United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
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.
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. 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.
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.
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.
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.
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).
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.
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 ...