United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
Nafart Construction Group, LLC (“Plaintiff”)
brings this action against Icon Builders, LLC
(“Defendant”), alleging claims of breach of
contract and unjust enrichment. This matter comes before the
Court on Defendants' motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(5) and Plaintiff's
motion to remand pursuant to 28 U.S.C. § 1447(c). There
was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set
forth below, Defendant's motion to dismiss is
DENIED and Plaintiff's motion to remand
is a construction company with its principal place of
business located in Newark, New Jersey. Notice of Removal
(“Def.'s Notice”), Ex. A, Compl. ¶ 1,
ECF No. 1-1 [hereinafter “Compl.”]. Defendant is
a Texas corporation with its principal place of business in
Port Arthur, Texas. Def.'s Notice at ¶ 5. On
December 14, 2016, Plaintiff filed suit against Defendant in
the Superior Court of New Jersey, claiming breach of contract
and unjust enrichment with damages of $90, 120.00.
See Compl. at ¶¶ 3-15. After Defendant
failed to timely answer, the Superior Court entered default
against Defendant at Plaintiff's request on February 14,
2017. See Def.'s Notice, Ex. B at 13-14, ECF No.
1-2. In support of its request, Plaintiff filed an affidavit
of service (“Affidavit”) issued by a private
process server, Guaranteed Subpoena Service, Inc.
(“GSSI”), affirming that Defendant was properly
served at its New Jersey address on December 28, 2016.
Id. at 15 [hereinafter “Aff.”]. The
Affidavit states that “Michelle Harter” was
successfully served at 10:18 a.m. and describes her as
follows: white; brown hair; between 36 to 50 years of age;
between 5'9” and 6'0” in height; and
weighing between 131 and 160 pounds. Id.
February 23, 2017, Defendant filed notice of removal pursuant
to 28 U.S.C. §§ 1332, 1441 and 1446. See
Def.'s Notice at ¶ 6. A week later, Defendant moved
to dismiss the Complaint with prejudice, claiming that
Plaintiff never properly served Defendant in accordance with
New Jersey law. See Br. in Supp. of Mot. to Dismiss
(“Dismiss Mot.”) 3-4, ECF No. 2-1. Defendant
admits that a woman named Michelle Harder works as the office
manager of Defendant's New Jersey office, but points to
inconsistencies in the Affidavit as evidence that she was
never served. Defendant argues that, contrary to the
Affidavit, Ms. Harder is actually 5'6” tall, weighs
approximately 120 pounds, and had blonde hair at the time of
purported service. See id. at 2; see also
id., Ex. B, Harder Aff., ECF No. 2-3. Defendant also
highlights the misspelling of Ms. Harder's name as
“Harter.” Id. at 2. Ms. Harder denies
having ever received any documents associated with this
matter prior to February 23, 2017. Harder Aff. at ¶ 6.
opposes, arguing that service was proper, that the Affidavit
creates a rebuttable presumption of the validity of service,
and that Defendant's uncorroborated testimony is
insufficient to overcome the presumption. See
Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss
(“Dismiss Opp'n”) 3-6, ECF No. 4. Plaintiff
filed a supporting affirmation from the Chief Technology
Officer of GSSI, which stated that GSSI maintains a system
that documents the location of a server at the time of
service using the GPS coordinates from the server's cell
phone. See Affirm. of J. Metta (“Metta
Affirm.”), ECF No. 4-1. The process server's GPS
coordinates at the time of service, 10:18 a.m., indicated
that the server was within 150 meters of Defendant's New
Jersey office. Id., Ex. A, ECF No. 4-2. Defendant
timely filed a reply. ECF No. 5.
to filing its opposition, Plaintiff filed a motion to remand
the matter to the Superior Court, arguing that
Defendant's notice of removal was untimely. See
Br. in Supp. of Mot. to Remand (“Remand Mot.”) 3,
ECF No. 3-1. Plaintiff largely reiterates the same arguments
from its opposition to dismissal that service was proper.
