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Infinity Staffing Solutions, LLC v. Paramount Conversions, LLC

United States District Court, D. New Jersey

May 10, 2018

INFINITY STAFFING SOLUTIONS, LLC, doing business as LYNEER STAFFING SOLUTIONS, Plaintiff,
v.
PARAMOUNT CONVERSIONS, LLC and RICHARD A. GREENLEE, Defendants.

          ROBERT L. SALDUTTI REBECCA K. MCDOWELL SALDUTTI LLC On behalf of Plaintiff

          TERENCE J. SWEENEY DANIEL JOSEPH DEFIGLIO KERRI E. CHEWNING ARCHER & GREINER PC ONE CENTENNIAL SQUARE HADDONFIELD, N.J. 08033 On behalf of Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         On November 1, 2017, Defendant George Richard Greenlee, Jr., [1] removed the complaint of Plaintiff, Infinity Staffing Solutions, LLC d/b/a Lyneer Staffing Solutions, to this Court.[2]Plaintiff has filed a motion to remand the action because the removal was untimely.[3]

         In his motion, Plaintiff claims that Defendant Paramount Conversions, LLC was properly served on September 25, 2017 and Greenlee was properly served on September 26, 2017. Plaintiff further argues that the removal effected on November 1, 2017 was therefore out of time because under 28 U.S.C. § 1446(b)(1), the “notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading[.]” Since Paramount's 30-day period expired on October 25, 2017 and Greenlee's 30-day period expired on October 26, 2017, [4] the argument goes, the removal is untimely.

         Greenlee has opposed Plaintiff's motion, arguing that Plaintiff has never properly served him and his purported awareness of Plaintiff's suit by way of service on Paramount alone does not trigger the 30-day period found in § 1446(b)(1). Accordingly, Greenlee argues the removal is not untimely, citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999) (“[W]e hold that a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise, ' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.”)(emphasis added).

         This procedural state of affairs begs a question not addressed in Greenlee's removal petition and brief opposing the motion to remand. While it seems incontrovertible that the 30 day period begins to run from formal service and not mere notice of the complaint or receipt of a copy, it does not necessarily follow from that holding that a defendant who has not been served nonetheless has a right to remove. Stated differently, Murphy Bros. tells us when the clock ends (i.e. 30 days after formal service) but it does not tell us when the clock begins to tick. The removal petition here may or may not be untimely[5] but it may also not be ripe.

         There are several reasons for this potential outcome. First, there is the plain language of the statute itself which can be read to provide for a mandatory condition precedent - that is that the time to file a removal petition does not accrue until the event the statute describes, i.e. service: “[N]otice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading[.]” We think it obvious that if Congress intended for a defendant who has not been served to be able to wrest a case away from a state court it could have easily done so with simple and straightforward language nowhere to be found in 28 U.S.C. § 1446.[6]

         Second, there would appear to be principled reasons why only a served defendant may remove since a removal petition invokes the Court's jurisdiction. Ordinarily, the Court may only exercise its jurisdiction over parties properly before it. Murphy Bros., 526 U.S. at 350 (“[A]bsen[t] [] service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant[].”). We do not mean to suggest that a removing defendant waives, for example, a defense of lack of personal jurisdiction but waiving a defense of improper service (although an admittedly similar defense) seems less draconian as applied to a defendant who seeks to deny a plaintiff his chosen forum through a volitional Notice of Removal.[7]

         Third, attaching the 30-day time period to the act of service allows for the federal court to easily calculate the accrued time, assess compliance with the statute, furthers the statutory goals in complicated cases, and minimizes uncertainty in the state court proceedings.[8]

         Lastly, interpreting the statute to require service before removal discourages gamesmanship by setting clear parameters of accrual and wavier. The Court notes that this is a two defendant case. One defendant is Paramount, an LLC. Paramount has two members. One member, the Removal Notice acknowledges, is Greenlee, who the Notice also acknowledges is Paramount's “manager.” (Docket No. 1 at 3.) Paramount has also consented to removal, has not contested service, and it appears that the time for Paramount to remove expired before the Notice of Removal was filed.

         It seems likely to this Court, therefore, that Greenlee had notice of this matter more than 30 days before he filed his Notice of Removal. This Court will of course follow Murphy Bros. but it appears to be Greenlee's view that he has an inchoate right of removal exercisable at any time up to 30 days after service is finally effected. This seems inconsistent with a statutory scheme apparently designed to resolve these issues expeditiously and with certainty - one which gives each defendant 30 days, and no more than 30 days, to choose a forum.[9]

         To be clear, this Court express no view on the proper interpretation of § 1446 under these facts. We raise these issues not to decide them on the present record but because the present record is inadequate to resolve them. Greenlee's Notice of Removal and opposing brief simply says, in essence, he is not too late to the party because the party hasn't started yet.[10] We think more explication is required.

         As the removing party, Greenlee bears the burden of showing that the federal court has jurisdiction to hear the case, and this Court must strictly construe the removal statutes and resolve all doubts about removal in favor of remand. Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). We believe, therefore, that if Greenlee contests service he must establish the legal basis by proper citation to case law or statute that permits an unserved defendant to remove a case when he was not yet within the state court's jurisdiction. See Ware v. Wyndham Worldwide Inc., 2010 WL 2545168, at *2 (D.N.J. 2010) (citing In re Notice of Removal by William Einhorn, 481 F.Supp.2d 345, 347-48 (D.N.J. 2007)) (providing that until formally served and brought under a court's authority, that person is not a defendant, but is simply a non-party that lacks standing to remove, and that the pivotal question is whether, and at what point, the defendant became the defendant and thereby ...


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