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SHAPIRO v. MIDDLESEX COUNTY MUN. JOINT INS. FUND

May 2, 1996

IRA A. SHAPIRO, D.C., et al., Plaintiffs,
v.
MIDDLESEX COUNTY MUNICIPAL JOINT INSURANCE FUND, et al., Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action brought by plaintiffs Ira A. Shapiro, D.C., John Allen, D.C. and the New Jersey Chiropractic Society (collectively the "Plaintiffs") against defendants Middlesex County Municipal Joint Insurance Fund ("JIF"), William Kurtz ("Kurtz"), Individuals Who Are Commissioners and Directors of JIF, Old Bridge/Sayreville Medical Group (the "Medical Group"), Individuals Who Are Shareholders, Directors and Officers of the Medical Group, Scibal Associates ("Scibal"), Claims Solutions, Allan F. Crane ("Crane") and Terrence G. Blackwell ("Blackwell") (collectively the "Defendants") seeking declaratory, injunctive and monetary relief.

 A complaint (the "State Complaint") was filed in the Superior Court of New Jersey, Chancery Division, Middlesex County (the "Superior Court") on 16 November 1995. In the State Complaint, Plaintiffs allege tacit conspiracy, intentional interference with contractual relations, intentional interference with business relations and violations of N.J.S.A. § 34:15-36 (Labor and Workmen's Compensation) and N.J.S.A. § 56:9-4(a) (New Jersey Antitrust Act; Monopolies). Defendants filed the instant notice of removal (the "Notice of Removal") on 27 December 1995. Removal jurisdiction is alleged pursuant to 28 U.S.C. § 1441. Currently before the court is the question as to whether this matter should be remanded to the Superior Court pursuant to 28 U.S.C. § 1447(c). *fn1" For the reasons set forth below, this matter is remanded to the Superior Court pursuant to 28 U.S.C. § 1447(c).

 Facts

 1. The Federal Action

 On 7 April 1994, Plaintiffs filed a twelve-page complaint (the "Federal Complaint") in this court against certain Defendants (the "Federal Defendants") *fn2" alleging violations of sections 4 and 16 of the Clayton Act (15 U.S.C. §§ 15 and 26) sections 1 and 2 of the Sherman Antitrust Act (15 U.S.C. §§ 1 and 2) and N.J.S.A. 56:9-3 (New Jersey Antitrust Act; Restraint of Trade). The Federal Defendants submitted a notice of intent to move to dismiss the Federal Complaint. At a status conference held on 21 July 1994, Plaintiffs were given until 29 July 1994 to amend the Federal Complaint. See Minutes of Proceedings (21 July 1994). At the status conference the Federal Defendants were instructed to file their motions to dismiss pursuant to Rule 12N, Appendix N of the Rules Governing the United States District Court for the District of New Jersey. Id.

 On 1 August 1994, Plaintiffs filed a nineteen-page amended Federal Complaint (the "Amended Federal Complaint"). On 23 September 1994, a second status conference was held to discuss the anticipated motions to dismiss. *fn3" See Minutes of Proceeding (23 September 1994). On 12 October 1994, JIF, Kurtz, Scibal, Crane and Blackwell submitted motions to dismiss; Plaintiffs submitted an opposing brief and affidavits.

 On 21 October 1994, counsel for JIF, Kurtz and Scibal wrote to the court to request an adjournment of oral argument on the motions to dismiss because of a conflict. Oral argument was adjourned to 23 November 1994. At the hearing on the motions to dismiss on 23 November 1994 and before any determination on the merits was rendered, Plaintiffs decided to voluntarily withdraw the Amended Federal Complaint. See Minutes of Proceedings (23 November 1994). The Federal Defendants did not oppose the voluntarily withdrawal. Id. By Order, filed 28 November 1994, the Amended Federal Complaint was dismissed without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure and without addressing the merits of the motions to dismiss.

 2. The State Action

 On 16 November 1995, Plaintiffs filed the State Complaint, bearing docket number C-310-95, in the Superior Court. Notice of Removal, Exh. A. In the seventy-one-page State Complaint (including exhibits), Plaintiffs allege tacit conspiracy, intentional interference with contractual relations, intentional interference with business relations and violations of N.J.S.A. § 34:15-36 (Labor and Workmen's Compensation) and N.J.S.A. § 56:9-4(a) (New Jersey Antitrust Act; Monopolies). Id., PP 58-157. Plaintiffs do not assert any claims for violation of any Federal statutory or common law rights. See id. On 27 December 1995, Defendants filed the Notice of Removal. At a status conference on 4 January 1996, the issue of remand was raised sua sponte because of the lack of diversity jurisdiction.

 Under the general Federal removal statutes, an action brought in state court can be removed to the Federal district court if that Federal district court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). *fn4" A defendant seeking to remove a case 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 ...." 28 U.S.C. § 1446(a).

 When confronted with a motion to remand a case to state court, the removing party has the burden of establishing the propriety of removal. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (removing party carries "heavy burden of persuasion"); Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 112 L. Ed. 2d 1046, 111 S. Ct. 959 (1991); Steel Valley Auth. v. Union Switch and Signal Div., Am. Standard, Inc., 809 F.2d 1006, 1011 (3d Cir. 1987), cert. dismissed, 484 U.S. 1021 (1988); Garcia v. General Motors Corp., 910 F. Supp. 160, 162 (D.N.J. 1995); Moore v. DeBiase, 766 F. Supp. 1311, 1315 (D.N.J. 1991); Mountain Ridge State Bank v. Investor Funding Corp., 763 F. Supp. 1282, 1288 (D.N.J. 1991); Davis v. Baer, 599 F. Supp. 776, 779 (E.D.Pa. 1984). Removal statutes, moreover, "are to be strictly construed against removal and all doubts are to be resolved in favor of ...


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