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Burns, et al v. City of Hoboken

July 15, 2011

BURNS, ET AL., PLAINTIFFS,
v.
CITY OF HOBOKEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Salas, United States District Judge

NOT FOR PUBLICATION

OPINION

Before this Court is Plaintiffs Megan Burns, Joseph Nieves, Bruce Walsh, and Citizens for the Retention of Affordable Housing's (the "Plaintiffs") motion for remand. (Docket Entry No. 4, the "Motion" dated November 23, 2010). The Court has reviewed the submissions in support of and in opposition to the Motion, and for the reasons set forth below, the Motion is hereby GRANTED.

I. BACKGROUND

On August 23, 2010, Plaintiffs initiated this action in the Superior Court of New Jersey (the "State Action"), and on October 21, 2010, Plaintiffs filed and served a second amended complaint (the "Second Amended Complaint"). (Docket Entry No. 4-2, Exh. B). The Second Amended Complaint names the following Defendants: (1) City of Hoboken, Hoboken Rent Leveling & Stabilization Board, Suzanne Hetman (the "City Defendants"); (2) Bloomfield 206 Corporation, Steven Silverman, Maryann Bagan (the "206 Defendants"); and (3) 1405 Clinton Street Corporation, and 824 Washington Street, L.L.C. (the "1405/824 Defendants") (collectively the "Defendants").

(Docket Entry No. 4-2, Cathy Cardillo's Affidavit to Support Motion for Remand dated November 23, 2010 (the "Cardillo Aff.") at ¶ 1; Docket Entry No. 9, Memorandum of Law in Opposition to Plaintiffs' Motion for Remand on Behalf of the City Defendants (the "City Defs.' Opp. Br.") at 1). On November 4, 2010, the City Defendants removed the State Action to this Court on the basis of federal question jurisdiction. (Docket Entry No. 1, the "Notice of Removal"). The Notice of Removal provides that "all defendants named within the complaint have consented to removal." (Id.). On November 23, 2010, Plaintiffs moved to remand this action. (Motion).

II. RELEVANT LAW

Pursuant to 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 or the defendants, to the district court of the United States." 28 U.S.C. § 1441(a); see also Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). On a motion to remand, the party asserting jurisdiction (the removing party) bears the burden of establishing that the action is properly before the court. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Moreover, as federal courts are of limited jurisdiction, removal statutes should be construed strictly against removal, with all doubts resolved in favor of remand. Id.; see also Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

To properly remove a case from state court to federal court, a party must file a notice of removal in the federal court within thirty days after receipt "through service or otherwise, of a copy of an amended pleading . . . from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). The thirty day period for removal is mandatory. See Galvanek v. AT&T, Inc., No. 07-2759, 2007 WL 3256701, at *2 (D.N.J. Nov. 5, 2007) (citing Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (E.D. Pa. 1982)).

The "Rule of Unanimity" requires that "when there is more than one defendant, all must join in the removal petition." Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985); see also Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). "[T]he failure of all defendants to remove creates a defect in removal procedure within the meaning of § 1447(c)." Balazik, 44 F.3d at 213.

III. DISCUSSION

Plaintiffs argue that the Court should grant the Motion for Remand because the City Defendants failed to obtain the consent of all other defendants prior to removal, constituting a procedural defect in the removal process. (Docket Entry No. 4-1, Memorandum of Law to Support Motion for Remand ("Pls.' Br.") dated November 23, 2010 at 1-3). Defendants argue that the Court should deny the Motion for Remand because all Defendants consented to removal or, in the alternative, the Court should permit Defendants to amend the Notice of Removal to cure the alleged defect. (City Defs.' Opp. Br. at 3-5; see Docket Entry No. 10, 206 Defendants' Letter Brief in Opposition to the Motion dated December 21, 2010 ("206 Defs.' Opp. Br.") at 1; see Docket Entry No. 12, 1405/824 Defendants' Letter Brief in Opposition to the Motion dated January 3, 2011 (the "1405/824 Defs.' Opp. Br.") at1-2).

A. A Defect in the Removal Process

To begin, the Court finds a defect in the removal process because of the City Defendants' failure to timely obtain the 206 Defendants and the 1405/824 Defendants' consent to removal. Although The Rule of Unanimity does not require each defendant to sign the actual notice ofremoval, courts generally require each defendant served in the action to provide "some form of unambiguous written evidence of consent to the court in a timely fashion." Michaels v. New Jersey, 955 F. Supp. 315, 321 (D.N.J. 1996) (emphasis in original). Moreover, a removing defendant may not submit consent to the court on behalf of non-removing defendants. Id.; see ...


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