United States District Court, D. New Jersey
CENTENNIAL MILL BY DEL WEBB COMMUNITY ASSOCIATION, INC., Plaintiff,
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.
R. DAHAN JULIE M. MURPHY HYLAND LEVIN LLP On behalf of
HOWARD LEONARD MICHAEL J. ROSSIGNOL RIKER DANZIG SCHERER
HYLAND PERRETTI LLP On behalf of Defendants
M. PHARR (pro hac vice) PATRICK T. VANDERJEUGDT (pro hac
vice) PHARR LAW, PLLC On behalf of Defendants
L. HILLMAN, U.S.D.J.
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.
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
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.
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.
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.
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).
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)).
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 ...