United States District Court, D. New Jersey
STEVEN MITNICK, as assignee for the benefit of creditors of A.E. Seafood Distributions, Inc. d/b/a Oceanline Seafood, Plaintiff,
MARK FOODS, INC., NORTHERN WIND, INC., OCEAN EDGE FOODS, OCEAN GARDEN PRODUCTS, INC., PRIME SEAFOOD IMPORTS, ROYAL HUNAN SEAFOOD CORP., SEA LION INTERNATIONAL, INC., and SEAQUEST SEAFOOD CORP., Defendants.
REPORT AND RECOMMENDATION
DUNN WETTRE, UNITED STATES MAGISTRATE JUDGE
the Court is plaintiffs motion to remand this matter to the
Superior Court of New Jersey pursuant to 28 U.S.C.
§§ 1446 and 1447 and for attorney's fees. ECF
No. 6. Defendants oppose the motion. ECF No. 9. United States
District Susan D. Wigenton referred this motion to the
undersigned for a Report and Recommendation. This matter has
been decided without oral argument pursuant to Federal Rule
of Civil Procedure 78. Having considered the parties'
submissions, for the reasons set forth herein, this Court
recommends that the motion to remand be GRANTED.
this action in his capacity as Assignee for the Benefit of
Creditors of A.E. Seafood Distributors, Inc. d/b/a Oceanline
Seafood ("Oceanline Seafood") pursuant to N.J.S.A.
2A:19-3 to recover allegedly preferential transfers.
Plaintiff was designated Assignee for the Benefit of
Creditors of Oceanline Seafood by execution of a Deed of
Assignment on May 12, 2017. ECF No. 2-1 ¶ 1. Pursuant to
N.J. S. A. § 2A: 19-3, any preferential transfer of
property from an insolvent person within four months of that
person making a general assignment shall be void. The
Complaint alleges Oceanline Seafood made a number of payments
to defendants in this matter within the four months prior to
filing the Deed of Assignment, with the intent to prefer
those creditors. Plaintiff, therefore, seeks relief to avoid
the conveyance of those transfers and an entry of judgment in
favor of the Assignee against the defendants.
filed this action in the Superior Court of New Jersey, Law
Division, Union County, in October 2017 against twenty-eight
defendants. Of the twenty-eight named defendants, only a
subset of eight defendants filed a Notice of Removal in this
Court in December 2017, claiming federal question
jurisdiction, 28 U.S.C. § 1331. ECF Nos. 2, 2-1. In other
words, the entire action was not removed to this Court and
the Notice of Removal effectively split this matter, leaving
twenty defendants with this Complaint pending before them in
the Superior Court of New Jersey. See ECF No. 6 at
6. Defendants admit that twelve of the twenty non-removing
defendants were served before the Notice of Removal was
filed. See ECF No. 9 at 6.
moves to remand this action to the Superior Court of New
Jersey for failure to obtain consent of all served defendants
and for lack of subject matter jurisdiction. ECF No. 6.
Defendants oppose the motion. ECF No. 9.
statute, "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending." 28 U.S.C. § 1441(a). Section
1446, governing the procedure for removal of civil actions
requires, inter alia, that "[w]hen a civil
action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join
in or consent to the removal of the action." 28 U.S.C.
§ 1446(b)(2)(A). In other words, the rule of unanimity
requires that when there is more than one defendant in an
action, all properly joined and served defendants must
consent to removal. See Di Loreto v. Costigan, 351
Fed.Appx. 747, 752 (3d Cir. 2009).
moves to remand for defendants' failure to obtain the
consent of all served defendants pursuant to 28 U.S.C.
§§ 1446 and 1447 and for lack of subject matter
Court recommends that the District Court find the Notice of
Removal is improper because removal requires that an
entire action be removed, and not merely the claims
against a subset of defendants, and because the removal
violates the rule of unanimity. In fact, because not all
defendants sought to remove, the action below apparently
remains pending in the State Court, Section 1441 (a) provides
that "any civil action brought in a State
court... may be removed by the defendant or the
defendants." 28 U.S.C. § 1441(a) (emphasis added).
The statute governing removal procedure requires that
"all defendants who have been properly joined and served
must join in or consent to the removal of the action, "
28 U.S.C. A. § 1446(b)(2)(A), and that
[p]romptly after the filing of such notice of removal of a
civil action the defendant or defendants ... shall file a
copy of the notice with the clerk of such State court, which
shall effect the removal and the State court shall ...