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Pelle v. Dial Industrial Sales

United States District Court, D. New Jersey, Camden Vicinage

April 8, 2019

JOSEPH PELLE, Plaintiff,
v.
DIAL INDUSTRIAL SALES, et al., Defendants.

          KANE & SILVERMAN Joseph Monaco, Esq. Counsel for Plaintiff

          HILL WALLACK LLP Suzanne M. Marasco, Esq. Christina L. Saveriano, Esq. Counsel for Defendant Regal Ideas, Inc.

          OPINION

          Renée Marie Bumb, U.S.D.J.

         Plaintiff Joseph Pelle brings this diversity products liability suit asserting that he suffered severe injuries when he fell from an allegedly defective ladder. He has named 15 companies as Defendants. One of those Defendants, Regal Ideas, Inc., removed this suit from New Jersey Superior Court, Atlantic County. Plaintiff presently moves to remand this suit asserting a defect in removal procedure-- namely, violation of the rule of unanimity, 28 U.S.C. § 1446(b)(2)(A), which requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action.”[1] For the reasons set forth herein, the Motion to Remand will be granted.

         I.

         Plaintiff filed the Complaint in New Jersey Superior Court on June 8, 2018. Defendants “The Hartford” and Hartford Casualty Insurance Company (collectively, “The Hartford Defendants”) were served with process on June 14, 2018. Defendant Regal Ideas was served with process on July 17, 2018.[2]Regal Ideas filed the Notice of Removal on August 15, 2018. The Notice of Removal is silent as to whether any defendant other than Regal Ideas consented to removal.

         Plaintiff filed his first Motion to Remand on August 31, 2018. In accordance with this Court's Individual Rules and Procedures, the Motion was administratively terminated pending a teleconference with counsel for the appearing parties[3] concerning the issues raised in the Motion. During the conference, which was held on September 26, 2018, counsel for the Hartford Defendants orally represented to the Court that the Hartford Defendants consented to the removal of this case.

         Plaintiff re-filed his Motion to Remand on September 28, 2018. Only Regal Ideas has filed opposition to that Motion. On October 15, 2018 the Hartford Defendants filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), asserting that the Complaint fails to state a claim against them.[4]

         II.

         “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C.A. § 1447(c).

         “Removal is a statutory right, and the procedures to effect removal must be followed.” Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). The removing defendant (or defendants) bears the burden of showing that the case is properly before the federal court. Federico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007).

         III.

         Section 1446(b)(2)(A) states that “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).[5] The consent must be in writing, and may be included either in the Notice of Removal or a separate filing with the Court. Baldy v. First Niagara Pavilion, C.C.R.L., L.L.C., 149 F.Supp.3d 551, 557 (W.D. Pa. 2015).[6] It is undisputed that the Hartford Defendants have not, at any time, consented in writing to removal.[7] Thus, the rule of unanimity has been violated, and this case must be remanded, unless an exception applies. The Third Circuit recognizes three exceptions to the rule of unanimity. A defendant is not required to consent to removal if that defendant is: (1) “an unknown or nominal party”; (2) “fraudulently joined”; or (3) an unserved, “non-resident defendant.” Balazik v. Cty. of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995). It is undisputed that the Hartford Defendants have been served. Thus, exception three may be eliminated as an option that would save this case from remand.

         Regal Ideas argues that the Hartford Defendants were fraudulently joined and therefore their consent to removal is not required (exception two). First, the Court notes that the Hartford Defendants themselves, who have moved to dismiss the claims against them, do not assert that they were fraudulently joined. Second, Regal Ideas' argument misconstrues the concept of fraudulent joinder. Fraudulent joinder is the joining of a defendant with “no real connection with the controversy” for the purpose of defeating diversity of citizenship. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); see also, Hogan v. Raymond Corp., 536 Fed.Appx. 207, 210 (3d Cir. 2013) (“The fraudulent joinder doctrine permits courts to ignore the citizenship of a non-diverse defendant for diversity purposes if the plaintiff's joinder of that defendant is ‘fraudulent.'”). The Hartford Defendants are diverse from Plaintiff[8], thus it cannot be that they were joined by the Plaintiff in an effort to defeat diversity of citizenship; their inclusion as defendants has no effect on the diversity that exists between Plaintiff and the 15 named Defendants. Rather, Regal Ideas, citing the Hartford ...


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