United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
before the Court is Plaintiff Steven D'Agostino's
Motion to Remand the case to the Superior Court of New
Jersey, Ocean County (ECF No. 6) and Defendants Domino's
Pizza, Inc., J&J Pizza, Inc., Jason and John Parmer's
Motion to Dismiss (ECF No. 8). For the reasons discussed
herein, Plaintiffs motion is denied, and Defendants'
motion is granted in part and denied in part.
matter arises from Defendant John and Jason Parmer's
wrongful termination of Plaintiff Steven D'Agostino. The
Parmers are sole owners of J&J Pizza, which operates a
Domino's Pizza franchise in Barnegat, New Jersey.
(Amended Complaint at ¶¶ 2-3). In September 2014,
Plaintiff was hired by J&J as a pizza delivery driver and
routinely delivered pizza in the Barnegat, New Jersey area.
(Id. at ¶ 5). Plaintiff claims that he
performed "dual jobs" with J&J; that is, in
addition to delivering pizza, he also worked at the pizzeria,
"making pizza boxes, taking food out of the oven,
hanging order slips, getting stuff out of the freezer."
(Id. at ¶ 7). When he was not delivering pizza,
Plaintiff claims he was paid below minimum wage, $5.15/ hour;
Plaintiff also claims that he regularly worked 12 to 14 hour
shifts, without receiving a break or being paid overtime.
(Id. at ¶¶ 10-11, 14).
after being hired, Plaintiff claims that Defendant John
Parmer accused Plaintiff of being a homosexual individual and
regularly directed homophobic epithets at him. (Id.
at ¶ 15). When Plaintiff addressed Defendant John Parmer
and "told [him] off, " Parmer responded by
"drastically reducing" his hours. (Id.).
January 2015, Plaintiff was hired as a full-time technician
with another company, but continued to deliver pizzas for
J&J on the weekends. (Id. at ¶ 17).
According to Plaintiff, in late February, there was a major
snowstorm and Defendant John Parmer threatened to fire any
drivers who did not come into work. (Id. at ¶
18). Plaintiff claims that he was one of the few drivers who
arrived for work and, due to the shortage of drivers, had to
make significantly more deliveries. (Id. at
¶¶ 19-20). During one round of deliveries,
Plaintiff drove over a large ditch in the road, which he
later discovered caused significant damage to his rear axle
and front wheel hub. (Id. at ¶¶ 22-24).
Although he continued to drive the car over the next few
days, by Friday, he claimed that his car was "virtually
undriveable." (Id. at ¶¶ 24-25).
his car was undriveable, Plaintiff contacted J&J and
notified them that he would be unable to deliver pizzas for a
few weeks, until his car was repaired. (Id. at
¶ 25). According to Plaintiff, J&J had "no
problem" with his situation because they had handled a
similar matter a few months earlier, when another
driver's car was in disrepair and was unable to deliver
pizzas for a few months. (Id. at ¶ 26). Once
the driver purchased another car, J&J "put [him]
right back on the schedule, with no problems."
(Id.). Such was not the case for Plaintiff. On March
25, 2015, after purchasing a new car, Plaintiff drove to
J&J to notify them that he could resume delivering pizzas
again. (Id. at ¶ 27). However, much to his
chagrin, when Plaintiff arrived at the pizzeria, he was
terminated for being absent for three weeks. (Id. at
¶ 29). Plaintiff maintains that he did not receive the
same treatment or leniency as the other driver who was unable
to work for several months. (Id. at ¶ 32).
March 27, 2017, Plaintiff filed his Original Complaint in New
Jersey Superior Court, alleging only state-law claims. (ECF
No. 8-5 at 2-6 "Original Complaint"). Thereafter,
on November 6, 2017, a New Jersey Superior Court judge
granted Plaintiffs motion to amend his complaint, which now
alleges claims under state and federal law. (ECF No. 1-2 at
12). Specifically, the Amended Complaint alleges violations
under the New Jersey Law Against Discrimination (LAD),
N.J.S.A. § 10:5-1, et. seq.\ underpaid wages
contrary to the Fair Labor Standards Act (FLSA), 29 §
U.S.C. 201-219, and New Jersey Minimum Wage Law (NJWML),
N.J.S.A. § 34:11-56a; negligence; and violation of the
New Jersey Consumer Fraud Act (NJCFA), N.J.S.A. §
56:8-2. Plaintiff claims that Defendants were served with the
proposed Amended Complaint on October, 12, 2017.
