Granovsky v. Pfizer, Inc.

• Decision Date: 07 July 2009
• Docket Number: Civ. No. 08-2280 (WHW).
• Citation: 631 F.Supp.2d 554
• Parties: Alla GRANOVSKY, Plaintiff, v. PFIZER, INC., Kforce, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

631 F.Supp.2d 554

Alla GRANOVSKY, Plaintiff, v. PFIZER, INC., Kforce, Inc., Defendants.

Civ. No. 08-2280 (WHW).

United States District Court, D. New Jersey.

July 7, 2009.

COPYRIGHT MATERIAL OMITTED

Robert Frederick Hermann, Hermann & Bateman, for Plaintiff Alla Granovsky.

John M. Nolan, Jackson Lewis LLP, for Defendant Pfizer, Inc.

Nicholas J. Falcone, Fox Rothschild LLP, for Defendant Kforce, Inc.

OPINION

WALLS, Senior District Judge.

Plaintiff moves to remand this action to the Superior Court of New Jersey, Law Division, Bergen County. She argues that Defendant Pfizer, Inc. improperly removed it from state court in violation of the requirements of 28 U.S.C. § 1446(a) and (b).

FACTS AND PROCEDURAL BACKGROUND

I. Underlying Dispute

The following is a brief summary of the underlying dispute as alleged by plaintiff: Granovsky had been employed by Pfizer in New Jersey for a number of years as an analytical chemist. She reported to and worked under the control of Pfizer management, but was employed by Pfizer through Kforce, a staffing company.¹

In 2004, Granovsky filed an EEO complaint with Pfizer and Kforce alleging that the conduct of her immediate Pfizer supervisor, following the end of a romantic relationship with plaintiff, had created a sexually hostile work environment. (Compl. at ¶¶ 11-44). The 2004 complaint was ostensibly resolved when Granovsky accepted reassignment to another work group reporting to another Pfizer supervisor. (Compl. at ¶ 15). However, as a result of the former supervisor's past and continuing conduct and ongoing hostility of Pfizer management attributable to her having filed an EEO complaint, Granovsky's personal and professional reputation in the workplace suffered. She alleges that she was denied assignments and employment opportunities within Pfizer as a result of this hostile treatment. (Compl. at ¶¶ 17-19). Pfizer and Kforce terminated Granovsky on April 7, 2006 without stating a reason. (Compl. at ¶ 21).

On April 1, 2008, Granovsky filed her state law complaint in the Superior Court of New Jersey, Law Division, Bergen County. See Alla Granovsky v. Pfizer, Inc. and Kforce, Inc., Civil Action No. L-2546-08. Granovsky's state law complaint against Pfizer and Kforce seeks redress for the retaliatory, discriminatory and wrongful termination of her employment. The six count complaint pleads claims of sex discrimination, retaliation, blacklisting and aiding and abetting under the New Jersey Law Against Discrimination (LAD) (Compl., Counts I, II, III and IV); tortious interference under New Jersey law (Compl., Count V) and violation of New Jersey public policy (Compl., Count VI).

II. Procedural History

The following procedural history is undisputed unless otherwise stated. On April 8, 2008, Granovsky served both Pfizer and Kforce with a summons, the filed complaint, civil case information statement, and New Jersey Superior Court Track Assignment Notice via certified mail pursuant to New Jersey Superior Court Civil Practice Rule 4:4-4(c). (Pl.'s Exs. 1, 2, 3, 4, 5, 6, and 7). The service upon each defendant was accompanied by an April 8, 2008 transmittal letter addressed to their respective chief executive officers. The letters informed Pfizer and Kforce that they were each being served pursuant to R. 4:4-4(c). (Pl's Exs. 2 and 6).

According to plaintiff, Pfizer and Kforce each received the certified mail service authorized under R. 4:4-4(c), including the summons and complaint, on April 10, 2008. (Pl's Exs. 8, 9 and 10). Pfizer disputes this date and states in its supporting affidavit that the summons and complaint were received on April 14, 2008. (Arencibia Aff. at ¶ 4). This factual dispute is ultimately insignificant since Pfizer's May 8, 2008 notice of removal was within 30 days of either the April 10 or April 14 receipt date.

On May 8, 2008, Pfizer filed its notice of removal, including copies of the process served upon it, but not the process served upon Kforce. (Pl.'s Ex. 10). Pfizer's notice of removal represented that "Kforce's counsel, Marvin L. Weinberg, Esq. of Fox Rothschild LLP, advised that Kforce consents to the removal of this matter." (Pl.'s Ex. 10 at ¶ 4). However, at the time Pfizer filed its notice of removal, neither Pfizer nor Kforce had filed any other writing or evidence from Kforce to establish Kforce's consent to the removal.

