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Campbell v. United Parcel Service, Inc.

United States District Court, D. New Jersey

October 30, 2019


          MICHELLE J. DOUGLASS DOUGLASS LAW GROUP, LLC On behalf of Plaintiff

          JOSEPH C. DEBLASIO JACKSON LEWIS P.C. LUKE P. BRESLIN JACKSON LEWIS P.C. On behalf of Defendant United Parcel Service, Inc.


          NOEL L. HILLMAN, U.S.D.J.

         On September 7, 2017, Plaintiff, Michael Campbell, filed a complaint in New Jersey Superior Court, Atlantic County, against his former employer, Defendant United Parcel Service, Inc. (“UPS”), and five of his supervisors, Timothy McKeever, Kathleen Weiner, Jean Guillemette, Kelly Given, and Jill Hayes. Plaintiff, employed at a UPS distribution warehouse in Pleasantville, New Jersey, claimed retaliation for engaging in whistleblowing activities concerning safety violations and medical record falsifications, among other things, in violation of New Jersey's Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. (“CEPA"). On January 19, 2018, all defendants filed their answers and affirmative defenses to Plaintiff's complaint. On April 17, 2019, during a break in the deposition of a non-party witness, Plaintiff filed a voluntary dismissal of all of the individual defendants. All but one of the individual defendants were citizens of New Jersey.

         On May 7, 2019, UPS, the sole remaining defendant, filed a notice of removal of Plaintiff's complaint in this Court. The notice of removal averred that this Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) because Plaintiff is a citizen of New Jersey and UPS is a citizen of Delaware (state of incorporation) and Georgia (its principal place of business), and the amount in controversy exceeds $75, 000. The notice of removal also averred that the removal was timely because it was filed within 30 days “of receipt by it of a paper from which it could first be ascertained that this action is removable” - i.e., Plaintiff's April 17, 2019 voluntary dismissal of the non-diverse defendants. (Docket No. 1-1 at 2; 6-1 at 2.) See 28 U.S.C. § 1446(b)(3) (“Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”).

         On May 29, 2019, Plaintiff filed a motion to remand, which is currently pending before the Court. Plaintiff argues that UPS's removal was untimely because it was effected more than a year after the commencement of Plaintiff's action in state court, citing 28 U.S.C. § 1446(c)(1). Section 1446(c)(1) provides that for removal based on diversity of citizenship, “[a] case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” UPS filed its notice of removal one year and eight months after Plaintiff filed his complaint in state court.

         In opposition to Plaintiff's motion to remand, UPS argues that Plaintiff's joinder of the individual defendants was in bad faith, and the one-year bar therefore does not apply. UPS argues that Plaintiff “has neither alleged, nor testified to, facts that could lead a reasonable trier of fact to conclude that Plaintiff has satisfied” the heightened pleading standard under CEPA to hold the individual defendants liable. (Docket No. 8 at 4.) Because Plaintiff's claims fail substantively against the individual defendants, UPS argues that Plaintiff did not have a valid basis for asserting those claims against them in the first place, thus demonstrating bad faith.

         As set forth below, Defendant has failed to persuade the Court that Plaintiff acted in bad faith by bringing his claims against the individual defendants. Moreover, there is no showing that Plaintiff brought those claims specifically to defeat removal.

         The analysis of whether a plaintiff has acted in bad faith by joining a non-diverse defendant for the sole purpose of defeating removal of his case under § 1332(a) derives from the fraudulent joinder analysis, which is typically invoked while the allegedly fraudulently joined non-diverse defendant is still in the case. “When a non-diverse party has been joined as a defendant, then in the absence of a substantial federal question the removing defendant may avoid remand only by demonstrating that the non-diverse party was fraudulently joined.” Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (citations omitted). The removing party carries a “heavy burden of persuasion” in making this showing. Id. (citations omitted). (further explaining that “[i]t is logical that it should have this burden, for removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand”).

         “Joinder 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 defendants or seek a joint judgment.” Id. (quotations and citations omitted). “If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.” Id. (quotations, citations, and alterations omitted). Additionally, “where there are colorable claims or defenses asserted against or by diverse and non-diverse defendants alike, the court may not find that the non-diverse parties were fraudulently joined based on its view of the merits of those claims or defenses.” Id. (citations omitted).

         “[T]he inquiry into the validity of a complaint triggered by a motion to dismiss under Rule 12(b)(6) is more searching than that permissible when a party makes a claim of fraudulent joinder. Therefore, it is possible that a party is not fraudulently joined, but that the claim against that party ultimately is dismissed for failure to state a claim upon which relief may be granted.” Id. A district court errs if it converts its jurisdictional inquiry into a motion to dismiss. Id.

         Here, UPS takes great pains to articulate why Plaintiff's CEPA claims against each of the individual defendants are without merit. To support its arguments, UPS extensively cites to Plaintiff's deposition, as well as the deposition of one of the individual defendants.

         There are three major problems with UPS's efforts to prove Plaintiff's bad faith and therefore qualify for the exception to the one-year removal rule. First, UPS's arguments to challenge Plaintiff's claims against the individual defendants exceed even the prohibited Rule 12(b)(6) standard of review. This Court cannot analyze substantively the merit of Plaintiff's claims against the individual defendants through what amounts to a Rule 56 summary judgment standard of review to determine whether the individual defendants were joined to prevent removal. Moreover, unlike the typical fraudulent joinder analysis, these defendants are no longer in the case. For the Court to opine on the validity of claims against individuals who are not parties to the action would constitute an impermissible advisory opinion. If UPS believed that the individual defendants were included in the action improperly, it could have sought removal at any time during the almost two years that Plaintiff's claims against them were pending and argue fraudulent joiner to support removal and oppose remand.

         Second, UPS and the individual defendants filed their answers to Plaintiff's complaint on January 19, 2018, and proceeded through the discovery process for over a year and a half, including taking Plaintiff's deposition on December 10, 2018, Guillemette's deposition on February 11, 2019, and setting non-party witness depositions.[1] Plaintiff's claims against the individual defendants were ostensibly just as unmeritorious then as UPS contends they are now. The Court questions why the individual defendants filed an answer instead of moving to dismiss Plaintiff's claims against them, or move for summary judgment after Plaintiff's deposition, if Plaintiff's claims rise to the level of what UPS now argues constitutes bad faith. Instead, however, all defendants proceeded with discovery under a ...

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