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Alexandre v. Costco Wholesale Corp.

United States District Court, D. New Jersey

May 21, 2019

MARIE ALEXANDRE, Plaintiff,
v.
COSTCO WHOLESALE CORPORATION, JOHN CUSANELLI, John Does 1-5 and Jane Does 1-5 factiously named managers(s) and employee s, ABC Maintenance Company 1-5, and ABC Companies 1-5, Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         This matter is presently before the Court on the motion of Plaintiff, Marie Alexandre, to remand the action to the Superior Court of New Jersey Law Division, Essex County and for an award of attorneys' fees. See Plaintiff's Motion to Remand, D.E. 5. The District Court referred this matter to the Undersigned to issue a Report and Recommendation. This Court has considered the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein, the Court respectfully recommends that the District Court grant Plaintiff's motion and remand this matter to the Superior Court of New Jersey Law Division, Essex County.

         II. Background

         Plaintiff, Marie Alexandre, is a New Jersey resident who resides in East Orange, New Jersey. Compl., D.E. 1, Exh. A, at 7. Defendant Costco Wholesale Corporation (“Costco”) is a Washington corporation with its principal place of business in Issaquah, Washington. Pet. for Removal, D.E. 1, at 2, ¶ 5. Defendant John Cusanelli (“Cusanelli”) is a New Jersey citizen and, on the date of the subject incident, was the General District Manager of Defendant Costco's store located at 1055 Hudson Street, Union, New Jersey. Cusanelli Cert., Mar. 18, 2019, D.E. 6-1, at ¶ 1.[1]

         Plaintiff commenced this action on January 15, 2019, in the Superior Court of New Jersey, Law Division, Essex County. See Civil Case Information Statement, D.E. 1, at 18. Plaintiff effectuated service on both Defendants Costco and Cusanelli on January 30, 2019. See Affidavits of Service, D.E. 5-5, at 1-3.

         Plaintiff alleges that on February 17, 2018, she-as a business invitee-fell on the floor of the public restroom of Defendant Costco's store due to the allegedly “dangerous and unsafe condition of the property.” Compl., D.E. 1, Exh. A, at ¶ 1. Plaintiff alleges that Defendants Costco and Cusanelli “caused, created, knew of, or should have known of” the alleged dangerous and unsafe condition. Id. Plaintiff further alleges that both Defendants negligently “maintained, owned, operated, controlled, supervised, repaired and/or inspected” the premises, thereby allowing the dangerous condition to exist. Id. at ¶ 3. According to Plaintiff, Defendants' negligence caused her to fall and suffer serious and permanent injuries. Id. at ¶ 5.[2]

         On February 20, 2019, Defendants removed this case from New Jersey Superior Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). See Notice of Removal, D.E. 1-1. In the Petition for Removal, Defendants contend that Plaintiff fraudulently joined Defendant Cusanelli to defeat diversity jurisdiction. Pet. for Removal, D.E.1, at 2, ¶ 6. Therefore, Costco argues, the Court should disregard his citizenship in its analysis under § 1332(a). Id.[3]

         On March 8, 2019, Plaintiff moved to remand this matter to the Superior Court of New Jersey, Law Division, Essex County. Pl. Mot. to Remand, D.E. 5. Plaintiff's motion also includes a request for attorneys' fees pursuant to 28 U.S.C. § 1447(c). On March 8, 2019, Defendants opposed Plaintiff's motion. Defs. Opp. to Mot. to Remand, D.E. 6. On March 25, 2019, Plaintiff replied to Defendants' opposition. Pl. Reply to Opp., D.E. 7. That same day, Defendants filed an unauthorized letter in response to Plaintiff's reply. Letter, March 25, 2019, D.E. 8. In the interests of resolving this motion, the Court has considered Defendants' unauthorized sur-reply. However, Defense counsel is reminded that “[n]o sur-replies are permitted without permission of the Judge or Magistrate Judge to whom the case is assigned.” L. Civ. R. 7.1(d)(6).

         III. Analysis

         As an initial matter, the Court notes that a decision to remand is dispositive. In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir. 1998) (“[A]n order of remand is no less dispositive than a dismissal order of a federal action for lack of subject matter jurisdiction where a parallel proceeding is pending in the state court.”). Accordingly, this Court addresses Plaintiff's motion via Report and Recommendation.

         A. Diversity

         The party seeking removal on the basis of diversity must demonstrate that the matter satisfies the requirements of removal under 28 U.S.C. § 1332(a) and 28 U.S.C. § 1441. When jurisdiction is predicated on diversity of citizenship under § 1332, it “requires satisfaction of the amount in controversy requirement as well as complete diversity between the parties, that is, every plaintiff must be of diverse state citizenship from every defendant.” In re: Briscoe, 448 F.3d 201, 215 (3d Cir. 2006). In most cases, if any plaintiff and any defendant share citizenship, complete diversity will be defeated. Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365 (1978); Grand Union Supermarkets of the Virgin Isl., Inc., v. H.E. Lockhart Mgmt., Inc., 316 F.3d 410 (3d Cir. 2003).

         Here, Plaintiff contends that Defendants' removal is jurisdictionally improper as a lack of complete diversity deprives the Court of subject matter jurisdiction. Defendants argue, however, that the fraudulent joinder exception applies as to ...


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