Pfizer's notice of removal stated that both it and Kforce had been served with a summons and complaint and that Pfizer had "affected [sic] removal within thirty (30) days of service upon it and Kforce of a paper from which it could first be ascertained that this action is removable." (Pl.'s Ex. 10 at ¶¶ 1, 2, 3, and 5). The notice contained a footnote stating, "We note neither Defendant was properly served with the summons and complaint." (Pl.'s Ex. 10 at n. 1).

Pfizer's notice of removal is premised on diversity jurisdiction under 28 U.S.C. § 1332. (Pl.'s Ex. 10 at ¶ 8). Granovsky's counsel received Pfizer's removal papers on May 9, 2008. (Hermann Aff. at ¶ 6). On May 14, 2008, Kforce entered an appearance and moved for additional time to answer. (Hermann Aff. at ¶ 10). On May 15, 2008, Granovsky's counsel wrote to counsel for Pfizer and Kforce. (Pl.'s Ex. 12). The letter advised:

"It appears the case has not been properly removed from state court in accordance with the requirements of 28 U.S.C. § 1446(a) and (b) within the statutorily permitted 30 day time period following defendants' receipt of the state court complaint. More specifically, the rule of unanimity was not met. Pfizer cannot speak for Kforce in filing a notice of removal. Since Kforce did not sign the removal petition or otherwise file a consent to removal within the provided time period, remand to state court is appropriate." (Id.)

The letter further informed Pfizer and Kforce that unless the parties could agree to a consent order remanding the case Granovsky intended to file a motion to remand.

On May 16, 2008, Pfizer's counsel responded with a letter citing Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) to plaintiff's lawyer arguing that "since formal service has not occurred the thirty day removal period has not even begun to run." (Pl.'s Ex. 13). The letter further stated that Pfizer's notice of removal "represented that counsel for Kforce consented to the removal of this matter. Such a representation is sufficient for removal purposes. There is no requirement that Kforce sign the removal petition or otherwise file a consent to the removal." (Id.).

On May 23, 2008, Granovsky's counsel answered Pfizer's counsel's May 16, 2008 letter, disputing assertions therein; citing Michaels v. State of New Jersey, 955 F.Supp. 315, 321 (D.N.J.1996) and other authority requiring that each defendant either formally join in the notice of removal or provide unambiguous written evidence to the Court in a timely fashion; and advising that Granovsky would proceed with a motion to remand. (Pl.'s Ex. 14). The letter noted: "Pfizer's removal papers were signed pursuant to Rule 11 and filed with the federal and state courts. The papers represent (1) that Pfizer and Kforce had both been served with a summons and the state court complaint and (2) that Pfizer `has affected [sic] removal within thirty (30) days of service upon it and Kforce of a paper from which it could first be ascertained that this action is removable.' Pfizer and Kforce have appeared after being served with a summons and complaint under New Jersey Court Rule 4:4-4(c). Accordingly, there does not appear to be a valid basis at this point to argue that the authorized service which both received on April 10, 2008, was not effective to start the 30 day time period in which to properly effectuate removal in accordance with the requirements of 28 U.S.C. § 1446(a) and (b)." (Id.).

On May 28, 2008, Kforce's counsel filed with the Court a "Declaration of Consent" as permitted by 28 U.S.C. § 1446(b). (Pl.'s Ex. 15). The declaration states that Kforce received the summons and complaint on April 10, 2008; that Kforce's counsel had been contacted by Pfizer's counsel before Pfizer filed its notice of removal and had been advised that Pfizer was removing the matter; that Kforce's counsel advised Pfizer "that although Kforce had not been properly served at that time, Kforce consented to the removal of this matter"; that on May 14, 2008, Kforce's counsel entered their appearance and filed a clerk's order extending Kforce's time to answer; that by filing the notice of appearance and clerk's order, "Kforce effectively waived proper service on May 14, 2008"; and that "Kforce reiterates its consent to the removal petition filed by Pfizer on May 8, 2008." Plaintiff now requests remand due to lack of unanimous consent to removal because Kforce's May 28, 2008 "Declaration of Consent" was not made within 30 days of the receipt of the summons and complaint.

STANDARDS

I. Burden of Proof on Motion to Remand

28 U.S.C. § 1447(c) mandates that "if at any time before final judgment it appears that a case is removed from state court improvidently and without jurisdiction, the district court shall remand the case. 28 U.S.C. §§ 1441-1452 are to be strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch & Signal Div., Am. Standard, Inc., 809 F.2d 1006, 1010 (3d Cir.1987); see also Entrekin v. Fisher Scientific Inc., 146 F.Supp.2d 594, 604 (D.N.J.2001). A party seeking to remove bears the burden of proving that it has met the requirements for removal. Group Hospitalization & Med. Servs. v. Merck-Medco Managed Care, LLP., 295 F.Supp.2d 457, 461-462 (D.N.J.2003).

Ruling on whether an action should be remanded to the state court from which it was removed, a district court must focus on the plaintiff's complaint at the time the petition for removal was filed. See Id. It remains the defendant's burden...