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Abulkhair v. Liberty Mutual Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 24, 2010

ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6482-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 26, 2010

Before Judges Carchman and Messano.

Plaintiff Assem A. Abulkhair appeals from an order of the Law Division of January 22, 2010, granting summary judgment and dismissing his complaint. The issue presented is whether the Superior Court had jurisdiction to enter such an order after the action had been removed to the Federal Court pursuant to 28 U.S.C.A. § 1441. We answer that question in the negative and reverse and remand.

The facts are simply stated and are not in significant dispute. Plaintiff filed an underinsured motorist action against defendant Liberty Mutual Insurance Company in August 2007 related to an accident that occurred in October 1999. On December 16, 2009, defendant moved for summary judgment. In response, on December 28, 2009, plaintiff moved to remove the action to the federal court.*fn1 Notice of the removal was appropriately filed with the Law Division. 28 U.S.C.A. § 1446(d). After the case had been removed and before any action was taken in the federal court, the Law Division judge entered an order on January 22, 2010, granting summary judgment and dismissing the complaint.

On February 8, 2010, the federal judge dismissed the complaint in the federal court, Abulkhair v. Liberty Mutual Ins. Co., No. 09-6489 (D.N.J. Feb. 8, 2010), concluding that the removal notice failed to comply "with almost every aspect of the removal rules"; however, the United States Court of Appeals for the Third Circuit, while affirming in part, concluded that the appropriate remedy was not dismissal but a remand to the Superior Court. Abulkhair v. Liberty Mutual Ins. Co., No. 10-1580 (3d Cir. May 12, 2010). See also Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 213 (3d Cir. 1997); 28 U.S.C.A. § 1447(c). By order of May 13, 2010, the district judge entered an order of remand.

In the interim, plaintiff filed a notice of appeal from the January 22, 2010 order. On appeal, he asserts that since the case had been removed, the Superior Court did not have jurisdiction to enter the order.

The issue is resolved by reference to the relevant statute.

28 U.S.C.A. § 1446(d) provides in relevant part that Promptly after the filing of such notice of removal of a civil action, the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

[(Emphasis added).]

Again, we need not consider whether the removal was proper or whether plaintiff even had standing to remove the action as that determination was made, appropriately, by the District Court. We also need not address defendant's assertion that the Law Division order was properly entered because nothing offered by plaintiff challenged that order. In essence, defendant is asserting a "futility" argument that was previously rejected in Bromwell. Bromwell, supra, 115 F.3d at 214.

In sum, the January 22, 2010 order entered by the Law Division was entered when that court was devoid of jurisdiction. The appropriate remedy now is a remand without prejudice to defendant's right to refile his motion for summary judgment.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.


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