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F.H. v. West Morris Regional High School Board of Education

United States District Court, D. New Jersey

October 30, 2019

F.H., et al., Plaintiffs,
v.
WEST MORRIS REGIONAL HIGH SCHOOL BOARD OF EDUCATION, Defendants.

          REPORT AND RECOMMENDATION

          LEDA DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is plaintiffs' motion on behalf of their daughter J.H. to remand this action to the Superior Court of New Jersey, Law Division, Morris County. (ECF Nos. 4, 8). Defendant West Morris Regional High School Board of Education ("West Morris") opposes the motion. (ECF No. 7). The Honorable Susan Davis Wigenton, U.S.D.J., referred the motion to the undersigned for a Report and Recommendation. Having considered the parties' written submissions, the undersigned respectfully recommends that the motion to remand be DENIED.

         I. BACKGROUND

         Plaintiffs filed a due process petition with the New Jersey Department of Education in October 2017 challenging disability accommodations for J.H. (Compl. ¶ 74, Exh. A, ECF No. 1). J.H. is allegedly disabled and suffers from "school related anxiety, school phobia, and an extreme noise sensitivity." (Id. ¶ 18). An Administrative Law Judge, after conducting a due process hearing, dismissed the petition. (Id. ¶ 77).

         Availing themselves of their right to appeal that decision, plaintiffs filed suit in the Law Division of the Superior Court of New Jersey, Morris County in May 2019. (Warshaw Decl. ¶ 7, ECF No. 4-1). The Complaint asserts claims under two federal statutes: the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 el seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Compl. ¶¶ 84, 112).[1]

         Plaintiffs served West Morris with the initial Summons and Complaint on June 4, 2019. (Warshaw Decl. ¶ 8). On June 25, 2019, West Morris began to deliver the Notice of Removal and accompanying papers to plaintiffs' counsel, this Court and the Superior Court by various electronic and hard-copy means. (See Howlett Decl., ECF No. 7-1). Specifically, the papers were served and filed as follows: they were filed electronically in the Superior Court on June 25, 2019 (Warshaw Decl. ¶ 10; ECF No. 4-4 at ECF p. 11; ECF No. 7-1 at ECF p. 13); they were served on plaintiffs' counsel by email on June 25, 2019 and in hard copy on June 26, 2019 (Howlett Decl. ¶ 4 & Exh. C); and they were delivered in hard copy to the Clerk of this Court on June 26, 2019 (ECF No. 7-1, Exh. A). This Court docketed the removal papers on June 27, 2019. (ECF No. 1). Plaintiffs filed the instant motion to remand on July 26, 2019. (ECF No. 4).

         II. DISCUSSION

         Plaintiffs seek remand on essentially two grounds. First, plaintiffs contend that there was a procedural defect in removal because West Morris filed the removal papers in the state court and served plaintiffs with the papers before they were filed in the District Court. Second, plaintiffs appear to argue that the removal violates the principle that the federal court does not enjoy exclusive jurisdiction over IDEA claims.

         A. Plaintiffs' Procedural Challenge to Removal

         The Court first addresses plaintiffs' argument that remand is required by a defect in the removal procedure.[2] Plaintiffs contend that 28 U.S.C. § 1446(d) required defendant to file in the state court a notice of removal only after it had been filed in the federal court. Here, as detailed above, it does seem that filing of the removal papers in the Superior Court was completed before the Notice of Removal was filed and docketed in this Court.

         Section 1446(d) provides:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties, and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless the case is remanded.

28 U.S.C. § 1446(d). This Court has previously described this statute as requiring a removing party to complete three procedural steps to "effect the removal" of an action to a United States District Court: (1) filing a notice of removal in federal court; (2) giving written notice to all adverse parties; and (3) filing a copy of the notice with the clerk of the state court. See, e.g., Westfield Ins. Co. v. Interline Brands, Inc., No. Civ. 12-6775 (JBS/JS), 2013 WL 1288194, at *2 (D.N.J. Mar. 25, 2013). In this case, it is undisputed that all three of these steps were completed within the thirty-day removal period.

         Thus, the result of the motion turns upon whether the order in which the removing defendant completed these steps is prescribed by statute and constitutes a defect compelling remand if not followed. In pressing this argument, plaintiffs rely solely on the statutory language directing that "[p]romptly after the filing of such notice of removal," a defendant "shall give written notice thereof to all adverse parties, and shall file a ...


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