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Lee v. Genuardi's Family Markets

July 19, 2010


The opinion of the court was delivered by: Irenas, Senior District Judge


Before the Court is Plaintiff Kay C. Lee's ("Ms. Lee") Motion to Remand this case to the Superior Court of New Jersey. Ms. Lee argues that Defendants Genuardi's Family Markets, L.P., and Safeway, Inc., ("Safeway") filed the notice of removal after the thirty day statutory deadline and that removal was procedurally defective. Brief in Support of Motion to Remand at 2 (hereinafter Pl. Br.). Safeway counters that the initial service of process by certified mail upon an employee at one of its stores was improper under New Jersey law and therefore did not trigger the thirty day removal clock. Brief in Opposition to Plaintiff's Remand Motion at 4 (hereinafter Def. Br.). Safeway asserts that its notice of removal was timely, as measured by subsequent service of process upon its principal place of business, and that there is no grounds for remand. Id.

The issue raised by the motion is whether service on a Safeway store employee by mail was proper under New Jersey law. The Court holds that it was not and that the thirty day removal clock therefore did not begin until subsequent personal service upon Safeway's principal place of business. Since Safeway's notice of removal was timely as measured by the subsequent personal service, the Court will deny the motion to remand.


Ms. Lee filed a complaint in the Superior Court of New Jersey on February 3, 2010, alleging that Safeway negligently caused her to slip, fall and sustain personal injuries at its store on King's Highway in Cherry Hill, New Jersey (the "Store"). Ms. Lee sent the complaint along with a summons by certified and first class mail to the Store on February 16, 2010. Julie Ritt, a Store employee, signed the certified mail receipt on February 18, 2010. Safeway was also served with process at its principal place of business in California on March 25, 2010. Safeway filed a notice of removal on March 31, 2010, and filed an answer in this Court on April 7, 2010. Ms. Lee filed the instant motion to remand on April 16, 2010.


A district court may only grant a motion to remand for the reasons authorized by 28 U.S.C. § 1447(c): lack of subject matter jurisdiction or defective removal procedures. PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). There is no dispute over subject matter jurisdiction in this case.*fn1 With regard to removal procedure, the notice of removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." 28 U.S.C. § 1446(b). The thirty day removal deadline under § 1446(b) is not triggered by "mere receipt of the complaint," but only by "formal service."*fn2 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348 (1999). The Supreme Court has made clear that the "'service or otherwise' language [in § 1446(b)] was not intended to abrogate the service requirement." Id. at 355. The Court reasoned that "[s]ervice of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant." Id. at 350. In opposing a motion to remand, the defendant bears the burden of demonstrating that removal was proper. Granovsky v. Pfizer, Inc., 631 F.Supp.2d 554, 558-59 (D.N.J. 2009).


Ms. Lee contends that she properly served Safeway at the Store by certified mail, as evidenced by the receipt signed by Store employee Julie Ritt. The Federal Rules of Civil Procedure set forth two ways for properly serving a corporation in a judicial district of the United States. First, Federal Rule 4(h)(1)(B) allows for "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." However, Federal Rule 4(h)(1)(B) does not apply to this case, because it "clearly requires personal delivery" and does not recognize delivery by certified mail. Mettle v. First Union Nat. Bank, 279 F.Supp.2d 598, 602 (D.N.J. 2003); Signs by Tomorrow-USA, Inc. v. G.W. Engel Co., No. 05-4353, 2006 WL 2224416, at *3 (D.N.J. Aug. 1, 2006).

Second, Federal Rule 4(h)(1)(A) allows plaintiffs to follow state law "for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Since Federal Rule 4(h)(1)(B) does not apply, Ms. Lee's motion to remand turns on whether service on Julie Ritt was proper under Rule 4:4 of the New Jersey Rules of Court.

New Jersey Rule 4:4-4(a) is the "primary method" of serving "a defendant in this State." However, service on Julie Ritt was not proper under Rule 4:4-4(a), because that rule requires personal service. Mettle, 279 F.Supp.2d at 602; Signs by Tomorrow, 2006 WL 2224416 at *3. Rule 4:4-4(a) does allow service by certified mail pursuant to Rule 4:4-3, but only "if personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service." Ms. Lee has presented no evidence of a failed attempt at personal service and therefore cannot rely on Rule 4:4-4(a).*fn3

New Jersey Rule 4:4-4(b), the state's long-arm statute, is not applicable to this case either, because it "provide[s] for service upon a corporation outside of the state by mail." Mettle, 279 F.Supp.2d at 603. Safeway was served by mail at the Store in New Jersey. In addition, Ms. Lee did not provide the affidavit required under Rule 4:4-4(b) averring "that despite diligent effort and inquiry personal service cannot be made in accordance with paragraph (a) of this rule."*fn4

Ms. Lee's motion to remand rests on the contention that service on Julie Ritt by mail was proper under New Jersey Rule 4:4-4(c). Rule 4:4-4(c) provides for "Optional Mailed Service" "in lieu of personal service" "[w]here personal service is required to be made pursuant to paragraph (a)." Unlike Rules 4:4-4(a) and (b), Rule 4:4-4(c) does not require an attempt at personal service. Service under Rule 4:4-4(c) is effective "only if the defendant answers the complaint or otherwise appears in response thereto... within 60 days following mailed service." Safeway contends that Rule 4:4-4(c) does not apply, because it did not file an answer until after it was personally served in California. Def. Br. at 4. It is not clear how Safeway reached that conclusion.*fn5 Because Safeway answered within sixty days, Rule 4:4-4(c) does apply.

Safeway also asserts that Rule 4:4-4(c) does not apply to foreign corporations. Def. Br. at 4. It is true that Rule 4:4-4(c) would not apply to service outside of New Jersey on a non-resident defendant.*fn6 Rule 4:4-4(c) is an alternative to Rule 4:4-4(a), which applies to "defendant[s] in this State."*fn7 However, the case law makes clear that Rule 4:4-4(c) does apply to both foreign and domestic corporations present in New Jersey. One court recently upheld service under Rule 4:4-4(c) upon a British firm with substantial business operations in New Jersey by a New Jersey resident and long-time employee of that company. Zacharias v. Whatman, 345 N.J. Super. 218 (App. Div. 2001). Another court similarly upheld service under Rule 4:4-4(c) upon Pfizer, a non-resident corporation, by an employee that had ...

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