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Bader v. Schmidt Baking Co., Inc.

United States District Court, Third Circuit

January 10, 2014

SCHMIDT BAKING CO., INC., et al., Defendants.


ROBERT B. KUGLER, District Judge.

This matter comes before the Court on the motion of Michael Bader ("Plaintiff") to remand this action to the Superior Court of New Jersey, Law Division, Camden County. Plaintiff alleges that Defendants' removal was not timely and thus in violation of 28 U.S.C. § 1447(c)(1), and further seeks costs and attorney's fees. Defendants respond that although they removed this case more than one year after Plaintiff commenced his action in state court, Plaintiff's bad faith excuses the untimeliness of their filing. For the reasons stated below, Plaintiff's motion is GRANTED in PART and DENIED in PART.


On or about November 6, 2011, Plaintiff was working as an order picker for Gourmet

Bakery Distributors, Inc., when Defendant Charles Sluter, an employee of Defendant Schmidt Baking Co., Inc., allegedly struck the Plaintiff in the knee with a hand truck causing the Plaintiff to be injured. (Doc. No. 8, Ex. A (Compl. ¶¶ 1-4, 6).) On May 16, 2012, Plaintiff filed his Complaint in the Superior Court of New Jersey, Camden County, against Defendants for negligence. (Id.) Plaintiff's Complaint included a Demand for Answers to Interrogatories. (Id.)

Defendant Schmidt was served on May 29, 2012. ( Id., Ex. B (Affidavit of Service on Defendant Schmidt Baking Co., Inc., dated May 29, 2012).) Defendant Sluter's counsel accepted service on behalf his client on September 18, 2012, after Plaintiff attempted to serve Defendant Sluter seven times at seven different addresses. ( Id., Ex. C (Letter of Counsel for Defendant Sluter Accepting Service).) Both Defendants are represented by the same attorney.

After counsel accepted service on Defendant Sluter's behalf, he sought a twenty-day extension to respond to Plaintiff's Complaint. (Id.) Defendant Schmidt answered Plaintiff's Complaint on July 31, 2012, and Defendant Sluter answered on November 13, 2012. (Doc. No. 6, Exs. B-C (Amended Notice of Removal attaching Defendants' Answers).) In their Answers, both Defendants included a request for a Statement of Damages pursuant to Rule 4:5-2 of the New Jersey Rules Governing Civil Practice, as well as a Demand for Discovery. (Id.)

After discovery commenced, Plaintiff responded to Defendants' Interrogatories on or about April 22, 2013, and provided Defendants with records of his medical treatment. (See Doc. No. 8, Exs. H (Plaintiff's Responses to Form A Interrogatories), I (Physician's Report), K (Plaintiff's Response to Defendants' Notice to Produce # 12 and attached SSA Disability Determination).) Plaintiff was also deposed on June 4 and June 26, 2013. (See id., Ex. L (Excerpts of Pl.'s Dep.).)

On September 4, 2013, Defendants sent Plaintiff a letter again requesting a Statement of Damages. ( Id., Ex. F.) On September 6, 2013, Plaintiff responded to Defendants' letter, and claimed damages in the amount of $1.2 million on each of Plaintiff's claims. ( Id., Ex. G.) Defendants then filed their Notice of Removal on September 24, 2013, (Doc. No. 1), and amended their Notice on October 2, 2013, (Doc. No. 6). Plaintiff filed his Motion to Remand on October 19, 2013, and also requested costs and attorney's fees. (Doc. No. 8.)


Where, as here, a case is removed pursuant to § 1446(b)(3) more than one year after commencement of the action on the basis of jurisdiction conferred by 28 U.S.C. § 1332, that action must be remanded "unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." Id . § 1446(c)(1). "If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under [§ 1446(c)(1)]." Id . § 1446(c)(3)(B). In determining when an action is "commenced, " the Court refers to New Jersey's Rules Governing Civil Practice, which state that a civil action is "commenced" when, pursuant to Rule 4:2-2, a complaint is filed with the court. See Am. Cas. Co. of Reading, Pa. v. Continisio, No. 91-5107, 1992 WL 489730, at *3 (D.N.J. Sept. 11, 1992) ("Thus, state law itself tells us that an action is commenced, or brought, ' by the filing of the complaint."); see also Farrell v. Votator Div. of Chemetron Corp. , 299 A.2d 394, 399 (N.J. 1973).

Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court. To defeat a plaintiff's motion to remand, the defendant bears the burden of showing that the federal court has jurisdiction to hear the case. Abels v. State Farm Fire & Casualty Co. , 770 F.2d 26, 29 (3d Cir. 1995). Where the decision to remand is a close one, district courts are encouraged to err on the side of remand. Id. at 29 ("Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand.").

Finally, where a plaintiff seeks "just costs and any actual expenses, including attorney fees, incurred as a result of the removal, " 28 U.S.C. §1447(c), the Supreme Court has explained that "[a]bsent unusual circumstances, courts may award attorney's fees under Section 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied." Martin v. Franklin Capital Corp. , 546 U.S. 132, 141 (2005) (emphasis added). In determining whether to award fees, district courts should employ a balancing test, "recogniz[ing] the desire to deter removals sought for the purpose of prolonging litigation and imposing costs ...

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