United States District Court, D. New Jersey
MICHAEL J. DENNIN THE LAW OFFICE OF VINCENT J. CIECKA On
behalf of Plaintiff
A. BAYER KANE PUGH KNOELL TROY & KRAMER, LLP On behalf of
Defendants First Transit, Inc., First Student Inc., New
Jersey Transit, Carl S. Watts, Theresa D. Watts, and
Administrator for the Estate of Carl S. Watts
L. HILLMAN, U.S.D.J.
a personal injury action arising from a June 18, 2013
accident in which Plaintiff was injured after being struck by
the side mirror of a vehicle. Plaintiff filed a complaint in
this matter on June 16, 2015 in the New Jersey Superior
Court, Law Division. Among the named defendants were New
Jersey Transit and Carl S. Watts - both of whom it appears
are non-diverse from Plaintiff. Defendants filed a Notice of
Removal on September 13, 2017 alleging that there is complete
diversity between the parties “result[ing] from (i) the
fraudulent joinder of Defendant, New Jersey Transit, and (ii)
the death of former Defendant, Carl Watts” and that
this Court has subject matter jurisdiction over this matter
pursuant to 28 U.S.C. § 1332. Plaintiff filed a Motion
to Remand on November 7, 2017.
claim removal is proper because New Jersey Transit was
fraudulently joined and Watts died within thirty days before
the filing of the Notice of Removal, citing 28 U.S.C. §
1446(b)(3). 28 U.S.C. § 1446(b)(3) provides:
Except as provided in subsection (c), 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
28 U.S.C. § 1446(c)(1) states that, for removal based on
diversity of citizenship, “[a] case may not be removed
under subsection (b)(3) on the basis of jurisdiction
conferred by section 1332 more than 1 year after commencement
of the action, unless the district court finds that the
plaintiff has acted in bad faith in order to prevent a
defendant from removing the action.” Defendants'
filed their Notice of Removal over two years after the
commencement of this action in state court in 2015.
Petition in Support of the Notice of Removal argues Plaintiff
exhibited bad faith by suing Watts “against whom it is
now clear she never intended to prosecute a claim.”
Defendants argue including Watts as a defendant was done in
bad faith “as Watts was an employee of First Transit,
whom First Transit admitted was acting in the course and
scope of his employment.” Defendants allege this was
“confirm[ed]” by “Plaintiff's failure
to indicate any intention to raise an estate for Watts to
substitute as a party defendant” at the time of the
purported removal. Defendants argue “Plaintiff's
willingness now to not proceed against the estate of Watts -
the only Defendant who conferred state court venue - can only
be taken as evidence that Watts was an unnecessary party and
his inclusion was in bad faith.” The Court is not
convinced that Plaintiffs acted in bad faith to prevent
Defendants from removing this action. The Court has been
advised that Watts died on August 18, 2017 and that
Plaintiffs were made aware of his passing on September 6,
If any person dies intestate, administration of the
intestate's estate shall be granted to the surviving
spouse or domestic partner of the intestate, if he or she
will accept the administration, and, if not, or if there be
no surviving spouse or domestic partner, then to the
remaining heirs of the intestate, or some of them, if they or
any of them will accept the administration, and, if none of
them will accept the administration, then to any other person
as will accept the administration.
If the intestate leaves no heirs justly entitled to the
administration of his estate, or if his heirs shall not claim
the administration within 40 days after the death of the
intestate, the Superior Court or surrogate's court may
grant letters of administration to any fit person applying
days after Watts' death was September 27, 2017. Soon
after the expiration of this forty-day period, on October 19,
2017, it appears Plaintiff moved for an administrator to be
appointed over Watts' estate. An order was entered by the
state court on October 26, 2017 in response to this motion.
Court discerns no bad faith here. First, the Court is
cognizant that “[r]emoval statutes ‘are to be
strictly construed against removal and all doubts should be
resolved in favor of remand.'” A.S. v.
SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir.
2014) (quoting Batoff v. State Farm Ins. Co., 977
F.2d 848, 851 (3d Cir. 1992)). “[A] removing party who
contends that the plaintiff acted in bad faith to prevent
removal bears a ‘heavy burden of persuasion . . .
.'” Plaxe v. Fiegura, No. 17-1055, 2018 WL
2010025, at *3 (E.D. Pa. Apr. 27, 2018) (quoting Boyer v.
Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).
on the allegations of the Complaint, it appears clear that
Watts was not named as a defendant in bad faith - indeed, it
is alleged he was the driver of the vehicle that struck
Plaintiff. That no relief might ultimately come from Watts
does not mean Watts was included in the lawsuit in bad faith.
Further, clearly Watts' death was not a matter within the
control of Plaintiff, nor was the forty-day period imposed by
New Jersey law before Plaintiff could seek an administrator
over the estate. Plaintiff acted promptly in making a motion
for the appointment of an administrator and soon after in
November 2017 ...