The opinion of the court was delivered by: ROSEN
Currently pending before the court is the motion
of Anthony K. Modafferi, III, Esquire, attorney for the defendant SenTech EAS Corporation
(hereinafter "SenTech"), to remand this action to the New Jersey Superior Court, Law Division, Burlington County, and for attorneys' fees and costs associated with this motion. After careful consideration of the submissions of the parties, and for the reasons noted below, the defendant's motion to remand shall be GRANTED. The defendant's request for costs pursuant to 28 U.S.C. § 1447(c) shall be DENIED.
II. FACTS AND PROCEDURAL HISTORY
This action was originally filed in the New Jersey Superior Court, Law Division, Burlington County on or about October 3, 1996 by the plaintiff, Ketec, Inc. (hereinafter "Ketec"), against the defendant, SenTech. See Notice of Removal at 2. The complaint alleged that the defendant breached the contract between the parties and failed to pay money due and owing to Ketec. See Complaint. The defendant answered the complaint and asserted several affirmative defenses. See Answer at 1-4. The defendant simultaneously asserted a counterclaim against the plaintiff, alleging that the plaintiff's product was defective. Answer at 4-5. The plaintiff answered the counterclaim, asserted several affirmative defenses, and made a request for a statement of damages claimed. See Answer to Counterclaim.
On November 4, 1997, the defendant filed a motion to amend the original answer and counterclaim. The proposed amendment asserted one additional affirmative defense to the complaint. Defendant's First Amendment to Answer (hereinafter "Amended Answer") at 1-3. The proposed amendment also included additional counterclaims and a third-party complaint against Ronald Kenny, George Kaltner and Roy Edwardsen. Amended Answer at 3-29. The third-party defendants are all alleged to be "agents, servants and/or employees engaged by the plaintiff Ketec with the requisite legal authority necessary to bind, obligate and/or subject Ketec to legal recourse by SenTech based upon their actions." Amended Answer at 3-4.
The third-party complaint contained a federal claim of false designation of origin under 15 U.S.C. § 1125(a) of the Lanham Act. The defendant claims that the plaintiff/counter-defendant and the third-party defendants willfully and intentionally
have used in commerce a device and false designation of origin which is likely to cause confusion, or to cause mistake, or to deceive consumers of EAS products as to the affiliation, connection, or association of them with SenTech, or is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship, or approval of SenTech's goods, services, or commercial activities by them.
Amended Answer at 10-11.
The motion to amend was granted orally on November 21, 1997 and an order was entered on December 2, 1997. Modafferi Declaration at 2. Thereafter, on December 19, 1997, the third-party defendants, Ronald Kenny, George Kaltner, and Roy Edwardsen, filed a Notice of Removal in this court.
The defendant filed this motion to remand on January 8, 1998.
As previously noted, a fundamental issue is whether or not a third-party defendant is permitted, under 28 U.S.C. § 1441, to remove an action to federal court. The relevant sections read as follows:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal ...