United States District Court, D. New Jersey
STANLEY L. NIBLACK, Plaintiff,
EDUCATION & HEALTH CENTERS OF AMERICA, et al, Defendants.
LINARES Chier Judge
matter comes before the Court by way of Stanley L.
Niblack's ("Plaintiff) motion to remand the present
matter pursuant to 28 U.S.C. § 1447. (ECF No. 6)
("Motion"). Defendants have filled an opposition.
(ECF No. 8). The Court has read the submissions of the
parties and considers this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78. For the
reasons set forth below, the Court denies Plaintiffs Motion.
is currently a state prisoner confined at the Albert M.
"Bo" Robinson Assessment and Treatment Center in
Trenton, N.J. Plaintiffs Complaint alleges violations of his
civil rights under 42 U.S.C. § 1983 and the New Jersey
Civil Rights Act ("CRA"). (ECF No. 4-1). Plaintiff
raises three claims against the various defendants: (1) that
Defendants have been deliberately indifferent to his medical
needs, especially those relating to his diabetes; (2) that
the conditions of confinement at Bo Robinson amount to cruel
and unusual punishment in violation of the New Jersey and
Federal constitutions; and (3) that Bo Robinson and its
parent companies have denied Plaintiff his First Amendment
rights by refusing to respond to his grievances.
(See generally ECF No. 4-1). Plaintiff
initially filed this case in state court, (ECF No. 4-1), and
Defendants removed the case to federal court based on federal
question jurisdiction. (ECF No. 1). Plaintiffs Motion now
seeks to remand the case to state court. (ECF No. 6).
support of his Motion, Plaintiff makes three arguments.
First, he argues that the Defendants' notice of removal
was defective and that all Defendants failed to consent to
removal. (ECF No. 6). Second, Plaintiff claims that removal
was untimely under the "later-served defendant rule,
" and third, Plaintiff asserts that he has the right to
choose the forum in which he litigates. (Id.).
Court will now address these claims in turn.
28 U.S.C. § 1441, "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 ...
defendants, to the district court.. .." Federal courts
have original jurisdiction over cases presenting federal
questions. 28 U.S.C. § 1331 ("The district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States." Federal question jurisdiction exists "only
when a federal question is presented on the face of the
plaintiffs properly pleaded Complaint." Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987). In the
instant case, Plaintiff clearly raises claims invoking
federal question jurisdiction, as he alleges violations of
his civil rights pursuant to 42 U.S.C. § 1983. (ECF No.
4-1). Therefore, this Court has original jurisdiction over
those claims pursuant to 28 U.S.C. § 1331, and has
supplemental jurisdiction over Plaintiffs related
state-claims pursuant to 28 U.S.C. § 1367.
first argues that removal was defective because all
Defendants have not consented to removal. In a case where
there are multiple defendants, "Section 1446 has been
construed to require that... all must join in the removal
petition." Lewis v. Rego Co., 757 F.2d 66, 68
(3d Cir. 1985). This requirement is commonly known as the
"rule of unanimity, " and a "failure of all
defendants to join in the notice of removal creates a
'defect in the removal procedure within the meaning of
§ 1447(c).'" Cacoilo v. Sherwin-Williams
Co., 902 F.Supp.2d 511, 516 (D.N.J. 2012) (quoting
Balazik v. Cty. Of Dauphin, 44 F.3d 209, 213 (3d
Cir. 1995)). Defendants argue that removal is proper, since
the same counsel represents all Defendants, and therefore,
Defendants consented to removal when their counsel filed the
Notice of Removal. (ECF No. 8). Where defendants jointly file
the notice of removal, the rule of unanimity is satisfied.
See Weinrach v. Wliite Metal Rolling and Stamping
Corp., No. Civ.A. 98-3293, 1999 WL 46627, at *1 (E.D.
Pa. Jan. 6, 1999) (citing Balazik, AA F.3d at 213)).
Here, the Notice of Removal, (ECF No. 1), clearly shows that
the same counsel represents all Defendants, and thus
Defendants jointly filed the notice of removal. As such,
there is no defect in Defendants' removal under the rule
of unanimity articulated in 28 U.S.C. § 1446.
next argues that Defendants' Notice of Removal was
untimely under the later-served defendant rule. Plaintiff is
correct that this District has adopted the later-served
defendant rule. See Orlickv. J.D. Carton & Son,
Inc., 144 F.Supp.2d 337, 342-43 (D.N.J. 2001). Under
this rule, "each defendant to an action is entitled to
thirty days after service to remove an otherwise removable
action and ... all defendants can consent to that removal,
even if their own thirty-day periods have expired."
Id. at 342 (quoting Griffith v. Am. Home Prods.
Corp., 85 F.Supp.2d 995, 998 (E.D. Wa. 2000)). The
latest-served Defendant in this matter was served with
Plaintiffs Complaint on August 9, 2017. (ECF Nos. 6, 8).
Defendants filed their Notice of Removal in this Court on
August 22, 2017. (ECF No. 1). As such, Defendants'
removal of this case is timely under 28 U.S.C. 1446.
Plaintiff claims that he is entitled to his choice of venue
as a matter of right and that removal of this case would
undercut the principles of federalism. (ECF No. 6). In this
matter, Plaintiff is not entitled to his choice of venue, as
Defendants have properly removed this case to federal court
pursuant to federal question jurisdiction under 28 U.S.C.
§§ 1331 and 1441. As such, the Court will not
remand this case to state court.
aforementioned reasons, Plaintiffs Motion, (ECF No. 6), is