United States District Court, D. New Jersey
June 7, 2005.
Ironworkers Local 45.
The opinion of the court was delivered by: RONALD HEDGES, Magistrate Judge
LETTER-OPINION AND ORDER ORIGINAL FILED WITH CLERK OF THE COURT
This matter comes before me on plaintiff's motion to remand
this civil action to the Superior Court of New Jersey, Law
Division, Essex County. This matter was referred to me by Judge
Martini. I have considered the papers submitted in support of and
in opposition to the motion. There was no oral argument. Rule 78.
This action was commenced on February 15, 2005, with the filing
of a Complaint in the Superior Court. Plaintiff Glenn Morris was employed in the
Ironworker's Apprenticeship Program, which is governed by the
District Council of Northern New Jersey Ironwork Training Program
("Program"). Defendants Ironworkers Local 45 ("Local 45")
represented plaintiff during his apprenticeship pursuant to a
collective bargaining agreement between Local 45 and the Program.
On August 8, 2003, plaintiff filed charges of race
discrimination, age discrimination, and retaliation against Local
45 stemming from his being laid off of a construction site on
January 25, 2003. After investigation by the Joint Apprenticeship
Committee of the Ironworkers District Council of Northern New
Jersey ("JAC"), it was determined that the claims lacked merit.
This information was conveyed to plaintiff in a July 10, 2003
letter. In a September 5, 2003 letter, the Program's coordinator,
Mr. Ronald Repmann, informed plaintiff that he had received
negative job evaluations. These negative evaluations were a
breach of his apprenticeship agreement and, as a result,
plaintiff was terminated from the program.
Plaintiff alleges that his termination is predicated on racial
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, and age discrimination in violation of the
Age Discrimination in Employment Act of 1967, as amended.
Defendants were served with the Complaint on April 12, 2005.
Defendants filed a Notice of Removal on April 28, 2005. On May 3,
2005, plaintiff filed a Motion to Remand, arguing that the Notice
of Removal was "tainted with controversy." Plaintiff's Brief in
Opposition at 2. Defendants filed an Amended Notice of Removal on
May 4, 2005, conceding their original notice contained
typographical errors. On May 19, 2005, plaintiff filed another
motion to remand, arguing that the Amended Notice of Removal was
procedurally defective. He also asked the Court to impose
Removal statutes should be strictly construed and any doubts
resolved in favor of remand. See Weinstein v. Paul Revere Ins.
Co., 15 F. Supp.2d 552, 555 (D.N.J. 1998). Only those actions
that could have originally been brought in federal court may be
removed. See 28 U.S.C. § 1441; Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). If it appears
at any time before final judgment that an action was not properly
removed, the federal court must remand it to the State court from
which the action was removed. See 28 U.S.C. § 1447©). The
burden of establishing the existence of subject matter
jurisdiction falls on the removing party. See Boyer v. Snap-on
Tool Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied,
498 U.S. 1085 (1991).
In Caterpillar v. Williams, 482 U.S. 386 (1987), the Supreme
Court discussed removal under § 1441(a):
Only state-court actions that originally could have
been filed in federal court may be removed to federal
court by the defendant. Absent diversity of
citizenship, federal question jurisdiction is
required. The presence or absence of federal question
jurisdiction is governed by the `well-pleaded
complaint rule,' which provided that federal
jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly
pleaded complaint * * *. The Rule makes the plaintiff
the master of the claim; he or she may avoid federal
jurisdiction by exclusive reliance on state law.
[482 U.S. at 392 (footnotes and citations omitted)].
There is federal question jurisdiction in this action. The
Complaint asserts violations of both Title VII and the ADEA.
Thus, as long as the Notice of Removal was timely, removal was
proper under 28 U.S.C. § 1441.
Under 28 U.S.C. § 1446, "[t]he notice of removal of a civil
action or proceeding shall be filed within thirty days after the
receipt by the defendant, through service or otherwise, of a copy
of the initial pleading setting forth the claim for relief."
Here, the Notice of Removal was clearly filed within the thirty-day period of § 1446(b). The Notice also
explicitly stated that the ground for removal was federal
question jurisdiction. The plaintiff's motion to remand, filed in
accordance with 28 U.S.C. § 1447©), highlighted typographical
errors in the Notice. Defendants then filed the Amended Notice of
Removal on May 4, 2005. This Amended Notice was still within the
original thirty-day period of § 1446(b). Contrary to plaintiff's
argument, such an amendment is freely allowed by § 1446(b) prior
to the expiration of the thirty-day period. See 14B Wright,
Miller & Cooper, Federal Practice and Procedure, § 3733 at 357
(3d ed. 1998); Richardson v. United Steelworkers of Am.,
864 F.2d 1162, 1165 (5th Cir. 1989), cert. denied 495 U.S. 946
Plaintiff argues that the typographical errors render the
Notice ineffective. However, the typographical errors do not
require remand. Technical defects within a removal petition are
not fatal. See Michaels v. N.J., 955 F.Supp. 315, 321-22
(D.N.J. 1996). Such defects are not jurisdictional in nature and
do not affect the ability of removal under 28 U.S.C. § 1441.
See Michaels, 955 F.Supp. at 321. Subject matter jurisdiction
exists. To allow typographical errors to force a remand would
"punish [defendants] for what is, after all, a technicality that
does not go to the heart of jurisdiction." Shaw v. Dow Brands,
Inc., 994 F.2d 364, 369 (7th Cir. 1993). Such a harsh
penalty is not warranted.
Plaintiff has also asked the Court to impose appropriate
sanctions because of the typographical errors. Sanctions for
misrepresentations are governed by Rule 11. It states in
(b) By presenting to the court (. . .) a pleading,
written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of
the person's knowledge, information, and belief
formed after an inquiry reasonable under the
circumstances, (1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension,
modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions
have evidentiary support or, if specially so
identified, are likely to have evidentiary support
after a reasonable opportunity for further
investigation or discovery[.]
The Amended Notice of Removal does not violate Rule 11(b).
Without any violative conduct under (b), sanctions would be
improper. See Rule 11©). Even assuming there was conduct that
violated Rule 11(b), sanctions would remain inappropriate. The
"central purpose of Rule 11 is to deter baseless filings in
district court." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384
393 (1990). Sanctions should only be awarded in the "`exceptional
circumstance', where a claim or motion is patently unmeritorious
or frivolous." Doering v. Union County Bd. of Chosen
Freeholders, 857 F.2d 191
, 194 (3d Cir. 1988). There are no such
For the reasons set forth above, plaintiff's motion for remand
and sanctions is DENIED.
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