PMC, Inc. v. Tomco Constr.
| Decision Date | 18 November 2021 |
| Docket Number | 2:21-cv-13470 (BRM) (JSA) |
| Parties | PMC, INC., Plaintiff, v. TOMCO CONSTRUCTION, INC., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before this Court are three motions. The first motion is Plaintiff PMC, Inc.'s (“PMC”) Motion to Remand this matter to the Superior Court of New Jersey, Hudson County Vicinage. (ECF No. 9.) Defendants Excel Environmental Resources, Inc. (“Excel”) and Matthew Mauro (“Mauro”) (collectively, the “Excel Defendants”) opposed (ECF No. 13), and PMC replied (ECF No. 16). The second motion is the Excel Defendants' Motion for Leave to File Surreply in Further Opposition to PMC's Motion for Remand and for Leave to Amend Notice of Removal. (ECF No. 17.) PMC opposed (ECF No. 20), and the Excel Defendants replied (ECF No. 24). The third motion is the Excel Defendants' Motion for Leave to File Third Party Complaint (ECF. No. 11.) Having reviewed the submissions filed in connection with the Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good cause having been shown, PMC's Motion to Remand is GRANTED IN PART and DENIED IN PART; and the Excel Defendants' Motion for Leave to File a Surreply and for Leave to Amend Notice of Removal is DENIED.
PMC is a Delaware corporation headquartered in California and owner of real property located in Kearny, New Jersey. (Am. Compl. (ECF No. 1-1) at ¶¶ 2, 9.) On June 7, 2021, PMC filed an Amended Complaint in the Superior Court of New Jersey, Hudson County Vicinage, against Tomco Construction Inc. (“Tomco”) and the Excel Defendants for damages to PMC's property resulting from water or other material allegedly discharged onto wetlands adjacent to the property. (Id. ¶¶ 1, 3-5, 8, 15-18.) The Amended Complaint, which makes no mention of Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., or other federal laws, alleges five state law causes of action: negligence/trespass, vicarious liability for negligence, negligent supervision, nuisance, and professional negligence. (Id. ¶¶ 19-39.)
On July 8, 2021, the Excel Defendants filed a Notice of Removal to this Court on the basis of diversity jurisdiction. (ECF No. 1.) The Notice of Removal states:
This is a civil action over which this Court has original jurisdiction pursuant to 28 U.S.C. § 1332, in that the plaintiff and the defendants are citizens of different states and the amount in controversy exceeds $75, 000. Consequently, this matter is removable to this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
On August 4, 2021, PMC filed the Motion to Remand. (ECF No. 9.) PMC alleges this case should be remanded because the Excel Defendants, along with their co-defendant Tomco, are New Jersey citizens and, therefore, the Excel Defendants' removal violated the “forum defendant rule.” (Pl.'s Mot. Br. (ECF No. 9-2) at 4-6.) PMC also seeks an award of costs and expenses incurred in bringing the remand motion because the Excel Defendants lacked an objectively reasonable basis for removal. (Id. at 7-8.) On August 24, 2021, the Excel Defendants opposed PMC's remand motion (ECF No. 13), to which PMC filed a reply in further support of its motion on August 31, 2021 (ECF No. 16). Then, on September 2, 2021, the Excel Defendants filed a motion for leave to file a surreply in further opposition to PMC's remand motion and for leave to amend the notice of removal. (ECF No. 17.) PMC opposed this motion on September 20, 2021. (ECF No. 20.) On September 27, 2021, the Excel Defendants filed a reply in support of the motion for leave to file a surreply. (ECF No. 24.)
Pursuant to § 1441(a), “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). A defendant seeking to remove a case to federal court must do so within 30 days after being served with the complaint. 28 U.S.C. § 1446(b). The notice of removal must “contain[] a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). “The party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).
“One category of cases over which the district courts have original jurisdiction are ‘federal question' cases; that is, those cases ‘arising under the Constitution, laws, or treaties of the United States.'” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (quoting 28 U.S.C. § 1331). The other category of cases over which district courts have original jurisdiction are “cases involving diversity jurisdiction pursuant to 28 U.S.C. § 1332, encompassing, for the most part, those disputes between citizens of different states involving the requisite amount in controversy[.]” New Jersey v. City of Wildwood, 22 F.Supp.2d 395, 400 (D.N.J. 1998). However, an “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.” 28 U.S.C. § 1441(b)(2). Stated differently, this rule, known as the “forum defendant rule, ” precludes removal based on diversity where a defendant is a citizen of the state in which the plaintiff originally filed the case. See Williams v. Daiichi Sankyo, Inc., 13 F.Supp.3d 426, 433 (D.N.J. 2014) ().
A plaintiff may move to remand within 30 days after removal. 28 U.S.C. § 1447(c). “[R]emoval statutes ‘are to be strictly construed against removal and all doubts should be resolved in favor of remand.'” A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014) (quoting Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987))).
Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005); Russ v. UNUM Life Ins. Co., 442 F.Supp.2d 193, 200 (D.N.J. 2006).
PMC's remand motion is premised on the application of the forum defendant rule because the matter was removed to this Court on the basis of diversity jurisdiction and all defendants are New Jersey citizens. (ECF No. 9-2 at 5-6.) In opposing the motion, the Excel Defendants concede the action was removed on the basis of diversity jurisdiction and argue remand should be denied because Excel and Mauro were fraudulently joined in this action. (ECF No. 13 at 1, 6-9.) The Excel Defendants also contend the Court has federal question jurisdiction because CERCLA and “other federal laws” provide exclusive federal jurisdiction over PMC's claims and because the Excel Defendants' defenses and counterclaims raise issues related to CERCLA and other federal laws. (Id. at 9-12.) In PMC's reply brief, it argues the Excel Defendants failed to refute the forum defendant rule applies because they did not argue, let alone demonstrate, Tomco was improperly joined. (ECF No. 16 at 5.) PMC further argues the Excel Defendants were not fraudulently joined, and their federal question jurisdiction argument is both unsupported by law and untimely raised. (Id. at 6-9.) PMC asserts is Amended Complaint alleges only state common law claims and requests recovery under state law. (Id. at 8.) In a footnote, PMC observes the Excel Defendants did not move to dismiss the claims against them, choosing instead to file an answer, suggesting the weakness of their fraudulent joinder argument. (Id. at 6, n.1.)
The Excel Defendants' motion seeks both leave to file a surreply and leave to amend their removal notice. The first part of their motion contends leave to file a surreply is necessary to address the following arguments in PMC's reply brief: (1) the Excel Defendant's failure to move to dismiss the claims against them supports PMC's position joinder was not fraudulent; (2) the federal question argument premised on CERCLA is untimely; and (3) CERCLA does not preempt PMC's state law claims. (ECF No. 17-2 at 1-2.)[1] PMC responds leave should be denied because its reply brief merely responds to the Excel Defendants' arguments raised in opposition to remand, which arguments were outside the four corners of the notice of removal. (ECF No. 20 at 5-6.)
The second part of their motion relates to a pending federal suit captioned Occidental Chemical Corporation v. 21st Century Fox America, Inc., Civ. A. No. 18-11273 (D.N.J. June 29 2018). The Excel Defendants contend they recently discovered the existence of the suit, and a defendant in the suit, “PMC Global Inc., ” has asserted a third-party claim[2] for relief under CERCLA for the same property that is the subject of PMC's Amended Complaint. (ECF No. 17-2 at 4.) The Excel Defendants claim PMC and PMC Global Inc. are one and the same such that the state law claims against the Excel Defendants here should be...
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