among opposing parties is required for a federal court to retain jurisdiction. Carden v.
Arkoma Assocs.¸ 494 U.S. 185, 187 (1990). Federal courts rigorously enforce the congressional
intent to restrict federal diversity jurisdiction, and therefore removal statutes are “strictly construed
against removal” and “doubts must be resolved in favor of remand.” Samuel-Bassett, 357 F.3d at
396-403. Additionally, when a case is removed, “all defendants who have been properly joined
and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).
With respect to federal question jurisdiction, federal courts retain jurisdiction “only if the
complaint seeks a remedy expressly granted by a federal law or if it requires the construction of a
federal statute, or a distinctive policy of a federal statute requires the application of federal legal
principles for its disposition.” Jayme, 328 F. App’x at 770 (internal citation omitted). Under 28
U.S.C. § 1331, a federal court has original jurisdiction over a civil action “arising under the
Constitution, laws, or treaties of the United States.” When there is no diversity of citizenship, and
a plaintiff asserts only state law claims, a federal court can still retain jurisdiction over claims that
“arise under” federal law. Gunn v. Minton¸ 568 U.S. 251, 257 (2013). A case “arises under” federal
4
law when a “state-law claim necessarily raise[s] a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any congressionally approved
balance of federal and state judicial responsibilities.” Id. at 258 (quoting Grables & Sons Metal
Prods. v. Darue Eng’g & Mfg., 545 U.S. 308, 324 (2005). In other words, “federal jurisdiction
over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution in federal courts without disrupting the federal-state
balance approved by Congress.” Id. “[F]ailure of even a single factor will render federal ‘arising
under’ jurisdiction inappropriate.” Desktop Alert, Inc. v. ATHOC, Inc., No. 15-8337, 2016 WL
1477029, at *5 (D.N.J. Feb. 24, 2016).
To determine whether the Court has jurisdiction under this theory, “the party asserting
jurisdiction must satisfy the ‘well-pleaded complaint rule,’ which mandates that the grounds for
jurisdiction be clear on the face of the pleading that initiates the case.” Goldman v. Citigroup Glob.
Mkts., Inc., 834 F.3d 242, 249 (3d Cir. 2016). More specifically:
[W]hether a case is one arising under the Constitution or a law or
treaty of the United States, in the sense of the jurisdictional statute,
. . . must be determined from what necessarily appears in the
plaintiff’s statements of his own claim in the bill or declaration,
unaided by anything alleged in anticipation of avoidance of defenses
which it is thought the defendant may interpose. Taylor v.
Anderson, 234 U.S. 74, 75-76 (1914) . . . Although [plaintiff]
allegations show that very likely, in the course of the litigation, a
question under the Constitution would arise, they do not show that
the suit, that is, the plaintiff’s original cause of action, arises under
the Constitution. Louisville & Nashville R. Co. v. Mottley,[]211 U.S.
[149], 152 [(1908)]. For better or worse, under the present statutory
scheme as it has existed since 1887, a defendant may not remove a
case to federal court unless the plaintiff’s complaint establishes that
the case “arises under” federal law.
5
Franchise Tax Bd. of State of CA. v. Constr. Laborers Vacation Tr. for S. CA., 463 U.S. 1, 10
(1983); see Kline v. Sec. Guards, Inc., 386 F. 3d 246, 251 (3d Cir. 2004) (quoting Caterpillar, Inc.
v. Williams, 482 U.S. 386, 392 (1987)).
III.
DECISION
Defendants argue the Court should not consider the Second Amended Complaint when
deciding the Motion to Remand because it was filed after the notice of removal. (ECF No. 6 at 56.) “[T]he nature of [P]laintiff’s claim must be evaluated, and the propriety of remand decided, on
the basis of the record as it stands at the time the petition for removal is filed.” Westmoreland
Hosp. Ass’n v. Blue Cross, 605 F.2d 119, 123 (3d Cir. 1979). Therefore, the Court must “base
decisions about subject matter jurisdiction after removal on the [P]laintiff’s complaint as it existed
at the time that the defendant filed the removal petition.” Briones v. Bon Secours Health Sys., 69
F. App’x 530, 535 (3d Cir. 2003) (internal citation omitted). Accordingly, the Court only considers
Plaintiff’s Amended Complaint in deciding this Motion. 2
Plaintiff challenges removal based on lack of original jurisdiction, 3 arguing Count Eight
alleges breach of common law property rights and “in none of [the] pleadings is any federal law
invoked.” (ECF No. 5-2 at 3, 5.) Specifically, Plaintiff argues Count Eight alleges “common law
ouster/tortious interference with an easement . . . based on the provisions of a deed which grants
to [] Plaintiff a proportionate undivided interest and a perpetual easement in the A Country Place
2
Even if the Court were to consider the Second Amended Complaint, it would reach the same
conclusion regarding federal question jurisdiction. The Second Amended Complaint adds state
law claims which are not dispositive on this Motion.
3
There is no diversity of citizenship in this matter as Plaintiff is a citizen of New Jersey and A
Country Place is a non-profit corporation of New Jersey. (ECF No. 6-3 ¶¶ 1, 5.) Instead, the
parties disagree as to whether Count Eight arises under federal law.