Nevertheless, on November 14, 2017, eight days after the
Superior Court judge granted Plaintiffs motion to amend,
Defendants removed the present matter to federal court,
pursuant 28 U.S.C. § 1441, since Plaintiffs Amended
Complaint alleges a federal cause of action under the Fair
Labor Standards Act. (ECF No. 1).
Remand to State Court
preliminary issue, Plaintiff seeks to remand the present
matter to state court, since Defendants failed to timely
remove to federal court within thirty days, as required under
28 U.S.C. 1447(b)(1). According to Plaintiff, because
Defendants were aware of Plaintiffs proposed Amended
Complaint on October 12, 2017, their notice of removal, made
on November 14, 2017, was untimely. Alternatively, Plaintiff
argues that Defendants should be barred from seeking removal,
since they did not seek to remove Plaintiffs Original
Complaint. Defendants contend the time to remove commenced on
November 6, 2017, the date when the Amended Complaint became
effective, and as such the removal was timely. The Court
action that has been removed to federal court can be remanded
to state court, pursuant to 28 U.S.C. § 1447(c), if the
removal procedure was defective. Section 1447(c) states, in
relevant part, that "[a] motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). According to the
Third Circuit, the "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 Am., Inc., 357 F.3d
392, 396 (3d Cir. 2004). Accordingly, on a motion to remand,
the burden of demonstrating a proper basis for removal
remains with the removing party. See Carroll v. United
Air Lines, 7 F.Supp.2d 516, 519 (D.N.J. 1998).
defendant may remove a claim from a state court to federal
district court if the district court has original
jurisdiction. See 28 U.S.C. § 1441(a). One
basis for original jurisdiction is federal question. Under 28
U.S.C. § 1331, federal courts have original jurisdiction
over "all civil actions arising under the Constitution,
laws, or treaties of the United States."
Plaintiff relies principally on 28 U.S.C. § 1446(b)(3),
in support of his contention that Defendants' removal was
untimely. Section 1446(b)(3) states:
if the case stated by the initial pleading is not removable,
a notice of removal may be filed within 30 days after receipt
by the defendant, through service or otherwise, of a copy of
an amended pleading, motion, order or other paper from which
it may first be ascertained that the case is one which is or
has become removable.
Id. Because Defendants were purportedly aware of
Plaintiff s Amended Complaint on October 12, 2017, Plaintiff
contends that their notice of removal was untimely since it
was filed on November 14, 2017, thirty-three days after
receipt of the Amended Complaint.
determining when a complaint becomes removable to federal
court, for purposes under 28 U.S.C. § 1447(c), courts in
this circuit have adopted the majority rule, which states,
"an amended complaint that would provide a basis for
subject matter jurisdiction does not become removable until
the motion to amend is granted and the amended complaint
becomes effective." McDonough v. UGL Unicco,
766 F.Supp.2d 544, 547 (E.D. Pa. 2011). This is also
consistent with majority of circuits that have also addressed
this issue. See Freeman v. Blue Ridge Paper Prods.,
551 F.3d 405, 409-10 (6th Cir. 2008); Savilla v. Speedway
Superamerica, LLC, 91 Fed.Appx. 829, 831-32 (4th Cir.
2004); Sullivan v. Conway, 157 F.3d 1092, 1094 (7th
Cir. 1998); Concordia Partners, LLC v. Pick, No.
14-09, 2014 U.S. Dist. LEXIS 112571, at *6 (D. Me. Aug. 14,
the Superior Court judge granted Plaintiffs motion to amend
his complaint on November 6, 2017. (ECF No. 1-2 at 12). As
such, the Amended Complaint became effective, at the
earliest, on that date. Therefore, guided by the majority
rule, the Court is satisfied that Defendant's removal was
timely, since it was made eight days after the Superior Court
granted Plaintiffs motion to amend. For these same reasons
Plaintiffs alternative argument that Defendants should be
barred from seeking removal since it did not seek removal of
the Original Complaint also fails. Because the original
complaint did not allege any federal claims, Defendants
lacked any basis for removal; however, when the Amended
Complaint, which includes a federal cause of ...