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Infinity Staffing Solutions, LLC v. Paramount Conversions, LLC

United States District Court, D. New Jersey

June 26, 2018



          TERENCE J. SWEENEY On behalf of Defendants


          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. On November 20, 2017, Plaintiff filed a motion to remand the action, arguing that the removal was untimely.[2]

         In its motion, Plaintiff contended that Defendant Paramount Conversions, LLC was properly served on September 25, 2017 and Greenlee was properly served on September 26, 2017. Plaintiff further argued 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, [3] Plaintiff argued that the removal was untimely.[4]

         Greenlee opposed Plaintiff's motion, arguing that because Plaintiff 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), the removal was not untimely.

         On May 10, 2018, this Court issued an Opinion and Order to Show Cause, denying Plaintiff's motion to remand without prejudice and directing Greenlee to file an amended notice of removal which established the legal basis that permits an unserved defendant to remove a case when he was not yet within the state court's jurisdiction. (Docket No. 19, 20.) The Court queried how, without a date of service on Greenlee, a waiver of service from Greenlee, or some other information about when Greenlee became aware of the action, the 30-day time period for removal could be calculated to determine whether the removal was timely.

         On May 23, 2018, Greenlee filed a response to the Court's Order. (Docket No. 21.) Greenlee maintains that a defendant who has never been properly served may remove an action from state court to federal court, and he cites two cases: Poznanovich v. AstraZeneca Pharmaceuticals LP, 2011 WL 6180026, at *1 (D.N.J. 2011) (noting that courts within this district and elsewhere are sharply split on the issue of pre-service removal, but ultimately concluding that an unserved defendant could remove a case); In Re Plavix Product Liability and Marketing Litigation, 2014 WL 4954654, at *4 (D.N.J. 2014) (noting the debate in this circuit and in courts across the country regarding the issue of removal prior to service upon a forum defendant, and holding that a non-forum defendant may remove a state court action to federal court notwithstanding the fact that the plaintiff has already joined - but not yet served - a forum defendant).

         On June 18, 2018, Plaintiff filed a second motion to remand, arguing that Greenlee's position is unsupportable and does not meet his burden of establishing the propriety of the removal. (Docket No. 23.)

         The Court agrees with Plaintiff. The two cases cited by Greenlee do not persuade the Court to interpret 28 U.S.C. § 1446(b)(1) to permit an unserved non-forum defendant, who is not joined with a forum defendant plaintiff did not serve, to remove a state court complaint to federal court. Unlike the situation here, those cases do not involve the issue of the timing of removal, [5] or concern a defendant who seeks to use the lack of service both as a sword (to deny a plaintiff his chosen forum) and as a shield (from liability because a court cannot exercise jurisdiction over an unserved defendant).

         As the Court previously noted, the U.S. Supreme Court explained in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999) that:

An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process. Accordingly, we 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.

Murphy Bros. also set-forth additional fundamental principles, including that (1) “service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant, ” (2) “[i]n the absence of 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, ” and (3) “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Murphy Bros., 526 U.S. at 350.

         Based on Murphy Bros. and the plain language of the removal statute, the Court reiterates its observations in the prior Opinion that the requirement of service before removal discourages gamesmanship by setting clear parameters of ...

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