c. 11 (then N.J.S.A. 18:25-4 and 5), and decisions of the New Jersey courts.
Thus, the Appellate Division affirmed the State Board and further review was sought by petition to the Supreme Court of New Jersey for certification and by notice of appeal, but both were denied June 8, 1982, see Herring v. Fenton, 531 F. Supp. 937 (D.N.J. 1981), discussion at pp. 944-945.
Thereafter, various proposals were submitted by the Hillside Board and rejected by the Commissioner on various grounds and the present complaint was filed, seeking to order the Hillside Board to implement a plan selected by the Superior Court from among three plans developed by the N.J. Department of Education.
With this background, it is plain that the first adjudication by the Superior Court, Appellate Division is entitled to full faith and credit here under 28 USC § 1738, see Kremer v. Chemical Construction Corp., 456 U.S. 461, 72 L Ed 2d 262, 102 S. Ct. 1883 (1982). That ruling concluded that the correction of de facto imbalances was called for by State law, a matter no different in principle than what was involved in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980), and Princeton University v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L Ed 2d 855 (1982).
There is not, accordingly, any "federal question" to support removal on that account, and the petition for removal does not disclose any diversity of citizenship.
The present complaint.
One argument for federal question jurisdiction is that the activity of plaintiff Commissioner in the matter is financed by federal funds, or mostly so, and that such funds may not be used to support the program to correct de facto racial imbalance.
It is not necessary to pass on whether there is any validity to this claim because removal must be grounded on that which is in the complaint, not on a matter of defense. A plaintiff filing in State court is "master of his claim" and may limit it to a claim under State law even though he could also have advanced a federal claim that would have supported removal, La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (CA3, 1974), cert. den. 421 U.S. 937, 44 L. Ed. 2d 94, 95 S. Ct. 1666.
Whatever remedy may be available for unauthorized use of federal funds, it cannot provide a basis for removal here of a complaint limited to State law claims.
This argument, as well, fails to support removal.
Compliance with removal statute.
The plaintiff has provided and filed the proof of service of the Superior Court complaint and order to show cause. That proof shows delivery of 11 copies of the complaint to the attorney for the defendants in the first lawsuit, who said he was authorized to accept service.
For the purposes of the 30-day requirement of 28 USC § 1446(b), that receipt by him appears to be sufficient. Gobet v. Intercontinental Hotels, 184 F. Supp. 171 (D. P.R., 1960); Automatic Merchandising Co. v. Zenga, 159 F. Supp. 489 (D. Mass. 1958).
Defendants argue that under N.J. Court Rule R. 4:4-4(g), service must be made by delivering a copy of the "summons and complaint" personally to the presiding officer, the clerk or the secretary of the Hillside Board. That may be, but the fact is that R. 4:4-6 allows a general appearance or acknowledgement of service by a defendant's attorney. Besides, § 1446 (b) starts the calendar running when the complaint is received, by service "or otherwise". Delivery to the attorney, of course, affords defendants the longest possible times for the attorney to take up all aspects involved.
Even were these elements ineffective, the petition asserts that physical delivery of the complaint was on December 15, 1982 when copies were distributed at the Hillside Board meeting. If that be so, the last day to remove was January 14, 1983 and filing on the 17th was too late.
For each and all of the foregoing reasons, the court concludes that the removal was made improvidently and without jurisdiction, 28 USC § 1447(c), and must be ordered remanded. As with F.R.Civ.P. 12(h)(3), the court may act on its own initiative. The hearing conducted on January 17, 1983 afforded defendants all process due them on the question.
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