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Niblack v. Pettway

United States District Court, Third Circuit

December 3, 2013

OFFICER LORENZO PETTWAY, et al., Defendants.

STANLEY L. NIBLACK, Plaintiff pro se #923038A Delmont, New Jersey.

CHRISTINE M. VANEK, ESQ., SCARINCI HOLLENBECK, Lyndhurst, New Jersey, Counsel for Defendants.


JOEL A. PISANO, District Judge.

This matter comes before the Court on Plaintiff's motion to remand this matter to state court. (ECF No. 9.) The Court also considers Defendants' motion to vacate default. (ECF No. 2.) These motions are being considered on the papers, pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, the Court concludes that this action should be remanded to state court, and therefore, Plaintiff's motion shall be granted and Defendants' motion to vacate default will be denied as moot.


On November 5, 2012, Plaintiff, Stanley L. Niblack ("Niblack" or "Plaintiff"), filed a lawsuit in the Superior Court of New Jersey, Law Division, Monmouth County, under Docket No. MON-L-4506-12, against Defendants Officer Lorenzo Pettway of the Asbury Park Police Department, the City of Asbury Park, Asbury Park Mayor Ed Johnson and the Asbury Park Police Department Chief or Captain Mark Kinnemon. (ECF No. 1, Exhibit A.) Niblack asserts that his constitutional and civil rights were violated by the Defendants stemming from an incident that occurred in Asbury Park on August 17, 2011. In particular, Niblack alleges that, while he was in a friend's parked car, Defendant Pettway ordered Niblack to exit the vehicle, threw Niblack against the vehicle and emptied the contents of Niblack's pockets. ( Id. , ¶ 1.) Pettway then ordered Plaintiff to follow him to Niblack's own car parked around the corner, and Pettway proceeded to search Niblack's vehicle and all of its compartments and bags without Niblack's consent or a search warrant. ( Id. , ¶¶ 2, 3.) Niblack claims that Defendant Pettway conducted an illegal search and seizure in violation of Plaintiff's constitutional rights, and that Defendants Mayor Johnson, Chief/Captain Kinnemon and the City of Asbury Park failed to train, supervise or discipline their police officers. ( Id ., ¶¶ 3-7.) Niblack seeks $4 million in compensatory, punitive and special damages. ( Id ., "Demand.")

On June 17, 2013, Defendants removed this action to this District Court pursuant to 28 U.S.C. §§ 1331 and 1441, asserting that the Court has subject matter jurisdiction over Plaintiff's unlawful search and seizure claim pursuant to federal question jurisdiction under 28 U.S.C. § 1331. (ECF No. 1 at ¶¶ 4-6.) On June 26, 2013, Defendants filed a motion to vacate default and extend the time within which to submit a responsive pleading. (ECF No. 2.) Defendants submitted an answer with their motion. (ECF No. 2-1.) Defendants argue that they were never personally served with the complaint in the state court action. Nevertheless, Plaintiff applied to state court for entry of default, which was granted on April 1, 2013, two and a half months before Defendants removed the action to this District Court. (ECF No. 2-2 at 4.)

On July 8, 18, 22, and 23, 2013, Niblack filed letters and/or memoranda in opposition to removal. (ECF Nos. 4, 5, 6, 7 and 8.) On July 25, 2013, Plaintiff filed a motion for remand. (ECF No. 9.) In these papers opposing removal, Niblack refutes Defendants' contention that service of process was not effective on all of them. Indeed, in his letter dated July 22, 2013, Niblack attaches proof of service upon all Defendants, showing that service was completed on February 19, 2013. (ECF No. 7.) Plaintiff argues that removal is improper in this case where entry of default has been granted, where a motion for default judgment and proof hearing was filed and served on Defendants in state court, and where Plaintiff has filed an amended complaint in the state court action, naming additional Defendants on whom the Monmouth County Sheriff's Office is attempting service of process. (ECF No. 4, 5 at ¶¶ 6 through 13.)

Niblack also alleges that he did not receive the Notice of Removal until June 25, 2013, as Defendants used an incorrect address to serve him. Niblack contends that Defendants have tactically employed removal knowing the limitations in Plaintiff's ability to respond quickly due to his incarceration. (ECF No. 6.) Niblack further alleges that Defendants' counsel was served with a Demand for Production of Documents in the state matter on March 18, 2013, thus providing additional notice of Plaintiff's complaint against the Defendants months before a notice of removal was filed. (ECF No. 9-2.) Consequently, Plaintiff alleges that removal by Defendants was improper under 28 U.S.C. § 1446(b), because the matter was not removed within thirty (30) days after service of process. Namely, Defendants removed the state court case to the District Court on June 17, 2013, almost four months after service of process was completed on all Defendants on February 19, 2013. (ECF No. 9 at ¶ 15 and Exhibit "B".)

On August 19, 2013, Defendants filed opposition to Plaintiff's motion to remand this matter to state court. (ECF No. 13.) Defendants acknowledge that the municipal Defendant, the City of Asbury Park, was properly served on February 19, 2013, pursuant to New Jersey Rule of Court 4:4-4(a)(8). However, Defendants argue that service on the individual Defendants was defective because it was not served pursuant to N.J.Ct.R. 4:4-4(a)(1), which allows service "by delivering a copy thereof [of the summons and complaint] to a person authorized by appointment or by law to receive service of process on the individual's behalf." Defendants contend that the municipal clerk is not so authorized by any municipal ordinance or state statute. (ECF No. 13 at 3.)

Plaintiff filed a reply on September 12, 2013. (ECF No. 14.)


A. Standards for Removal and Remand

An action filed in a state court may be removed to the appropriate federal district court by the defendant if that federal district court would have had original jurisdiction over the matter. See 28 U.S.C. § 1441(a). To effect removal, the defendant must file a notice of removal, "containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon defendant or defendants in such action." 28 U.S.C. § 1446(a). The removing party bears the burden of demonstrating that the federal court has subject matter jurisdiction over the action. See Frederico v. Home Depot , 507 F.3d 188, 193 (3d Cir. 2007); Samuel-Bassett v. KIA Motors Am., Inc. , 357 F.3d 392, 396 (3d Cir. 2004); see also Wells Fargo Bank, N.A. v. Mastoris , Civil Action No. 13-5008, 2013 WL 6154531, at *3 (D.N.J. Nov. 22, 2013). The Third Circuit has clarified ...

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