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Bioway Corporation Pte.Ltd, Honorable Joseph E. Irenas v. Opinion Bioway America

December 6, 2010

BIOWAY CORPORATION PTE.LTD, HONORABLE JOSEPH E. IRENAS PLAINTIFF,
v.
OPINION BIOWAY AMERICA, INC., JOHAN VAN DIJK AND JOSEPH MURRAY, DEFENDANTS. BIOWAY AMERICA, INC., THIRD-PARTY PLAINTIFF,
v.
BONNO KOERS AND HAWAIIAN DREDGING CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Joseph E. Irenas, S.U.S.D.J.

APPEARANCE: STARK & STARK, PC By: Kevin M. Hart P.O. Box 5315 Princeton, NJ 08543

Counsel for Plaintiff Bioway Corporation PTE.LTD JERRY & JERRY, LLP By: Harold A. Jerry, III 101 Poor Farm Road P.O. Box 310 Princeton, NJ 08542-0310

Counsel for Defendants Johan Van Dijk and Joseph Murray and Defendant and Third-Party Plaintiff Bioway America, Inc.

COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A. By: Michael R. Yellin, Esq. 25 Main Street P.O. Box 800 Hackensack, NJ 07602-0800

Counsel for Third-Party Defendant Hawaiian Dredging Construction Company.

IRENAS, Senior District Judge:

This matter comes before the Court on the Notice of Removal of Third-Party Defendant Hawaiian Dredging Construction Company ("HDCC"). This Court issued an Order to Show Cause on November 15, 2010, in order to determine if the Court had subject matter jurisdiction over the present matter. For the reasons set forth below, this Court finds that removal was improper because this Court lacks subject matter jurisdiction over the action.

I.

HDCC is the general contractor for a construction project in Hawaii. Defendant and Third-Party Plaintiff Bioway America, Inc. ("Bioway America") provided HDCC a quote for air purification work to be done on the construction project. Although HDCC accepted Bioway America's quote, Bioway America could not perform the work for HDCC. Instead, Plaintiff Bioway Corporation PTE.LTD ("Bioway Singapore") entered into a contract with HDCC to perform the work for which Bioway America had provided the quote. In connection with this arrangement, Bioway America and Bioway Singapore entered into an agreement pursuant to which Bioway Singapore would compensate Bioway America for procuring the contract.*fn1

Bioway Singapore initiated this case in New Jersey Superior Court. In its complaint (the "Original Complaint"), Bioway Singapore sued Bioway America and Defendants Johan Van Dijk and Joseph Murray for injunctive relief and money damages. The Original Complaint alleges that the Defendants attempted to hinder Bioway Singapore's completion of the project by making false, fraudulent and defamatory statements. On June 10, 2010, the Defendants filed a Notice of Removal of the Original Complaint in this Court. This Court found removal improper for lack of subject matter jurisdiction and remanded the Original Complaint to New Jersey Superior Court.

On September 2, 2010, Defendants Bioway America, Van Dijk and Murray filed a third-party complaint (the "Third-Party Complaint") in New Jersey Superior Court against HDCC and Third-Party Defendant Bonno Koers, alleging that HDCC failed to make payments allegedly due to Bioway America in relation to the project and that Koers interfered with Bioway America's contractual rights.*fn2

HDCC filed the Notice of Removal with this Court on October 26, 2010. This Court issued the Order to Show Cause on November 15, 2010.

II.

The question before this Court is whether, and if so, under what circumstances, a third-party defendant such as HDCC may remove a case to federal court.*fn3 This issue has been much analyzed. Judge Debevoise, in Patient Care, Inc. v. Freeman, 755 F. Supp. 644 (D.N.J. 1991), presented a particularly ...


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