United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE.
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
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).
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,
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).
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.
Plaintiffs' Procedural Challenge to Removal
Court first addresses plaintiffs' argument that remand is
required by a defect in the removal procedure. 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.
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.
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 ...