The opinion of the court was delivered by: Joseph A. Greenaway, Jr., U.S. District Judge.
This matter comes before the Court on the motion of Plaintiffs Harvey
and Eveline Orlick ("Plaintiffs") to remand this action to the Superior
Court of New Jersey, Law Division, Morris County, pursuant to
28 U.S.C. § 1447 (c) (West 2000). Plaintiffs also seek reasonable
attorneys' fees, pursuant to 28 U.S.C. § 1447 (c), for costs incurred
because of this motion to remand. Defendants oppose the motion to
remand. This Court referred the instant matter to the Honorable G. Donald
Haneke, U.S.M.J., for an appropriate Report and Recommendation.
Magistrate Judge Haneke issued a Report and Recommendation, pursuant to
L. Civ. R. 72.1(a)(2) and Fed. R. Civ. P. 72(b). In his Report and
Recommendation, Magistrate Judge Haneke recommended that this Court grant
Plaintiffs' motion, but deny an award of attorneys' fees. Defendants
objections to Magistrate Judge Haneke's Report and
A motion to remand, pursuant to 28 U.S.C. § 1447 (c), is a
dispositive motion. In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir.
1998). As such, Magistrate Judge Haneke's Report and Recommendation is
reviewed de novo. In re U.S. Healthcare, 159 F.3d at 145-56;
Temptations, Inc. v. Wager, 26 F. Supp.2d 740, 743 (D.N.J. 1998). For the
reasons set forth below, this Court does not adopt Magistrate Judge
Haneke's Report and Recommendation as the opinion of the Court. Further,
Plaintiffs motion to remand is DENIED.
Plaintiffs hired defendants, J.D. Carton & Son, Inc. ("Carton") and
Allied Van Lines ("Allied"), to transport their belongings from New
Jersey to Florida. Plaintiffs purchased an "Extra Protection Plan" from
Defendants.*fn1 Plaintiffs assert that goods were missing from the
shipment and that Defendants fraudulently inserted "X's" into certain
areas of the bills of lading, thereby falsely indicating Plaintiffs'
receipt and acceptance of their belongings when no such acceptance took
Plaintiffs filed a complaint against Defendants Carton and Allied on
May 22, 2000, seeking damages for breach of contract, common law fraud,
and fraud in violation of the New Jersey Consumer Fraud Act, N.J. STAT.
ANN. §§ 56:8-1 to 8-106 (West 2000), slander of credit, and punitive
damages. On July 18, 2000, Defendant Allied, in a petition to which
Defendant Carton consented, filed a notice of removal ("Notice") with the
United States District Court, District of New Jersey, alleging that
removal was appropriate because Plaintiffs' complaint arose under federal
law, pursuant to 28 U.S.C. § 1331.
Plaintiffs now assert that the Notice was defective for two reasons.
First, Plaintiffs explain that Defendant Carton was served on June 6,
2000, but at no time within thirty days thereafter did Defendant Carton
file a Notice. Therefore, Defendant Carton could not consent to Defendant
Allied removing to federal court. Second, Plaintiffs assert that
Defendants' Notice is invalid because none of Plaintiffs' allegations
"arise under" federal law, as that term is understood by statutory law.
Defendants respond that the Notice is valid because Defendant Allied
filed its Notice within 30 days of proper service upon Defendant Allied.
Allied further argues that the Notice is valid because Plaintiffs' claims
are completely preempted by the Carmack Amendment to the Interstate
Commerce Act, 49 U.S.C. § 14706 (West 2000).*fn2
I. The Process of Removal Pursuant to 28 U.S.C. § 1446
Pursuant to 28 U.S.C. § 1441 (a), "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." City of
Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163-64 (1997). A
defendant seeking removal of an action initiated in a
state court must
file a notice of removal with the district court within thirty days of
service of the complaint upon the defendant. 28 U.S.C. § 1446 (b);
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 352-53
(1999); Foster v. Mut. Fire, Marine & Inland Ins. Co., 986 F.2d 48, 53
(3d Cir. 1992).
If a claim is removed improperly, due to lack of subject matter
jurisdiction, the matter must be remanded to state court.
28 U.S.C. § 1447 (c); City of Chicago 522 U.S. at 163-64. Upon
issuing an order remanding a case due to lack of subject matter
jurisdiction, a district court may require payment of reasonable costs,
including attorneys' fees, incurred as a result of the removal.
28 U.S.C. § 1447 (c). A removing party bears the burden of
establishing that federal jurisdiction exists and that the case should
not be remanded. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d
Cir. 1990). Further, the removal statutes "are to be strictly construed
against removal and all doubts should be resolved in favor of remand."
In 1999, the Supreme Court clarified the time within which a Defendant
named in a state court action may seek removal to federal court. Murphy
Bros., 526 U.S. at 347. In Murphy Brothers, plaintiff filed suit against
defendant in state court. Three days later, plaintiff faxed a "courtesy
copy" of the file-stamped complaint to the defendant. Id. at 348.
Seventeen days later, plaintiff properly served defendant. Thirty days
after proper service, and forty-four days after receiving the courtesy
copy of the complaint, defendant removed the case to federal court. Id.
Plaintiff moved to remand the case to state court, asserting that
defendant's removal was untimely. Plaintiff argued that defendant's
thirty-day removal period commenced on the day that plaintiff faxed a
copy of the complaint to defendant. The district court denied plaintiffs
motion to remand and the Eleventh Circuit reversed. Michetti Pipe
Stringing, Inc. v. Murphy Bros., Inc., 125 F.3d 1396 (11th Cir. 1997).
The Supreme Court granted certiorari. 525 U.S. 960 (1998).
II. The Circuit Split on the Question of Removal with Multiple