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Perry v. ADT LLC

United States District Court, D. New Jersey

January 23, 2018

ZURINAH PERRY, Plaintiff,
v.
ADT LLC, SCOTT SHAY, MASUD CHOWDHURY, ABDUL MAHBUT, ANOTHONY BUISON, JOHN DOES 5-10 fictitious names of unknown persons and ABC COMPANIES 1-10 fictitious names of unknown entities,, Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This matter is presently before the Court on the motion of Plaintiff, Zurinah Perry, to remand the action to the Superior Court of New Jersey Law Division, Middlesex County. See Plaintiff's Motion to Remand, D.E. 6. The District Court referred this matter to the Undersigned to issue a Report and Recommendation. This Court has considered the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein, the Court respectfully recommends that the District Court grant Plaintiff's motion and remand this matter to the Superior Court of New Jersey, Law Division, Middlesex County.

         II. BACKGROUND

         Plaintiff, Zurinah Perry, is a resident of New Jersey and a former full-time employee of Defendant ADT LLC (“ADT”). Complaint, D.E. 1-1, at page 1 & ¶8; Civil Case Information Statement, D.E. 6-1, at 32.[1] ADT is a limited liability company that provides “home and business electronic monitoring and automation services across the United States and Canada.” ADT's headquarters is in Florida, and it maintains two New Jersey offices. Id. ¶1. Plaintiff worked full time at ADT as a Residential Sales Representative. Id. ¶8.

         Plaintiff commenced this action on May 12, 2017 in the Superior Court of New Jersey, Law Division, Middlesex County. See Civil Case Information Statement, D.E. 6-1, at 32. Plaintiff alleges that while she was employed at ADT, she suffered discrimination and a hostile work environment based on her race and gender, in violation of the New Jersey Law against Discrimination (“NJLAD”). See generally Complaint, D.E. 1-1. The Complaint includes several individual defendants in addition to ADT. Plaintiff alleges that Defendant Scott Shay is a resident of Staten Island, New York, was employed as a Residential Sales Manager at ADT, and was Plaintiff's supervisor. Id. ¶4. Plaintiff alleges that Defendant Masud Chowdhury is a resident of Edison, New Jersey and was employed as a Team Leader of the Residential Sales Team at ADT. Id. ¶5. Plaintiff further alleges that Defendant Abdul Mahbut resides in Edison, New Jersey and was employed as a Residential Sales Representative. Id. ¶6. Plaintiff alleges that Defendant Anthony Buison resides in Scotch Plains, New Jersey and was employed at ADT as a Residential Sales Representative. Id. ¶7.

         On September 1, 2017, Defendants removed this case from state Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). See Notice of Removal, D.E. 1. In the Notice of Removal, Defendants contended that Plaintiff fraudulently joined Defendants Chowdhury, Mahbut and Buison in order to defeat diversity jurisdiction, and that the Court should disregard their citizenship in its analysis under § 1332. See Notice of Removal, D.E. 1, ¶9. On September 29, 2017, Plaintiff filed an Amended Complaint that, as noted above, added assault and battery claims against Defendant Buison. See Amended Complaint, D.E. 5. Plaintiff also moved to remand on September 29, 2017. Plaintiff argues that she did not fraudulently join the individual defendants because she has cognizable claims against them under NJLAD and New Jersey common law.

         III. Analysis

         As an initial matter, the Court notes that a decision to remand is dispositive. In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir. 1998) (“[A]n order of remand is no less dispositive than a dismissal order of a federal action for lack of subject matter jurisdiction where a parallel proceeding is pending in the state court.”). Accordingly, this Court addresses Plaintiff's motion via Report and Recommendation.

         A. Diversity

         The party seeking removal on the basis of diversity must demonstrate that the matter satisfies the requirements of removal under 28 U.S.C. § 1332(a) and 28 U.S.C. § 1441. When jurisdiction is predicated on diversity of citizenship under § 1332, it “requires satisfaction of the amount in controversy requirement as well as complete diversity between the parties, that is, every plaintiff must be of diverse state citizenship from every defendant.” In re. Briscoe, 448 F.3d 201, 215 (3d Cir. 2006). In most cases, if any plaintiff and any defendant share citizenship, complete diversity will be defeated. Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365 (1978); Grand Union Supermarkets of the Virgin Isl., Inc., v. H.E. Lockhart Mgmt., Inc., 316 F.3d 410 (3d Cir. 2003).

         Here, Plaintiff contends that the Defendants' removal is jurisdictionally improper as a lack of complete diversity deprives the Court of subject matter jurisdiction. Defendants argue, however, that the fraudulent joinder exception applies as to the non-diverse Defendants Chowdhury, Mahbut, and Buison, thus there is complete diversity.[2]

         B. Fraudulent Joinder

         Fraudulent joinder is “an exception to the requirement that removal be predicated solely upon complete diversity.” In re. Briscoe, 448 F.3d at 215-16. If a court finds that joinder of a non-diverse party is not fraudulent, it must remand the case to state court. Id. at 216. If, however, the defendant's joinder was fraudulent, the Court may disregard the defendant's citizenship, assume jurisdiction, dismiss the ...


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