The opinion of the court was delivered by: Hayden, District Judge.
This matter comes before the Court on the objections of Carmine
Fornaro, filed in response to the Report and Recommendation (R & R)
of Magistrate Judge Hedges dated June 13, 2002. On April 29, 2002,
Carmine Fornaro removed the lawsuit filed against him by State Farm
Indemnity. et al., Civil Action No. 02-2019, from the New Jersey Superior
Court Law Division to this Court. On the same date, Fornaro and Maria
Fornaro also removed a suit filed against them in state court by Monmouth
Ocean Collection Services, Inc., Civil Action No. 02-2020.
This Court's review of the R & R and the objections to it is
governed by Local Civil Rule 72.1(a)(2) and 72.1(c)(2), which provides
that the Court "shall make a de novo determination of those portions [of
the R & R] to which objection is made and may accept, reject or
modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. The Judge, however, need not normally conduct a new
hearing and may consider the record developed before the Magistrate
Judge, making his or her own determination on the basis of that record."
L.Civ.R. 72.1(c)(2); Zinberg v. Washington Bancorp., Inc., 138 F.R.D.
397, 401 (D.N.J. 1990) (holding that the court makes a de novo review of
the parts of the report to which the parties object); see also
MAGI-Corp. v. Kinetic Presentations, Inc., 718 F. Supp. 334, 335 (D.N.J.
In a well reasoned opinion, Judge Hedges determined that an examination
of the two state complaints revealed no diversity jurisdiction, and that
as a result, removal must be based on a federal question. (R & R at
11.) Judge Hedges then determined that there was neither a federal
question presented on the face of the Complaint, nor was there
Congressional preemption based on the Federal Employees Health Benefits
Act of any claim raised in the Complaint. (Id. at 11-12). He also found
that the presence of OPM as a third-party defendant does not establish
subject matter jurisdiction and does not give rise to a removable federal
question. Finally, Judge Hedges found that defendants' reliance on the
entire controversy doctrine for the existence of subject matter
jurisdiction is misplaced. Significantly, he characterized the thrust of
the removal as follows:
In his objections, Fornaro cites to the United States Constitution,
multiple sections of the United States Code, the Code of Federal
Regulations, the Federal Rules of Civil Procedure, "Federal Contracts,"
and Supreme Court and state court precedents.
It is clear that Judge Hedges's "take" on the removal is accurate:
defendants want this Court to undo actions of the state courts based on
principles that simply do not confer requisite jurisdiction.
The Court adopts Judge Hedges's findings that this Court does not have
diversity jurisdiction, federal question jurisdiction or subject matter
jurisdiction over these consolidated matters, and accordingly accepts
Judge Hedges's recommendation that Civil Action No. 02-2019 be remanded
to the Superior Court of New Jersey, Law Division, Morris County, and
Civil Action No. 02-2020 be remanded to the Superior Court of New
Jersey, Law Division, Special Civil Part, Morris County. Both Civil
Action Nos. 02-2019 and 02-2020 are dismissed.
Order Amending Order of Dismissal
This Court having entered an Order dated August 16, 2002, that in part
dismissed the Complaints bearing Civil Action No. 02-2019 and Civil
Action No. 02-2020; said dismissal having been entered in error; and good
cause appearing, it is on this 26th day of August, 2002 hereby
ORDERED that said complaints are not dismissed and are, as ordered
previously, remanded to the Superior Court of New Jersey.
REPORT AND RECOMMENDATION
These two civil actions were removed from the Superior Court of New
Jersey on April 29, 2002. On May 1, 2002, I issued a Letter-Order and
Order to Show Cause. I consolidated both civil actions for all purposes.
I also directed the removing parties to show cause why both civil actions
should not be remanded to the Superior Court of New Jersey.
I entertained oral argument on May 28, 2002. I have also considered the
letter brief of defendant Carmine Fornaro, Jr. ("Fornaro"), submitted on
May 7, 2002, and his "Outline for Hearing Presentation" submitted on May
28, 2002 ("Outline").*fn1
Throughout this Report and Recommendation two considerations should be
borne in mind. First, federal courts have a duty to "examine their
subject matter jurisdiction at all stages of the litigation sua sponte if
the parties fail to raise the issue. That obligation extends to removal
cases, as well as to those originally filed in the district courts."
U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388-89 (3d
Cir. 2002). Second, these civil actions have been consolidated.
"Consolidated cases typically are heard together; however, they are not
necessarily merged forever and for all purposes." Bradgate Associates,
Inc. v. Fellows, Read & Associates, Inc., 999 F.2d 745, 750 (3d Cir.
1993). The consolidated civil actions sub judice should be considered
separately for jurisdictional purposes. See Bradgate Associates, Inc.,
999 F.2d at 750-51.
There may be some confusion in the captions of these civil actions. My
intent here is to clarify the identity of the parties.
In Civil Action No. 02-2019, a Verified Complaint was filed with the
Superior Court of New Jersey, Law Division, Morris County, on October
15, 2001, by plaintiff State Farm Indemnity Company ("State Farm"). The
only named defendant is Fornaro. Appendix B, Petition for Removal.
On March 11, 2002, a Final Judgment on Order to Show Cause was filed
with Judge Christine L. Miniman (attached). At the time of the filing of
this judgment, the only parties were State Farm and Fornaro.
On April 15, 2002, Fornaro filed a Notice of Motion with the Morris
County Clerk. Exhibit B, May 7th Letter Brief. Among other things,
Fornaro sought to add the United States Office of Personnel Management
("OPM") and Horizon Blue Cross and Blue Shield of New Jersey ("Horizon")
as third-party defendants. The motion was never ruled on by the Superior
Plaintiffs April 15th motion also bears the caption of a proceeding
before the American Arbitration Association which Fornaro commenced and
which was the subject of the Verified Complaint filed by State Farm. The
March 11th judgment of Judge Miniman permanently enjoined Fornaro "from
participating in or requesting arbitration of any PIP claims. * * *."
Thus, as of the date of the removal of Civil Action No. 02-2019, the only
parties were State Farm and Fornaro.
Civil Action No. 02-2020 stands in a different procedural posture. The
plaintiff, Monmouth Ocean Collection Service, Inc. ("Monmouth"), brought
suit against Fornaro and his wife, Maria Fornaro, in the Superior Court
of New Jersey, Law Division, Special Civil Part, Morris County. I cannot
ascertain the date of filing of the Complaint from the removal papers.
However, Fornaro and his wife allege that they were served with a summons
and a copy of the Complaint on or about February 22, 2002. Paragraph 2,
Petition for Removal.
The Complaint contains four counts and seeks collection of a sum
allegedly due from Fornaro and his wife to Monmouth as the assignee of
Vincent Vicci, Jr., D.O. The removal papers do not include the Answer
presumably filed by Fornaro and his wife. However, the pleadings indicate
that Fornaro and his wife filed a Third-Party Complaint. The third-party
defendants identified in the papers are State Farm, OPM and Horizon.
Proceedings in Special Civil Part are governed by New Jersey Civil
Practice Rule ("R.") 6:1-1 et seq. R. 6:3-1 makes applicable in Special
Civil Part the Superior Court rules governing, among other things,
pleadings. See Comment 1 to R. 6:3-1, Pressler, Current N.J. Court Rules
at 2071 (2002). R. 4:8 governs third-party practice. R. 4:8-1(a) provides
I will assume for the purpose of this Report and Recommendation that
Fornaro and his wife timely filed and served the Third-Party Complaint
against State Farm, OPM and Horizon. This would be consistent with a
motion made by Horizon on or about April 11, 2002, to dismiss the
Third-Party Complaint as ...