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Brown v. Jersey City Parking Authority

April 28, 2009

RYAN BROWN, PLAINTIFF,
v.
JERSEY CITY PARKING AUTHORITY, CITY OF JERSEY CITY, RITA TAYLOR, JOHN LUIGI, SHARON HARRINGTON, SHEILA A. VENABLE, MAURICE GALLIPOLI, FERNANDO PICARIELLO, MARIA FIGUEROA, MARK D. RUSS, COUNTY OF HUDSON, STATE OF NEW JERSEY, DEFENDANTS.



The opinion of the court was delivered by: Brown, Chief Judge

MEMORANDUM OPINION

This matter comes before the Court upon pro se plaintiff Ryan Brown's ("Plaintiff") motion to remand ("Motion") and the motions to dismiss of the following defendants: (1) the State of New Jersey, The Hon. Sheila A. Venable, and the Hon. Maurice Gallipoli (the "State Defendants") (Docket Entry No. 16); (2) Fernando Picariello, Maria Figueroa, Mark D. Russ, and the Parking Authority for Jersey City (the "Parking Authority Defendants") (Docket Entry No. 17); (3) the City of Jersey City and John Luigi (the "Jersey City Defendants") (Docket Entry No. 26); and (4) Rita Taylor and Sharon Harrington (Docket Entry No. 42). The Court has reviewed the parties' submissions and decided the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will grant Plaintiff's Motion, rendering defendants' motions moot.

I. BACKGROUND

On January 9, 2008, plaintiff Ryan Brown ("Plaintiff") filed a complaint ("Complaint") under 42 U.S.C. § 1983 in New Jersey Superior Court, Ocean County. (Docket Entry No. 1, Ex. A.) Plaintiff alleged that he had been deprived of his civil rights under the Fourth, Fifth, and Fourteenth Amendments (Id., at 10), naming twelve defendants*fn1 the Parking Authority for Jersey City, the City of Jersey City, Rita Taylor, John Luigi, Sharon Harrington, the Honorable Sheila A. Venable, the Honorable Maurice Gallipoli, Fernando Picariello, Maria Figueroa, Mark D. Russ, the County of Hudson, and the State of New Jersey (collectively, "Defendants"). (Docket Entry No. 5, Caption.) The Honorable Sheila A. Venable, the Honorable Maurice Gallipoli and the County of Hudson were served with the Complaint and summons on January 15, 2008 (Docket Entries No. 4 at ¶2 and 37 at 8); John Luigi, Fernando Picariello, Mark D. Russ, Maria Figueroa, and the Parking Authority for Jersey City was served on January 17, 2008; Rita Taylor and Sharon Harrington were served on January 22, 2008; the State of New Jersey was served on January 28, 2008; and the City of Jersey City was served on January 31, 2008. (Docket Entry No. 37 at 8.)

On February 5, 2008, the Parking Authority Defendants filed a notice of removal in United States District Court for the District of New Jersey in Newark, New Jersey. (Docket Entry No. 6, App. B.) On February 13, 2008, the Jersey City Defendants filed a notice of removal in this Court. (Docket Entry No. 1.) Both sets of defendants petitioned to move the action to federal court on grounds that the Complaint invoked a federal question. (Docket Entries No. 1 and No. 6, App. B at ¶9.) On February 19, 2008, Plaintiff filed a motion to remand ("Motion to Remand") the case to state court, disputing the existence of a federal claim and citing defects in the removal procedure. (Docket Entry No. 6 at 6-11.) On March 3, 2008, the Parking Authority Defendants submitted a brief in opposition to the Motion to Remand. (Docket Entry No. 13.)

On March 5, 2008, the State Defendants filed a motion to dismiss Plaintiff's claims for failure to state a claim. (Docket Entry No. 16.) On that same day, the Parking Authority Defendants also filed a motion to dismiss. (Docket Entry No. 17.) On March 7, 2008, the Jersey City Defendants filed a motion to dismiss Plaintiff's claims. (Docket Entry No. 26.) In response, Plaintiff filed a brief opposing the three motions to dismiss. (Docket Entry No. 37.) On March 11, 2008, the State Defendants, in conjunction with defendants Rita Taylor and Sharon Harrington filed a response to the Motion to Remand, in which they asked the Court to rule on the State Defendants' motion to dismiss first, which they maintain "obviates the need to decide on Plaintiff's Motion to Remand." (Docket Entry No. 27.) On April 23, 2008, defendants Rita Taylor and Sharon Harrington also filed a motion of their own to dismiss Plaintiff's claims (Docket Entry No. 42), to which Plaintiff filed a response and opposing brief. (Docket Entries No. 44 and 45.)

II. DISCUSSION

Plaintiffalleges that Defendants have failed to satisfy the rule of unanimity during the removal process, and as such this case should be remanded. (Id. at 7-10.) The Parking Authority Defendants argue that remand is improper because: (1) all parties have consented to removal; (2) the Complaint invokes a federal claim, giving this Court jurisdiction; and (3) venue in Ocean County Superior Court violates New Jersey Court Rule 4:3-2(a)(2), which requires that for "actions against municipal corporations, counties, public agencies or officials," venue must be laid "in the county in which the cause of action arose." (Docket Entry No. 13 at 2, 9, 11.)

A. Standard

"A defendant or defendants desiring to remove any civil action . . . shall file . . . a notice of removal." 28 U.S.C. § 1446(a). It is a well established principle that removal requires unanimity among multiple defendants. Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985) The rule of unanimity, while not requiring every defendant to sign the actual notice of removal, generally requires every defendant served in the action to provide "some form of unambiguous written evidence of consent to the court in timely fashion." Michaels v. New Jersey, 955 F. Supp. 315, 321 (D.N.J. 1996) (emphasis in original). Additionally, "each defendant must join in the notice of removal or express its consent to removal within the thirty day period defined in [U.S.C. §] 1446(b)." Carter v. Ingersoll-Rand Co., No. 00-6438, 2001 U.S. Dist. LEXIS 2466, at *3-4 (E.D. Pa. Mar. 12, 2001).

28 U.S.C. § 1447(c) provides that a case may be remanded if there is either a defect in the removal procedure or an absence of subject matter jurisdiction. The failure of all defendants to join in the removal petition is a "defect in removal procedure within the meaning of § 1447(c)." Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995).

"The removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Abels v. State Farm Fire and Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985) (citing 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3642, at 149 (2d ed. 1985). The rule of unanimity promotes "the congressional purpose of giving deference to a plaintiff's choice of a state forum and of resolving doubts against removal and in favor of remand." McManus v. Glassman's Wynnefield Inc., 710 F. Supp. 1043, 1045 (E.D. Pa. 1989) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). "The Court of Appeals for the Third Circuit has held that the 'unanimity rule' may be disregarded where: (1) a non-joining defendant is an unknown or nominal party;*fn2 (2) a defendant has been fraudulently joined*fn3; or (3) a non-resident defendant has not been served at the time the removing defendants filed their petition." Michaels, 955 F. Supp. at 319 (citing Balazik, 44 F.3d at 213 n.4.)

B. Application

Plaintiff submits that Defendants' failure to properly join in the Notice of Removal constitutes a defect in the removal process, requiring the remand of this action to state court. (Docket Entries No. 5 at 8-10 and No. 6 at 7-8.) The Parking Authority Defendants submit that all parties have consented to removal. (Docket Entry No. 13 at 9-11.) State defendants Harrington, and Taylor have asked the Court to first rule on their motion to ...


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