United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
MATTER comes before the Court upon Plaintiff Eleanor
Petardi's motion to remand, filed on November 1, 2018.
ECF No.  (“Motion”). There was no oral
argument pursuant to Federal Rule of Civil Procedure 78(b).
For the reasons set forth below, the Motion is
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
a slip-and-fall case. On November 21, 2016, Plaintiff, a
resident of Florida, was at a bowling alley located in
Hopelawn, New Jersey when she tripped over a bowling bag. ECF
No. [1-3] at 1-3, 5-6. The bowling alley is allegedly owned,
managed, and maintained by Majestic Lanes, Inc.; Majestic
Bowl, Ltd.; and Crown Associates (together, the
“Majestic Defendants”), and individual Lou
Gaudia. The Majestic Defendants are New Jersey corporations
and Defendant Gaudia is a resident of New Jersey.
result of the fall, Plaintiff was seriously hurt. Plaintiff
alleges damages of $2, 000, 000 based on her injuries which
included a fractured femur, fractured radius, ankle injury,
and knee stiffness, all of which required four surgeries and
steroid injections. Id. ¶ 15; see also
[1-3] at 15. Based on these facts, Plaintiff alleges two
counts of negligence, one against the Majestic Defendants and
one against Defendant Gaudia. See generally, id.
initially filed her two-count complaint in Superior Court in
Middlesex County on October 30, 2018. Id. On or
about the day of filing, Plaintiff provided defendants with a
courtesy copy of the complaint. ECF No.  at 2. Two days
later, Defendant Gaudia removed the action to this Court with
the consent of his co-defendants. See ECF No. ,
, & . The Defendants were subsequently served on
November 28 and 29, 2018. On November 30, 2018, Plaintiff
filed the instant Motion.
Motion, Plaintiff argues that the “forum defendant
rule” precludes removal of this action. ECF No.  at
3-4 (citing 28 U.S.C. § 144(b)(2)). According to
Plaintiff, Defendants may not avoid the rule-which restricts
removal from state court by in-state defendants-by removing
prior to service. Id. at 4-6. The Majestic
Defendants and Defendant Gaudia filed separate oppositions.
ECF Nos.  & . In the oppositions, Defendants
argue that the case was properly removed prior to service
under Encompass Ins. Co. v. Stone Mansion Restaurant,
Inc., 902 F.3d 147 (3d Cir. 2018) and the “forum
defendant” rule cited by Plaintiff does not apply here.
reply, Plaintiff argues, for the first time, that this case
was not properly removed because Plaintiff did not receive
“written consent” of removal by Defendant Crown
Associates. ECF No. . Defendants were permitted to file a
sur-reply and averred that Crown Associates is a now-defunct
entity which has certain principals in common with the other
Majestic Defendants. ECF No. [19-2]. Defendant further argues
that Crown Associates is represented by the same counsel as
the Majestic Defendants, was never properly served with the
complaint, and in any event, consents to removal.
courts are courts of limited jurisdiction, and to exercise
jurisdiction the District Court must have either federal
question or diversity jurisdiction. 28 U.S.C. §§
1331-1332. At issue here is only the latter. Pursuant to 28
U.S.C. § 1332(a)(1), a federal district court may
exercise diversity jurisdiction when there is diversity of
citizenship between the parties and the amount in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs. Id. § 1332(a)(1). To satisfy the
jurisdictional requirements of 28 U.S.C. § 1332(a)(1)
such diversity “must be complete; that is, no plaintiff
can be a citizen of the same state as any of the defendants.
Midlantic Nat. Bank v. Hansen, 48 F.3d 693, 696 (3d
Cir. 1995) (citations omitted). The Court determines
diversity by examining the citizenship of the parties at the
time the complaint was filed. Id. (citation
filed in state court may be removed to federal court if the
federal court has subject matter jurisdiction. 28 U.S.C.
§ 1441. The general removal statute provides:
Except as otherwise expressly provided by Act of Congress,
any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
28 U.S.C. § 1441(a). However, “[w]here federal
jurisdiction is premised only on diversity of the parties,
the forum defendant rule applies.” Encompass Ins.
Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 151-52
(3d Cir. 2018), reh'g denied (Sept. 17, 2018).
Under that rule, “[a] civil action otherwise removable
solely on the basis of [diversity jurisdiction] 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.” Id. § 1441(b)(2). The
Third Circuit has recently observed that this rule has long
been considered “procedural rather than jurisdictional,
except where the case could not initially have been filed in
federal court.” Encompass, 903 F.3d at 152
(quoting Korea Exch. Bank, N.Y. Branch v. Trackwise Sales
Corp., 66 F.3d 46, 50 (3d Cir. 1995).