See id. at 4- 7. Likewise, Defendant reiterates its
arguments that service was improper. See Def.'s
Resp. in Opp'n to Pl.'s Mot. to Remand (“Remand
Opp'n”) 2-6, ECF No. 6. Notably, Defendant argues
that since Plaintiff's service was improper, the 30-day
time limit for removal did not start until Defendant received
notice of default. Consequently, Defendant's removal was
timely. See id. at 1. Plaintiff filed a reply. ECF
No. 7. The Court finds that both motions turn on the same
procedural concern about the propriety of service and will
address the motions together.
Rule of Civil Procedure 12(b)(5) provides for dismissal of a
complaint due to insufficient service of process. “To
determine the validity of service before removal, a federal
court must apply the law of the state under which the service
was made.” Granovsky v. Pfizer, Inc., 631
F.Supp.2d 554, 560 (D.N.J. 2009) (citing Allen v.
Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986)).
Service of limited liability corporations is governed by New
Jersey Rule of Court 4:4-4(a)(5), which provides that service
is proper when served upon “an officer or a managing
agent.” See Erwin v. Waller Capital Partners,
LLC, No. 10-cv-3283, 2010 WL 4053553, at *5 (D.N.J. Oct.
jurisdiction requires a dispute between citizens of different
states and an amount in controversy exceeding $75, 000. 28
U.S.C. § 1332(a). “The notice of removal of a
civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading . . . .”
See 28 U.S.C. § 1446(b)(1). “A motion to
remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal . . . .”
See 28 U.S.C. § 1447(c). “[F]ailure to
file a notice of removal within the time period provided by
the removal statutes is a sufficient ground on which to
remand an action.” Carroll v. United Air Lines,
Inc., 7 F.Supp.2d 516, 519 (D.N.J. 1998). “The
removal statutes are to be strictly construed against removal
and all doubts should be resolved in favor of remand.”
Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d
Cir. 1990) (internal quotation omitted).
parties' motions turn on the answer to a simple question:
was service proper? If service was proper, then Defendant did
not file notice of removal within the 30-day time limit and
Plaintiff's motion to remand must prevail. If it was
improper, then Defendant's motion to dismiss must prevail
because Defendant's notice of removal was timely and this
Court retains jurisdiction on diversity grounds. In light of
the well-settled policy that “all doubts be resolved in
favor of remand, ” the Court finds that remand is
appropriate in the instant case because service was proper.
See Boyer, 913 F.2d at 111.
rule in [New Jersey] is that a sheriff's return of
service is part of the record and raises a presumption that
the facts recited therein are true. While the presumption is
rebuttable, it can be rebutted only by clear and convincing
evidence that the return is false.” Garley v.
Waddington, 425 A.2d 1084, 1088 ( N.J.Super.Ct.App.Div.
1981). The presumption extends to returns of service made by
private process servers authorized to effect service pursuant
to New Jersey Court Rule 4:4-3. Hillside Golf, Inc. v.
Gino Inn, Inc., 2010 WL 4056552, at *5 (
N.J.Super.Ct.App.Div. July 22, 2010), cert. denied
12 A.3d 209 (N.J. 2010). Furthermore, “[i]t is
generally held that the uncorroborated testimony of the
defendant alone is not sufficient to impeach the
return.” Goldfarb v. Roeger, 148 A.2d 189, 192
( N.J.Super.Ct.App.Div. 1959).
does not dispute that GSSI is an authorized private process
server in New Jersey, nor does Defendant argue that Ms.
Harder could not accept service on its behalf. Defendant does
not contest the GPS coordinates provided by GSSI and does not
refute that GSSI's server was, in fact, within 150 meters
of its address at 10:18 a.m. on December 28, 2016.
See Metta Affirm. at ¶ 7. Defendant offers only
Ms. Harder's uncorroborated testimony in support of its
claim that it was never served. Defendant's sole argument
rests on apparent ...