United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
complaint in this action was filed in New Jersey Superior
Court, Essex County, Law Division, on August 22, 2017. It
asserts one state-law claim. On September 8, 2017, the
defendant, BioReference Laboratories, Inc.
("BioReference") filed a notice of removal,
invoking this court's diversity jurisdiction under 28
U.S.C. 1332(a). (ECF no. 1) Now before the court is the
motion (ECF no. 7) of the plaintiff, Stephanie Halliday, to
remand the case to state court, pursuant to 28 U.S.C. §
parties are diverse and that the matter in controversy
exceeds $75, 000. See 28 U.S.C. § 1332(a). Ms.
Halliday is a citizen of Texas; BioReference, a New Jersey
corporation headquartered in Elmwood Park, is a citizen of
New Jersey; and the complaint may reasonably be construed to
demand in excess of $75, 000. Ms. Halliday does not dispute
issue is the applicability, or not, of the "home
state" or "forum defendant" exception to
removal based on diversity jurisdiction:
A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action is brought.
28 U.S.C. § 1441(b)(2). It applies, says Ms. Halliday,
because defendant BioReference, a New Jersey citizen, was
sued in New Jersey and seeks to remove the action to a New
Jersey federal court. If she is correct, then
removal-irrespective of whether diversity jurisdiction
exists-is barred by statute.
issue comes down to a dispute over the phrase "properly
joined and served as [a] defendant." Id.
BioReference says that it filed the notice of removal after
the complaint had been filed, but before it had been served,
so it is not a party "joined and served as [a]
defendant" within the meaning of Section 1441(b)(2).
This tactic is commonly known as "snap removal, "
and it has been discussed in the case law many times before.
applied to this case, the doctrine has two dimensions.
first involves a factual and legal dispute over whether
BioReference was in fact properly served.
admits that on September 1, 2017, a week before it filed the
notice of removal, a professional process server brought the
papers to BioReference's headquarters, where a
receptionist signed for them and accepted them. BioReference,
however, disputes that this was "proper"
(i.e., valid) service, and submits declarations from
the receptionists stating that they received the papers but
are not authorized to accept service for the corporation.
(ECF no. 8-1 at pp. 4-12) Therefore, the argument runs,
BioReference may have received the papers at its
headquarters, but it had not been properly served
with the papers, when it filed its notice of removal on
September 8, 2017.
is a second, legal dimension to the issue. BioReference
admits receipt of the summons and complaint at its
headquarters as of September 1, 2017. I can dispose of the
"snap removal" claim as a matter of law. It is
therefore not necessary that I resolve factual or legal
disputes over "proper" service, or ancillary
factual disputes about the precise circumstances of
that "snap removal" is impermissible here, and that
the § 1441(b)(2) "forum defendant" exception
issue, Third Circuit guidance is lacking, for the very good
reason that such a remand is not appealable. See 28
U.S.C. § 1447(d) (with irrelevant exceptions, "[a]n
order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise");
Cook v. Wikler, 320 F.3d 431, 435 (3d Cir. 2003)
(holding that a 1996 strengthening amendment to 28 U.S.C.
§ 1447(c) worked a corresponding expansion in the scope
of the § 1447(d) bar to appeal, in effect abrogating
earlier case law permitting appeal in some circumstances);
McBride v. Twp. of W. Orange, 127 Fed.Appx. 54, 56
(3d Cir. 2005) (citing 28 U.S.C. § 1447(d) and
dismissing appeal from § 1447(c) remand)).
overview of the split in district court authority on this
question, a good starting point is Williams v. Daiichi
Sankyo, Inc.,13 F.Supp.3d 426, 430 (D.N.J. 2014). I
find the cases rejecting the "snap removal" tactic
to be more persuasive; at least under these circumstances, I
believe, removal would be contrary to the legislative intent
and purpose. BioReference's interpretation of the statute
would "reward defendants for conducting and winning a
race, which serves no conceivable public policy goal, to file
a notice of removal before the plaintiffs can serve such
process." Id. (quoting Sullivan v. Novartis
Pharms. Corp.,575 F.Supp.2d 640, 646 (D.N.J. 2008)).
See also Brigand v. HMS Host Int'l, No.
14-CV-4813 CCC-SCM, 2015 WL 1268300, at *2 (D.N.J. Mar. 16,
2015); Gentile, ...