United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE.
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.
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 ¶
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.
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 ¶
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 §
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).
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.
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).
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 ...