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Uddin v. Sears, Roebuck & Co.

United States District Court, Third Circuit

January 2, 2014

SHAMS UDDIN and SAMIHA MITWALLY, Plaintiffs,
v.
SEARS, ROEBUCK & COMPANY and JOHN DOES 1-100, Defendants.

REPORT AND RECOMMENDATION

MICHAEL A. HAMMER, Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court on the motion of Plaintiffs Shams Uddin and Samiha Mitwally to remand this matter to the Superior Court of New Jersey, Essex County pursuant to 28 U.S.C. § 1447(c). Pursuant to Local Civil Rule 72.1, the Honorable Jose L. Linares, United States District Judge, referred the motion to this Court for Report and Recommendation. For the reasons set forth below, the Undersigned respectfully recommends that Plaintiffs' motion be denied.

II. BACKGROUND

Plaintiffs, both residents of New Jersey, are former employees of Defendant Sears, Roebuck & Company ("Sears"). See Compl., ECF No. 1, at 1, 2.[1] Plaintiffs were both terminated on August 24, 2013 and allege that their terminations were motivated by their religious beliefs. Id . Ms. Mitwally also claims that from August 12, 2012 until her termination, she was a victim or harassment and was assaulted by an assistant manager. Id . at 3.

The Complaint contains three causes of action against Sears. Count One alleges that Sears terminated the employment of Plaintiff Shams Uddin on August 24, 2013, on the basis of his religion, in violation of New Jersey's Law Against Discrimination ("NJLAD"). Count Two alleges that Sears terminated the employment of Plaintiff Samiha Mitwally on August 24, 2013, on the basis of her religion, in violation of NJLAD. Count Three alleges that an assistant manager at Sears harassed and assaulted Plaintiff Samiha Mitwally. The Complaint also contains a fourth count against fictitious defendants that may have been responsible for Plaintiffs' terminations. Id . at 4. Plaintiffs seek compensatory damages, punitive damages, counsel fees, costs of suit, lawful interest, and any other appropriate damages.

Sears was served with a copy of the Complaint no earlier than October 1, 2013. See Notice and Petition for Removal, ECF No. 1 ¶ 3. Sears filed its removal petition on October 29, 2013. Id . ¶ 4. In both the removal petition and in opposition to Plaintiffs' motion to remand, Sears asserted that removal was appropriate as this Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332(a). Id . ¶¶8-9. Sears asserted that this action is between citizens of different states and the amount in controversy exceeds $75, 000. Id . ¶ 8. As to diversity of citizenship, Sears represented that it is a New York corporation with its principal place of business in Illinois, and that Plaintiffs were citizens of New Jersey. Id . ¶ 9. Regarding the amount in controversy, Sears claimed that in 2012, Mr. Uddin earned $66, 885.63 and Ms. Mitwally earned $48, 117.64. Id . ¶ 10. Therefore, if damages were limited to a single year of back-pay, Plaintiffs' recovery would total $115, 003.27. Id . Sears also contends that the amount in controversy clearly exceeds $75, 000 because Plaintiffs also seek damages for emotional distress, punitive damages, and counsel fees. Id.

On November 7, 2013, Plaintiffs filed a certification "in opposition to the motion to remove[.]" See ECF No. 6. Plaintiffs argued in opposition that "[t]here is absolutely no reason why the within matter needs to be removed" as the State court has in personam jurisdiction over Sears and Sears only seeks to engage in "forum shopping." Id . ¶¶ 5-6.

Sears filed a response to Plaintiffs' November 7, 2013 filing on November 13, 2013. See ECF No. 7. In this submission, Sears noted that Plaintiffs improperly filed an opposition to removal instead of a motion to remand. Sears also reiterated its position that this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a), and added that complete diversity would still exist even if Sears' parent corporation, Sears Holding, was a defendant. Id.

On November 14, 2013, the Court issued an order addressing Plaintiffs' November 7, 2013 certification. See ECF No. 8. The Court, while referencing certain deficiencies contained in Plaintiffs' filing, ordered that the Court would take no further action as to that submission as it failed to comply with Local Civil Rules 7.1 and 7.2. Id . The Court ordered that any amended motion must be filed on or before November 30, 2013. Id.

Plaintiffs moved to remand on December 11, 2013. See ECF No. 14. In their brief, Plaintiffs essentially concede there is diversity of citizenship, but argue that Sears has not demonstrated the amount in controversy requirement is satisfied. See Pls. Br., ECF No. 14-1 at 2 ("While arguably there could be diversity of citizen based upon the purported fact that the parent company of Sears, Roebuck, and Company is located in Illinois, there is no showing by the defendant that the amount of controversy on behalf of each plaintiff is worth in excess of $75, 000."). Plaintiffs assert that Sears "has not consented to and does not contend that the amount in controversy exceeds $75.000.00 nor does it admit that plaintiffs' cases are respectively worth in excess of $75, 000.00." Id . Furthermore, Plaintiffs assert that because the fictitious defendants have not consented to removal, removal is improper. Id.

On December 12, 2013, the Court issued an Order to Show Cause as to why Plaintiffs' motion to remand based upon non-jurisdictional grounds should not be denied for failing to have been filed within 30 days of removal, as required by 28 U.S.C. § 1447(c). See ECF No. 15. In this Order, the Court required each party to submit a brief that included:

(1) citations to caselaw addressing if and when a motion to remand may be filed after the 30 days provided by 28 U.S.C. § 1447(c) have passed; and
(2) citations to caselaw and recitations of fact sufficient to demonstrate whether "good cause" exists for the Court to modify its November 14, 2013 Order, which required any ...

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