United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
matter is before the Court on a motion to dismiss the Amended
Complaint pursuant to Fed.R.Civ.P. 12(b)(6), filed by
Defendants and on Plaintiff's Motion to Remand. For the
reasons articulated below, this Court will remand the matter
to the Superior Court of New Jersey.
filed a two-count complaint against her employer Littman
Jewelers and its managers Scott Gudaitis
(“Gudaitis”) and Jim Schofield
(“Schofield”) alleging retaliation and
discrimination under the Conscientious Employee Protection
Act (“CEPA”) N.J.S.A. § 34:19-3 and the New
Jersey Law Against Discrimination (“NJLAD”)
N.J.S.A. § 10:5-12(d) in the New Jersey Superior Court.
Invoking diversity jurisdiction, 28 U.S.C. § 1332(a)(1),
Defendants removed the case to this Court on August 10, 2018.
See 28 U.S.C. § 1441(a), (b). “A civil
action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action is brought.” 28 U.S.C. §
is no dispute that the individual Defendants are both
citizens of New Jersey and that their presence in this matter
defeats diversity jurisdiction. Defendants claim that these
defendants were fraudulently joined for the purpose of
defeating jurisdiction and move to dismiss them from the
action on that basis and because service was not properly
made upon these defendants at the time of removal.
aver that service upon both Gudaitis and Schofield was
improper and untimely under both the federal and New Jersey
Rules governing service. Specifically, Plaintiff has failed
to properly serve both individual defendants. On July 12,
2018, service was attempted by dropping off service papers
with a third party at their place of employment.
Littman's counsel notified Plaintiff of the inadequate
service and during a status conference with the magistrate
judge on September 18, 2018, the parties discussed the lack
of proper service. The Court instructed Plaintiff's
counsel to properly serve the Individual Defendants.
on October 10, 2018, Plaintiff filed an Amended Complaint
with leave of Court. Cert. of D. Rebecca Higbee, ¶ 7. A
“corrected” Amended Complaint was filed on
November 6, 2018 to include an omission of one of the
defendants. It appears timely service was made upon Gudaitis
on November 8, 2018 and on Schofield on December 3, 2018.
[Dkt. Nos. 17, 21]. Even if service was made out of time,
Defendant Littman filed its Answer on November 6, 2018 and
both individual Defendants filed an Answer on December 21,
Rule of Civil Procedure 12(b)(6) allows a party to move for
dismissal of a claim based on “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should be dismissed pursuant to Rule
12(b)(6) if the alleged facts, taken as true, fail to state a
claim. Fed.R.Civ.P. 12(b)(6). When deciding a motion to
dismiss pursuant to Rule 12(b)(6), ordinarily only the
allegations in the complaint, matters of public record,
orders, and exhibits attached to the complaint, are taken
into consideration. See Chester County Intermediate
Unit v. Pa. Blue Shield, 896 F.2d 808, 812 (3d Cir.
1990). It is not necessary for the plaintiff to plead
evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434,
446 (3d Cir. 1977). The question before the Court is not
whether the plaintiff will ultimately prevail. Watson v.
Abington Twp., 478 F.3d 144, 150 (2007). Instead, the
Court simply asks whether the plaintiff has articulated
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
to Fed.R.Civ.P. 12 (b) (5), a party must assert any defense
for improper service of process in its responsive pleading,
but may additionally assert a defense by motion for
insufficient service of process. Fed.R.Civ.P. 12 (b) (5);
see also Micklus v. Carlson, 632 F.2d 227 (3d Cir.
1980) (holding that dismissal of an action was appropriate
where service was effectuated improperly). Defendants'
bear the burden of challenging the validity of service.
Individual Defendants' Answers do not contain a defense
based on improper or untimely service of process of the
Amended Complaint. Grand Entm't Group v. Star Media
Sales, 988 F.2d 476, 488 (3d Cir. 1993).
Court finds that given the Answers by the individual
Defendants and lack of challenge to proper service, the Court
is without subject matter jurisdiction because the parties
are not diverse. Defendants' allegation of fraudulent
joinder falls short as there appears to be a
“reasonable basis in fact or colorable ground
supporting the claim against the joined defendant[s],
[and/]or [a] real intention in good faith to prosecute the
action against the defendant[s.]” Abels v. State
Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)
(citation and quotation marks omitted)
result, the Court cannot consider the motion to dismiss of
the Defendants, and “[i]f at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c); Boyer v. Snap-on Tools Corp.,
913 F.2d 108, 111 (3d Cir. 1990).
appropriate Order shall issue.
 “Because a party who urges
jurisdiction on a federal court bears the burden of proving
that jurisdiction exists, a removing party who charges that a
plaintiff has fraudulently joined a party to destroy
diversity of jurisdiction has a ‘heavy burden of
persuasion.'” Boyer v. Snap-on Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990) (citation
omitted). “[J]oinder is fraudulent where there is no
reasonable basis in fact or colorable ground supporting the
claim against the joined defendant, or no real intention in
good faith to prosecute the action against the defendant or
seek a joint judgment. . . . If there is even a possibility
that a State court would find that the complaint ...