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JERSEY PAVING CO. v. FIDELITY & DEPOSIT CO. OF MAR

March 1, 1985

JERSEY PAVING COMPANY, INC., Plaintiff,
v.
FIDELITY & DEPOSIT COMPANY OF MARYLAND, et al., Defendants. (3 cases); Earl B. PANCOAST, Plaintiff, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, et al., Defendants



The opinion of the court was delivered by: BISSELL

 At issue before the Court is the question of whether removal jurisdiction exists in each of the above cases pursuant to 28 U.S.C. § 1441(c). The non-resident removing defendant in each action (Fidelity & Deposit Company of Maryland -- "Fidelity") asserts that any claim against it as a bonding company is "a separate and independent claim or cause of action, which would be removable if sued upon alone," accordingly "the entire case may be removed." Ibid. One plaintiff (Earl B. Pancoast) opposes removal jurisdiction in this Court. Of course, since the present question involves the Court's jurisdiction over the subject matter, it may be addressed at any time and should be considered by this Court sua sponte even in those three actions where no party is objecting to removal. Fed.R.Civ.P. 12(b)(1), 12(h)(3).

 A brief description of the claims and procedural history of each action is appropriate:

 (1.) Jersey Paving Company, Inc. v. Fidelity & Deposit Company of Maryland and County of Camden, USDC DNJ Civil No. 84-2431.

 (2.) Jersey Paving Company, Inc. v. Fidelity & Deposit Company of Maryland and New Hanover Township, USDC DNJ Civil No. 84-2432.

 This action was also filed on or about April 16, 1984 in the Superior Court of New Jersey, Chancery Division, Burlington County, SCNJ Docket No. C1941-84. The Complaint mirrors that in item (1) above except that: the municipal contract was Contract No. 1982-1 between Marandino and defendant New Hanover Township; the paving work was allegedly performed on a designated parking lot in that municipality; and the amount due under this subcontract is allegedly $18,000. Both defendants filed Answers in the state court, and defendant Fidelity removed the action on the same grounds asserted in the first action discussed above.

 (3.) Jersey Paving Company, Inc. v. Fidelity and Deposit Company of Maryland and Lower Alloways Creek Township, USDC DNJ Civil No. 84-2433.

 This action was also filed on or about April 16, 1984 in the Superior Court of New Jersey, Chancery Division, Salem County, SCNJ Docket No. C1943-84. This Complaint mirrors those mentioned in items (1) and (2) above except that: the municipal contract was Contract No. 1366 between Marandino and Lower Alloways Creek Township; the paving work was allegedly performed on the "Buckhorn Road Culvert" in that municipality; and the amount due on this subcontract is allegedly $40,607.30. Defendant Fidelity filed an Answer in the state court and removed the action on the same grounds asserted in items (1) and (2) above.

 (4.) Earl B. Pancoast v. Fidelity and Deposit Company of Maryland and Lower Alloways Creek Township, USDC DNJ Civil No. 84-3926.

 This action was filed on or about August 21, 1984 in the Superior Court of New Jersey, Law Division, Salem County, SCNJ Docket No. L-053830-84. The Complaint is in three Counts, two against the municipality based upon a mechanic's lien and unjust enrichment, and the third against Fidelity as alleged bonder of Marandino. The contract is the same as that involved in item (3) above and apparently the action is based upon the same subcontract as that asserted by Jersey Paving Company, Inc. in that suit. Plaintiff Pancoast alleges that there is a balance due and owing to him of $23,112.26 for services and materials provided. Fidelity removed this action on the same grounds asserted in the other three matters.

 On September 27, 1984 this Court entered an Order consolidating all of the above actions "for all purposes under Civil Action No. 84-2431." On October 12, 1984, under caption of the Pancoast action only, that plaintiff filed and served a Notice of Motion, returnable November 19, 1984, "for an Order summarily dismissing Petition for Removal." The Court treated that motion as one for remand to the state court. No defendant opposed the motion, and the supporting papers revealed the clear absence of the required diversity of citizenship between plaintiff and all defendants. Accordingly, on November 19, 1984, this Court entered an Order remanding the Pancoast action to the Superior Court of New Jersey, Law Division, Salem County. *fn1"

 Arguing excusable neglect in failing to oppose Pancoast's prior application, defendant Fidelity now moves to have the Court reconsider and vacate its November 19, 1984 Order. Since a jurisdictional question is involved, the Court has entertained Fidelity's motion.

 Although counsel for both Pancoast and Fidelity have filed memoranda of law recognizing that the requirements of 28 U.S.C. § 1441(c) are determinative of this motion, neither supplied any decisional authority on the critical question of whether the claims against Fidelity are "separate and independent" from those asserted against the municipal defendants. This Court's own research has determined that they are not. Accordingly, the Order of Remand in Pancoast will stand. Furthermore, the Court will enter orders dissolving ...


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