United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.
this Court are (1) Plaintiff PharmaRx LLC's
(“PharmaRx”) Motion to Remand (ECF No. 11) and
(2) Defendant 340Basics Inc.'s (“340Basics”)
Motion to Partially Dismiss PharmaRx's Complaint (ECF No.
5). For the reasons set forth herein, PharmaRx's Motion
to Remand is GRANTED, and 340Basics'
Motion to Partially Dismiss PharmaRx's Complaint is
DENIED AS MOOT.
Factual And Procedural Background
case arises from an alleged breach of contract whereby
PharmaRx would procure prospective clients for 340Basics.
(Compl. (ECF No. 1-1) ¶ 6.) The parties executed an
agreement (the “Agreement”) in October 2014.
(Id. ¶ 5.) PharmaRx contends it procured a
client for 340Basics, which then refused to pay PharmaRx for
its services. (Id. ¶¶ 7-9.)
March 27, 2017, PharmaRx filed the Complaint in the Superior
Court of New Jersey, Law Division, Monmouth County (Civ. A.
No. MON-L-1229-17) asserting claims for (1) breach of
contract (Count I), unjust enrichment (Count II), breach of
the implied covenant of good faith and fair dealing (Count
III), and fraud (Count IV). (Id. ¶¶
10-33.) On June 2, 2017, 340Basics filed the Notice of
Removal with this Court pursuant to 28 U.S.C. § 1441,
asserting this Court's original jurisdiction under 28
U.S.C. § 1332 based on complete diversity of citizenship
between the parties. (ECF No. 1.) On June 9, 2017, 340Basics
filed its Motion for Partial Dismissal. (ECF No. 5.) PharmaRx
opposes the Motion. (ECF No. 18.) On June 30, 2017, PharmaRx
filed it Motion to Remand. (ECF No. 11.) 340Basics opposes
the motion. (ECF No. 14.)
notice of removal of a civil action must be filed by a
defendant within thirty (30) days of receiving the complaint.
28 U.S.C. § 1446(b)(1). However, where it is not evident
from the face of the complaint that a case is removable,
“a notice of removal may be filed within thirty [(30)]
days after receipt by Defendants . . . of a copy of an
amended pleading, motion, order or other paper from which it
may be first ascertained that the case is one which is or has
become removable.” 28 U.S.C. § 1446(b)(3).
the removal of an action, a plaintiff may challenge such
removal by moving to remand the case back to state court. 28
U.S.C. § 1447. Grounds for remand include: “(1)
lack of district court subject matter jurisdiction or (2) a
defect in the removal process.” PAS v. Travelers
Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). A motion for
remand on the basis of a procedural defect in the removal
must be filed within thirty (30) days of the notice of
removal, 28 U.S.C. § 1447(c), whereas “a motion to
remand based on lack of subject matter jurisdiction may be
made at any time before final judgment, ” Foster v.
Chesapeake Ins. Co., 933 F.2d 1207, 1212-13 (3d Cir.
1991) (citing 28 U.S.C. § 1447(c)).
party asserting jurisdiction bears the burden of showing that
at all stages of the litigation the case is properly before
the federal court.” Samuel-Bassett v. KIA Motors
America, Inc., 357 F.3d 392, 396 (3d Cir.
2004). Federal courts rigorously enforce the congressional
intent to restrict federal diversity jurisdiction, and
therefore removal statutes are “strictly construed
against removal” and “doubts must be resolved in
favor of remand.” Id. at 396-403.
Additionally, when a case is removed, “all defendants
who have been properly joined and served must join in or
consent to the removal of the action.” 28 U.S.C. §
argues the case must be remanded, because there is no
diversity of citizenship and subject matter jurisdiction is
therefore not proper under 28 U.S.C. § 1332. (ECF No. 11
at 1.) PharmaRx argues, while it believed at the time it
filed the Complaint that 340Basics was a Delaware corporation
with its principal place of business in New York, it
discovered 340Basics is a New Jersey
corporation. (Id.) Pursuant to 28 U.S.C.
§ 1332(c)(1), a corporation is “deemed to be a
citizen of any State by which is has been
argues jurisdiction is proper, because the New Jersey entity,
“340Basics, Inc.” was not a party to the
Agreement. (ECF No. 14 at 2-3.) 340Basics claims the name
340Basics, Inc. is a d/b/a of 340B Technologies, Inc.
(“340B Technologies”), which is a Delaware
corporation formed in August 2014 to acquire and operate
certain assets of 340 Basics, Inc. (Id. (citing
Decl. of Colleen DiClaudio in Opp. to Pl.'s Mot. to
Remand (ECF No. 15) ¶¶ 3-4).) 340Basics asserts any
references to 340Basics, Inc. in documents that pre-date
August 2014 refer to the New Jersey entity, while any
references to 340Basics, Inc. post-August 2014 refer to 340B
Technologies, by use of their d/b/a name. (ECF No. 15
¶¶ 5, 6.)
the Agreement was executed after the creation of 340B
Technologies, the Court finds 340Basics has not met its
burden of showing jurisdiction is proper. See
Samuel-Bassett, 357 F.3d at 396 (“The party
asserting jurisdiction bears the burden of showing that at
all stages of the litigation the case is properly before the
federal court.”). The Agreement inexplicably refers to
“340Basics, Inc.” as a Delaware corporation
located in New York, without mention of 340B Technologies,
and contains 340Basics, Inc. letterhead. (ECF No. 11 Ex. 1.)
In fact, the name “340B Technologies” did not
appear in this litigation until 340Basics mentioned the
entity in its Opposition Brief to PharmaRx's Motion. To
the extent the Agreement is ambiguous as to which entity is
the proper party, that ambiguity must be construed against
340Basics. Jacobson v. Sassower, 489 N.E.2d 1283,
1282 (N.Y. 1985) (“In cases of doubt or ambiguity, a
contract must be construed most strongly against the party
who prepared it.”).
340Basics filed 340B Technologies' Certificate of
Incorporation (ECF No. 15 Ex. A), but it has not provided:
any evidence that 340 Basics, Inc. is no longer a going
concern, sufficient evidence that 340B Technologies was party
to the Agreement, or sufficient evidence regarding the
parties' relationship. For example, to the extent 340
Basics, Inc. remains a going concern, it could be deemed a
subsidiary of 340B Technologies and would therefore be
“a separate entity from its parent corporation . . .
[and] have its own principal place of business.”
Quaker State Dyeing & Finishing Co. v. ITT Terryphone
Corp., 461 F.2d 1140, 1142 (3d Cir. 1972) (citing 1
Moore's Fed. Practice 717.10, § 0.77 [1.-2]). In
view of this uncertainty, the Court finds removal is not
proper. See Brown v. ...