UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
June 23, 2009
CARMEN J. ROMANELLI, JR., PLAINTIFF,
PATHMARK STORES, INC. AND INTERNATIONAL FOOD WORKERS UNION DEFENDANTS.
The opinion of the court was delivered by: Irenas, Senior District Judge
MEMORANDUM ORDER DISCHARGING ORDER TO SHOW CAUSE (Docket No. 3)
This matter having appeared before the Court upon Defendant Pathmark Stores, Inc.'s Notice of Removal; the Court having issued an Order to Show Cause why this case should not be remanded; and having reviewed Pathmark's submission in response to the Order to Show Cause, and it appearing that:
1. Plaintiff Carmen J. Romanelli, Jr. filed the instant suit in the Superior Court of New Jersey, Law Division, Atlantic County, (docket ATL-L-00377908) against Defendants Pathmark Stores, Inc. ("Pathmark") and International Food Workers Union.
2. Pathmark filed a Notice of Removal to this Court on May 20, 2009. (Dkt. No. 1)
3. Pursuant to 28 U.S.C. § 1446(a), "[a] defendant or defendants desiring to remove any civil action . . . shall file . . . . a notice of removal . . . containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Although the statute refers to "'defendant or defendants,' it is well established that removal generally requires unanimity among the defendants." Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) (citing Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 247 (1900)).
4. Pathmark's Notice of Removal did not indicate that Defendant International Food Workers Union joined or otherwise consented to Pathmark's Notice of Removal. Nor did the notice identify the applicability of any exception to the rule requiring unanimity. For those reasons, this Court issued an Order to Show Cause why this case should not be remanded to the Superior Court of New Jersey, Law Division. (Dkt. No. 3)
5. The Order to Show Cause directed Pathmark to file any responsive papers with the Court by June 9, 2009. Pathmark timely filed a response on that date. (Dkt. No. 6)
6. The Order to Show Cause directed Plaintiff to file any responsive papers with the Court by June 19, 2009. Plaintiff has not filed a response.
7. According to Pathmark's responsive papers, the consent of Defendant International Food Workers Union was not required for removal because that defendant was never served with process in this matter.*fn1 Moreover, documentation provided by Pathmark indicates that Judge Nelson C. Johnson of the Superior Court of New Jersey dismissed International Food Workers Union as a defendant in this matter on May 21, 2009, for lack of prosecution.*fn2 (See Pathmark Br. (Ex. C)--- Order of Hon. Nelson C. Johnson)
8. As Pathmark correctly notes, only all served defendants must join in a notice of removal. N.Y. Reg'l Rail Corp. v. Bridges, No. 06-0044, 2006 WL 1722631, at *3 (D.N.J. Jun. 20, 2006). Plaintiff has not responded to the Order to Show Cause, and there is no indication before the Court that Defendant International Food Workers Union was ever served with process in this matter. Thus, removal of this matter by Pathmark was proper.
And for good cause shown;
IT IS on this 23rd day of June, 2009,
1. The Order to Show Cause (Dkt. No. 3) is hereby DISCHARGED.
2. Defendant International Food Workers Union is hereby TERMINATED as a defendant in this matter.
JOSEPH E. IRENAS, S.U.S.D.J.