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Pool.” (Id. at 3.) Defendants identify Count Eight as their grounds for removal. (ECF No. 1 at 23.) Although Count Eight does not reference the FHAA or other federal law, Defendants argue
Plaintiff’s allegations in Count Eight raise gender discrimination claims, which “present a
substantial question of federal law as determined by the Fair Housing Amendments Act.” (ECF
No. 6 at 9-10.) Specifically, they argue:
[T]he references in count eight to “defendants having placed an
unreasonable restriction on plaintiff’s use, enjoyment and right of
access to the pool by limiting mixed gender access to the facility to
two hours per day for six days a week” are acts specifically
prohibited by the Fair Housing Amendments Act and [P]laintiff’s
right to relief, that the [D]efendants cease and desist from such
discrimination and allow [P]laintiff full access to the pool seven
days a week for all hours that the pool is open, poses a substantial
question of federal law and thus confers jurisdiction upon this
[C]ourt.
(Id. at 10.) They further contend “although plaintiff may have an adequate remedy in state law
under a common law theory of easement or ouster, his cause of action arose under federal law and
thus was properly removed.” (Id. at 9.)
Here, Count Eight of Plaintiff’s Amended Complaint alleges tortious interference with
easement and ouster. (ECF No. 6-3 ¶¶ 47-51.) Specifically, it states:
Defendants . . . have placed an unreasonable restriction on Plaintiff’s
use, enjoyment, and right of access to the A County Place Pool by
limiting mixed-gender access to the facility to two hours a day for
six days a week. These unreasonable restrictions were not in place
when [Plaintiff] first acquired his interest in the said property. In
addition to being an intrinsically unreasonable interference with
[Plaintiff’s] possessory interest and easement rights in the A
Country Place Pool, these restrictions were imposed without a
majority vote of the Resident-Members of A Country Place
Condominium Association, Inc.
7
(ECF No. 6-3 ¶¶ 47-51.) Plaintiff does not assert a FHAA claim, does not mention the FHAA, nor
does he mention the words segregation or discrimination. 4 (Id.) “[A] defendant cannot, merely by
injecting a federal question into an action that asserts what is plainly a state-law claim, transform
the action into one arising under federal law, thereby selecting the forum in which the claim shall
be litigated.” Caterpillar, Inc., 482 U.S. at 399. The well-pleaded complaint rule focuses on claims
and not theories. Franchise Tax Bd.¸ 463 U.S. at 26. Plaintiff contends he is raising property
interest claims. Plaintiff, therefore, has an adequate remedy in state law under a common law claim
of tortious interference with easement or ouster without invoking gender discrimination
protections under the FHAA. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986)
(“[T]he mere presence of a federal issue in a state cause of action does not automatically confer
federal question jurisdiction.”); Franchise Tax Bd.¸ 463 U.S. at 13 (“[F]ederal jurisdiction is
unavailable unless it appears that some substantial, disputed question of federal law is a necessary
element of one of the well-pleaded state claims . . . .”). 5
4
“A plaintiff can establish a prima facie claim of housing discrimination under the Fair Housing
Act by showing that the challenged actions were motivated by intentional discrimination or that
the actions had a discriminatory effect on a protected class.” Mitchell v. Walters, No. 10-1061,
2010 WL 3614210, at *6 (Sept. 8, 2010) (citing Cmty Servs., Inc. v. Wind Gap Mun. Auth., 421
F.3d 170, 176 (3d Cir. 2005)).
5
Defendants cites Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace
Workers, a Sixth Circuit court decision upheld by the Supreme Court finding federal jurisdiction
over the plaintiff’s state law claim, proposing that Plaintiff “may not defeat removal by omitting
to plead necessary federal questions in a complaint.” (ECF No. 6 at 8.) In Avco Corp., the plaintiff
alleged a breach of contract claim where the contract in dispute was a collective bargaining
agreement. Although the plaintiff never asserted a federal claim, dispute of the collective
bargaining agreement fell under Section 301 of the Labor Management Relation Act of 1947
(“LMRA”). The Supreme Court, however, has found the decision in Avco Corp. to be a “radical
departure from the well-pleaded-complaint rule.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,
15 (2003).
8
Defendants attempt to draw a parallel between this matter and another case before this
Court, Curto v. A County Place Condo. Ass’n¸ Inc., No. 16-5928, contending the plaintiffs in that
case raise similar allegations. (ECF No. 6 at 6.) Defendants state this Court retained jurisdiction
over the Curto case and that the “two cases share common questions of law and fact with respect
to use of the pool by both men and women at the same time and with respect to religious
discrimination also protected under the FHAA.” (Id.) Notably, a motion to remand was not filed
in Cutro. Moreover, the Curto complaint, unlike the Amended Complaint, however, specifically
alleges a FHAA claim for sex discrimination and focuses the claims on Defendants allegedly
discriminatory conduct. 6 (Pl.’s Br., Ex B (ECF No. 5-4) at 43-47.) Furthermore, the Curto
complaint, unlike the Amended Complaint before this Court, is pervaded with terms such as
discrimination and segregation. (Id. at 34-48.) Accordingly, Plaintiff’s Motion to Remand is
GRANTED. 7
IV.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion to Remand (ECF No. 5) is GRANTED.
Date: September 29, 2017
/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
6
The Curto complaint asserts three Counts. (Pl.’s Br., Ex. B (ECF No. 5-4) at 43-47.) Count One
alleges violation of the FHAA. (Id. at 43-45.) Count Two alleges violation of the NJLAD. (Id. at
45-46.) Count Three alleges violation of the Condominium Act, specifically relating to Defendants
allegedly discriminatory actions. (Id. at 46-47.)
7
Since Plaintiff’s Motion to Remand is granted, the Court need not address Defendants’
supplemental jurisdiction and consolidation arguments.
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