United States District Court, D. New Jersey
INFINITY STAFFING SOLUTIONS, LLC, doing business as LYNEER STAFFING SOLUTIONS, Plaintiff,
PARAMOUNT CONVERSIONS, LLC and RICHARD A. GREENLEE, Defendants.
L. SALDUTTI REBECCA K. MCDOWELL SALDUTTI LLC On behalf of
TERENCE J. SWEENEY DANIEL JOSEPH DEFIGLIO KERRI E. CHEWNING
ARCHER & GREINER PC ONE CENTENNIAL SQUARE HADDONFIELD,
N.J. 08033 On behalf of Defendants
L. HILLMAN, U.S.D.J.
November 1, 2017, Defendant George Richard Greenlee, Jr.,
removed the complaint of Plaintiff, Infinity Staffing
Solutions, LLC d/b/a Lyneer Staffing Solutions, to this
Court.Plaintiff has filed a motion to remand the
action because the removal was untimely.
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,
argument goes, the removal is untimely.
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).
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 but it may also not be ripe.
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.
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.
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.
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.
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
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. We think more explication is
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