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ROSEBUD HOLDING, L.L.C. v. BURKS

January 15, 1998

ROSEBUD HOLDING, L.L.C., a New Jersey Limited Liability Company, and RICHARD S. GREENBERG, Plaintiffs,
v.
JEFFREY BURKS, CONSTRUCTION REMEDIATION AND MAINTENANCE, L.L.C., a Maryland Limited Liability Company, and ENVIRONMENTAL WASTE MANAGEMENT ASSOCIATES OF MARYLAND, INC., a Maryland Corporation, Defendants.



The opinion of the court was delivered by: CHESLER

 CHESLER, MAGISTRATE JUDGE

 I. INTRODUCTION

 This matter comes before the Court on the motion of Plaintiff for remand to the New Jersey Superior Court, Law Division. Plaintiff's motion was referred to the undersigned by the Honorable John C. Lifland, U.S.D.J. Oral argument was heard on January 12, 1998. For the reasons set forth below, Plaintiff's motion will be denied.

 II. BACKGROUND

 On October 8, 1997, Plaintiffs, Rosebud Holdings, L.L.C. and Richard S. Greenberg, filed a Complaint against Defendant Jeffery Burks in the New Jersey Superior Court, Law Division. Immediately after the Complaint was filed, a copy was sent via facsimile to Robert Bennett, Esq. of the law firm of Condon & Forsyth, the attorneys representing Jeffery Burks in other matters.

 At the time the Complaint was faxed to Mr. Bennett, Lawrence B. Seidman, Esq., an attorney representing the Plaintiffs, spoke with Mr. Bennett and inquired whether Condon & Forsyth would agree to accept service of the Complaint. Mr. Bennett informed Mr. Seidman that he would need to consult with Katherine B. Posner, Esq., another attorney associated with Condon & Forsyth. *fn1"

 Shortly after his telephone conference with Mr. Bennett, Mr. Seidman received a letter from Ms. Posner that stated, in pertinent part, that Condon & Forsyth was not authorized to and would not accept service of the Complaint. The letter from Ms. Posner indicated that a copy of same was sent to Mr. Burks.

 Mr. Burks subsequently received the Complaint, via certified mail, on October 20, 1997. On November 18, 1997, Defendants removed the action to this Court. Plaintiffs moved to remand the action to the state court on December 10, 1997.

 III. DISCUSSION

 Plaintiff argues that removal was improper because the time in which to remove the case had expired. Defendants, however, argue that the case was timely removed because the notice of removal was filed within thirty days of Mr. Burks's receipt of the Complaint. The merits of each argument will be discussed in turn.

 A. Removal and Remand

 Civil actions filed in a state court can generally be removed to a federal court in that state if the district courts of the United States have original jurisdiction. *fn2" See 28 U.S.C. § 1441 (1992). The notice of removal of a civil action must be filed within thirty days after the defendant receives, through service or otherwise, a copy of the pleading that sets forth a removable claim. 28 U.S.C. § 1446(b). Once removed, however, a case may be remanded to the state court if the court determines that it lacks adequate federal subject matter jurisdiction or if the notice of removal was untimely. *fn3" See 28 U.S.C. § 1447(c) (1992).


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