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August 15, 2005.


The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District


This matter comes before the Court on Plaintiffs', Valeria Brown and Johnathon Ehnat, motion to dismiss Defendant Catholic Community Services Third-Party Complaint, to remand the instant action to the Superior Court of New Jersey and for the award of Plaintiffs' counsel fees and costs.*fn1


  On June 6, 2003, Valeria Brown and her husband, Johnathon Ehnat, filed a Complaint in the Superior Court of New Jersey, Law Division, Essex County. The Complaint named Catholic Community Services, a New Jersey corporation, and the Archdiocese of Newark as Defendants. Plaintiffs allege that Defendant Catholic Community Services ("CCS") operates, owns, leases space and/or maintains a business located at 494 Broad Street in Newark, NJ and Defendant Archdiocese of Newark is the controlling entity of Defendant CCS. Compl. ¶¶ 2-3. The Complaint alleges that, due to Defendants' negligence, on August 10, 2001, Plaintiff Brown sustained injuries when a door to the ladies' room at her place of employment became unhinged and fell on her head while she was using the facilities in the restroom. Compl. ¶¶ 6-7. At the time the injury was sustained, Plaintiff Valeria Brown was an employee of the United States Postal Service ("USPS"); the postal facility where Brown worked was leased by third-party defendant USPS from Defendants CCS and the Archdiocese of Newark. Plaintiffs claim that Defendants CCS and the Archdiocese of Newark "were negligent and careless in failing to inspect, maintain and keep safe the premises wherein the accident occurred, thereby allowing a dangerous, hazardous and defective condition to exist on said premises, and, as a result, Plaintiff Valeria Brown was struck in and about her body by the unhinged door as aforesaid and sustained severe and permanent bodily injuries." Compl. ¶ 7. Plaintiffs allege that as a result of the accident, Brown is permanently and totally disabled, is no longer an active postal employee and has been placed on permanent disability by the USPS. Pl. Br. at 2.

  On July 15, 2003, Defendants CCS and the Archdiocese of Newark filed an Answer and on September 24, 2004, by Order of the Superior Court of New Jersey Law Division, Essex County, Defendants were granted permission to join the United States of America and the United States Postal Service as third-party defendants. Pl. Br. at 1. Thereafter, on October 29, 2004, Defendants filed a Third-Party Complaint naming the United States of America and the USPS as third-party defendants. The ThirdP-arty Complaint alleged that under the pertinent portions of Exhibit D to the lease executed between CCS and the USPS, the Postal Service agreed as follows:
Indemnity. The Postal Service agrees to save harmless and indemnify the Lessor from and against every claim, loss, damage, actions, causes of actions, expense and/or liability resulting from the use of said Premises by the Postal Service and whenever such claim, loss, damage, actions, cause of actions, expense and/or liability arises from the negligent or wrongful act or omission by a Postal employee while acting within the scope of his or her employment, under circumstances where the Postal Service, if a private person, would be liable in accordance with the law of the place where the negligent or wrongful act or omission occurred.
Indemnification Clause, Attached to Pl. Appendix in Support of Remand, Ex. H-12.

  Defendants allege that its engineering expert, upon inspection of the defective ladies' room stall door, concluded "that the door fell because the pin in the top hinge assembly had been intentionally removed, and not because of any failure of Defendants to maintain the door or because of any structural defect of the door or hinge." Third-Party Compl. ¶ 5, Atached to Pl. Appendix, Ex. D. Defendants also submit that the Postal Service equipped the lock on the restroom door with a three digit combination lock and thus only Postal employees had access to the third floor women's restroom where the accident occurred. Id. ¶ 6. Furthermore, Defendants allege that at her deposition, Plaintiff Brown testified that prior to the accident, a co-worker had threatened her and caused her to suffer psychological injuries for which she underwent treatment. Compl. ¶ 7. Defendants submit that they are entitled to contractual indemnification from the Postal Service under the lease. Id. ¶ 8.

  On February 14 and 17, 2005 respectively, Third-Party Defendants, the United States of America and the USPS, filed an Answer and Notice of Removal pursuant to Title 28 U.S.C. 1346(a)(2), 1441 and 1442(a)(1). Plaintiffs have filed the instant motion to dismiss Defendants' Third-Party Complaint and remand the action to the Superior Court of New Jersey.


  I. Standard of Law Applied to Motions to Remand for Lack of Subject Matter Jurisdiction Pursuant to 28 U.S.C. § 1447

  A civil action brought in state court may be removed by the defendant to the federal district court in the district where such action is pending if the district court would have original jurisdiction over the matter. 28 U.S.C. § 1441(a); U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002) (citing Franchise Tax Bd. of Cal. v. Const. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 7-8 (1983)). Where the parties are not diverse, removal is appropriate only if the case falls within the district court's original "federal question" jurisdiction, which includes "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §§ 1331, 1441(b); U.S. Express Lines, 281 F.2d at 389 (citing Franchise Tax Bd., 463 U.S. at 8).

  In determining whether a case arises under federal law, courts are instructed to look to the plaintiff's "well-pleaded complaint." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). It is not enough that a federal question is or may be raised as a defense. Id. "`The controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal'." U.S. Express Lines, 281 F.3d at 389 (quoting Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 113 (1936)). "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc., et al. v. Williams, 482 U.S. 386, 392 (1987).

  The state suit need not invoke a federal law in order to "arise under" it for removal purposes. It is sufficient that the merits of the litigation turn on a substantial federal issue that is "an element, and an essential one, of the plaintiff's cause of action." Gully, 299 U.S. at 112. The controversy must be "genuine and present . . . not merely . . . conjectural." Id. at 113. In short, the federal law "must be in the forefront of the case and not collateral, peripheral, or remote." Merrell Dow, 478 U.S. at 813 n. 11; see also United Jersey Banks v. Parell, 783 F.2d 360, 367 (3d Cir. 1986) (finding no federal question existed because right to relief under state law did not require resolution of a substantial question of federal law). It need not, however, be a situation in which federal law completely preempts state law. U.S. Express Lines, 281 F.3d at 389 (citing Goepel v. Nat'l Postal Mail Handlers Union, 36 F.3d 306 (3d Cir. 1994) (discussing "complete preemption" doctrine).

  II. The Motion for Remand is Granted

  Plaintiffs argue that this Court lacks subject matter jurisdiction over the Third-Party Complaint because Defendants claim against the USPS and the United States of America is based upon the indemnification clause of the lease agreement. Section A.13 of the General Conditions to the USPS Lease states that the contract between the USPS and Defendant CCS is "subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613)." See Lease, Attached to Pl. Appendix, Ex. H-5. It further states that "except as provided in the Act, all disputes arising under or relating to this contract must be resolved under this clause." Id. The Contract Disputes Act ("CDA") states, inter alia,
a contractor may bring an action ...

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