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Centennial Mill by Del Webb Community Association, Inc. v. Ply Gem Holdings, Inc.

United States District Court, D. New Jersey

June 22, 2018

CENTENNIAL MILL BY DEL WEBB COMMUNITY ASSOCIATION, INC., Plaintiff,
v.
PLY GEM HOLDINGS, INC., PLY GEM INDUSTRIES, INC., MASTIC HOME EXTERIORS, INC., and MW MANUFACTURERS, INC., successor to PATRIOT VINYL CORPORATION, d/b/a PATRIOT VINYL WINDOWS AND DOORS, Defendants.

          DAVID R. DAHAN JULIE M. MURPHY HYLAND LEVIN LLP On behalf of Plaintiff

          BROOKS HOWARD LEONARD MICHAEL J. ROSSIGNOL RIKER DANZIG SCHERER HYLAND PERRETTI LLP On behalf of Defendants

          STEVE M. PHARR (pro hac vice) PATRICK T. VANDERJEUGDT (pro hac vice) PHARR LAW, PLLC On behalf of Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Before the Court is Plaintiff's Motion to Remand based on a forum selection clause in a Settlement Agreement entered into between the parties in conjunction with previous litigation in the New Jersey Superior Court, Law Division. Also before the Court is Defendants' Motion to Seal, which is opposed by Plaintiff. For the reasons that follow, the Court will deny both the Motion to Remand and the Motion to Seal.

         I.

         Plaintiff's July 10, 2017 Complaint contains the following allegations. On August 19, 2011, Jerry and Iris Schechtman brought suit against Plaintiff in the Superior Court of New Jersey, Law Division. Plaintiff, in turn, filed a Third-Party Complaint against Defendants. This litigation related to damage to the vinyl siding covering certain homes in the Centennial Mill community, caused by a phenomenon known as “thermal distortion.”[1]

         On March 3, 2014, Plaintiff and Defendants entered into a Settlement Agreement, which provided that Defendants would replace certain window units causing the thermal distortion to the siding of certain homes. However, after the Settlement Agreement, thermal distortion occurred at other locations. Despite requests from Plaintiff, Defendants have not addressed these defects.

         Plaintiff's Complaint asserts twelve counts against Defendants. This matter was removed to this Court on September 29, 2017. Plaintiff filed its Motion to Remand on October 27, 2017. Defendants filed their Motion to Seal on November 28, 2017.

         II.

         This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Plaintiff is a New Jersey corporation with its principal place of business in New Jersey. Defendant Ply Gem Holdings is a Delaware corporation with its principal place of business in North Carolina. Defendant Ply Gem Industries is a Delaware corporation with its principal place of business in North Carolina. Defendant Mastic Home is a Delaware corporation with its principal place of business in Missouri. Defendant MW Manufacturers is a Delaware corporation with its principal place of business in Virginia. As there is complete diversity between the parties and Defendants' Notice of Removal states there is an amount in controversy in excess of $75, 000, exclusive of interest and costs, this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.

         III.

         It is well-settled “that the party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). “Removal is strictly construed and all doubts are resolved in favor of remand.” Salibelo Consulting Assocs., LLC v. Shenfeld, No. 10-4162, 2010 WL 5466848, at *3 (D.N.J. Dec. 30, 2010) (citing Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004)), adopted by 2011 WL 317757 (D.N.J. Jan. 28, 2011).

         “[A] valid forum selection clause constitutes a contractual waiver of a defendant's right to remove an action to federal court.” Id. (citing Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1216 (3d Cir. 1991)). When there is a valid forum selection clause, remand is “appropriate even if the language of the clause does not expressly bar removal.” Id. (citing Karl Koch Erecting Co. v. N.Y. Convention Ctr., Dev. Corp., 838 F.2d 656, 659 (2d Cir. 1988)).

         IV.

         Plaintiff asks the Court to remand this matter, arguing that a forum selection clause in an earlier Settlement Agreement between the parties is controlling. Defendants oppose, arguing the earlier Settlement Agreement was limited to an identified 296 window units, whereas this matter concerns ...


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