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Sigfredo Alicea v. Outback Steakhouse

May 3, 2011

SIGFREDO ALICEA PLAINTIFF(S),
v.
OUTBACK STEAKHOUSE, ET AL. DEFENDANT(S).



The opinion of the court was delivered by: Hon. Claire C. Cecchi United States Magistrate Judge

REPORT AND RECOMMENDATION

This matter comes before the Court on the motion of Plaintiff Sigfredo Alicea to remand this action to the Superior Court of New Jersey (CM/ECF Docket Entry No. 9.) The Court has reviewed the submissions in support of and in opposition to the motion. This Report and Recommendation is rendered pursuant to 28 U.S.C. §636(b)(1)(B). No oral argument was heard. Fed. R. Civ. P. 78. For the reasons expressed below, the Undersigned respectfully recommends that Plaintiff's motion to remand be granted.

BACKGROUND

On or about June 23, 2010, Plaintiff filed a Complaint in the Superior Court of New Jersey, Passaic County, against Defendants Outback Steakhouse, OSI Restaurant Partners, LLC, OS Restaurant Services, Inc., Regan Urinarte, Duff Regan and Arnette Edwards. In his Complaint, Plaintiff asserts that Defendants violated the New Jersey Law Against Discrimination, N.J.S.A 10:5-1 et. seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

On or about July 13, 2010, Plaintiff's counsel sent, via regular and certified mail, a copy of the Summons and Complaint to the home office of Defendants' Outback Steakhouse, OSI Restaurant Partners, LLC, and OS Restaurant Services, Inc. (Ex. 2*fn1 to Cert. of Santos A. Perez, Esq. ("Perez Cert.")). Plaintiff did not attempt to personally serve Defendants prior to that mailing. (Ex. 3-4 to Perez Cert.) On or about August 16, 2010, Defendants' counsel advised Plaintiff's counsel that service via certified mail was improper pursuant to New Jersey Court Rule 4:4-3(a), and inquired whether Plaintiff intended to request a waiver of formal service. (Ex. 3 to Perez Cert.) On or about August 16, 2010, Plaintiff's counsel acknowledged that service by mail was improper, and asked for a waiver of service. (Ex. 4 to Perez Cert.) By letter dated August 24, 2010, Defendants' counsel formally waived formal service of process on behalf of Defendants Outback Steakhouse, OSI Restaurant Partners, LLC, OS Restaurant Services, Inc., and Duff Regan (hereinafter, "Defendants"), and accepted service of the Complaint. (Notice of Removal ¶ 1; Ex. 5 to Perez Cert.)*fn2

On September 13, 2010, Defendants removed the action to this Court. In their Notice of Removal, Defendants state that this Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331, by virtue of the Title VII claims asserted in Plaintiff's Complaint. (Notice of Removal ¶ 3.) On September 21, 2010, after the case was removed, Plaintiff filed an Amended Complaint. Plaintiff's Amended Complaint contains only state law claims and no longer asserts a cause of action under Title VII, or any other federal statute.

Plaintiff now moves to remand this action to the Superior Court of New Jersey. In support of his motion, Plaintiff asserts that Defendants' Notice of Removal was untimely and that this Court lacks subject matter jurisdiction over the action because his Amended Complaint asserts no federal claims. Defendants oppose Plaintiff's motion, arguing that removal was timely and that this Court may properly exercise subject matter jurisdiction over Plaintiff's claims.

LEGAL STANDARD

Federal courts are courts of limited jurisdiction, possessing only the power authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A defendant may remove a plaintiff's state court action to federal district court if the plaintiff's action could otherwise have been commenced in federal court. 28 U.S.C. § 1441(a) ("any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ..."). Thus, "[t]o qualify for removal, the cause of action must be a claim 'of which the district courts of the United States have original jurisdiction.'" Penn v. Wal-Mart Stores, 116 F.Supp.2d 557, 561 (D.N.J. 2000) (quoting 28 U.S.C.§ 1441(a)).

The removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941); Steel Valley Auth. v. Union Switch & Signal Div., Am. Standard, Inc., 809 F.2d 1006, 1010 (3d Cir. 1987). "[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court." Federico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). Pursuant to 28 U.S.C. § 1447©, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."

DISCUSSION

I. Timeliness

28 U.S.C. § 1446 sets forth the procedure for removal of a civil action to federal court. Section 1446(a) states, in relevant part:

A defendant or defendants desiring to remove any civil action ... from a state court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal ... ...


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