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.
APPEARANCES: ROBERT L. SALDUTTI REBECCA K. MCDOWELL SALDUTTI
LLC On behalf of Plaintiff
TERENCE J. SWEENEY 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. On November 20, 2017, Plaintiff filed a motion to
remand the action, arguing that the removal was
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,
Plaintiff argued that the removal was untimely.
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.
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.
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
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.)
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,  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).
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.
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