Trobiano v. Lagano
| Decision Date | 29 July 2019 |
| Docket Number | Civil Action No. 2:19-CV-4886-MCA-SCM |
| Parties | ANTHONY TROBIANO, Plaintiff, v. LAGANO, et al. Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
ON PLAINTIFF'S MOTION TO REMAND
[D.E. 2]
REPORT AND RECOMMENDATION
Before the Court is Plaintiff Anthony Trobiano's ("Mr. Trobiano") motion to remand this case to state court.1 Defendant Frank Lagano, Esq. ("Mr. Lagano") opposes the motion and cross moves to amend his Notice of Removal.2 Mr. Trobiano filed a reply certification.3 The Honorable Madeline Cox Arleo, U.S.D.J., referred the instant matter to the undersigned for report and recommendation.4 After considering the parties' submissions, the Court decides the matter without oral argument.5 For the reasons set forth herein, it is respectfully recommended that Mr. Trobiano'smotion to remand be DENIED, and Mr. Lagano's motion to amend his Notice of Removal be DENIED.
This action concerns the recovery of an alleged debt owed to Mr. Trobiano. Mr. Trobiano alleges that Frank P. Lagano ("Decedent"), who died in 2007, owes him $187,500.00, which Mr. Trobiano loaned to Decedent prior to Decedent's death.6 Decedent's surviving spouse, Frances Lagano, was appointed as administratrix to Decedent's intestate estate (the "Estate") until her death in 2011.7 In 2012, Mr. Lagano, Decedent's son, applied to the Surrogate of Bergen County the "Surrogate") for substitute administration of the Estate, and subsequently was bound with Defendant Liberty Mutual Insurance Company ("Liberty Mutual") as the surety.8 Mr. Lagano contends that the Estate was closed in 2009 with the exception of two pending lawsuits, and in order to continue the prosecution and defense of those lawsuits, Mr. Lagano applied to be substitute administrator.9 Mr. Trobiano contends that in August 2018 he made a written demand to Mr. Lagano for repayment of the loans, and Mr. Lagano refused.10
On October 11, 2018, Mr. Trobiano—individually and as trustee of the Anthony Trobiano Trust—filed the instant action in the Superior Court of New Jersey against Mr. Lagano—individually and as the substitute administrator of the Estate—and Liberty Mutual.11 On February6, 2019, Mr. Lagano removed the action to federal court on the grounds of diversity jurisdiction.12 In his Notice of Removal, Mr. Lagano states that Mr. Trobiano had not filed proof of service upon Liberty Mutual and failed to effect proper service upon him.13 To date, Liberty Mutual has not entered an appearance.
A claim first brought in state court may be removed to federal court under 28 U.S.C § 1441.14 When there is an alleged defect in the removal procedure or a lack of subject matter jurisdiction, a party may move to remand the issue back to state court.15 The Third Circuit directs its courts to strictly construe 28 U.S.C. § 1441 against removal and to resolve all doubts in favor of remand.16 It is presumed "that federal courts lack jurisdiction unless the contrary appears affirmatively from the record."17 As a result, "[t]he burden is on the removing party to show the case belongs in federal court."18
Under 28 U.S.C. § 1441(a), a civil action brought in state court may be removed by a defendant to the proper federal district court with original jurisdiction.19 Removal requires an independent ground for subject matter jurisdiction such as diversity jurisdiction or federal question jurisdiction.20 Under 28 U.S.C. § 1446(b), a notice of removal of a civil action or proceeding shall be filed within thirty days after the defendant is successfully served with process.21
A case removed from state court shall be remanded "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction."22 When a defendant's notice of removal is procedurally defective, a plaintiff may file a motion to remand the case to state court.23 For such defects, a plaintiff must file its motion to remand within 30 days after the notice of removal.24 If the defendant's notice of removal is untimely and the plaintiff's motion to remand is timely, a court may remand the case to state court.25
Mr. Trobiano argues that this Court should remand the matter to state court because Mr. Lagano untimely filed his Notice of Removal and this matter lacks complete diversity of jurisdiction.26
Mr. Trobiano argues that Mr. Lagano untimely filed his Notice of Removal, as his filing occurred more than thirty days after service of the complaint.27 Mr. Lagano disagrees and argues that the thirty-day period was never triggered. The parties dispute the proper service of the complaint.
Mr. Lagano appears in this matter both individually and as the substitute administrator of the Estate. Mr. Trobiano served the Surrogate on October 23, 2018, and argues that this service is proper for this matter.28 He explains that the Surrogate notified Mr. Lagano of the service by mailing him a letter with the proof of service to the New Jersey address he provided in his power of attorney.29 Further, he explains that in November 2018, Mr. Lagano acknowledged receipt of a letter from Liberty Mutual concerning this lawsuit.30 Mr. Trobiano thus argues that Mr. Lagano's removal of this action in February 2019 is well beyond the thirty days permitted for a notice of removal to be filed.
Mr. Lagano contends that the thirty-day triggering period never occurred because neither as an individual nor the substitute administrator, did he receive actual or constructive service.31 He asserts that it was not until January 18, 2019 that Mr. Trobiano apprised Mr. Lagano of the alleged constructive service and Mr. Lagano acted shortly thereafter.
The Third Circuit has rejected a plaintiff's argument that once a defendant "was properly served in his official capacity, he was properly before the court in both individual and official capacities."32 The Court has not found, nor does Mr. Trobiano offer, any precedent for determining that proper service in Mr. Lagano's capacity as substitute administrator qualifies as proper service upon him as an individual. The Court, however, is guided by this Third Circuit holding and will conduct an analysis for service upon Mr. Lagano in each of his capacities.
The Court first considers service upon Mr. Lagano as an individual. Mr. Trobiano does not assert that he served Mr. Lagano in his individual capacity. Instead, he relies upon 28 U.S.C. § 1446(b) to assert that Mr. Lagano's acknowledgment of receipt of the complaint suffices.33 Section 1446(b)(1) requires a notice of removal to be filed "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based."34 Mr. Trobiano argues Mr. Lagano's acknowledgement of the complaint qualifies as "otherwise" receipt.
The Supreme Court has recognized that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, 'throughservice or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service."35 Thus, the removal period for a defendant does not begin to run until that defendant is properly served or until that defendant waives service.36
The fact that Mr. Lagano was on notice of the complaint, received the complaint, and spoke with Mr. Trobiano's counsel about the matter, does not change that he "is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process."37 The mere notice of an action, whether in the form of a courtesy copy of a complaint or the representations of counsel, does not start the notice of removal clock without formal service of process.38 Mr. Trobiano failed to perfect service upon Mr. Lagano in his individual capacity, and there is no evidence that prior to the filing of Mr. Lagano's cross-motion to amend his Notice of Removal Mr. Lagano waived service. Thus, the removal period for Mr. Lagano as an individual was never triggered.
The Court next considers service upon Mr. Lagano as substitute administrator of the Estate. In March 2012, on the same date that he became substitute administrator, Mr. Lagano signed an authorization for the Surrogate to accept service of process as administrator in the matter of the Estate (the "Authorization"), effectively a power of attorney.39 The Authorization appointed the Surrogate as the attorney "whom may be served any and all process affecting the aforesaidestate."40 Mr. Lagano's signature appears under the statement: "And I (we) do further agree that any process against the aforesaid estate, so served, shall be of the same effect as if duly served upon me (us) within this State, pursuant to the provisions of N.J.S.A. 3B:14-47."41
After receiving service, the Surrogate sent, via regular and certified mail, the pleadings to Mr. Lagano42 at the address he provided to the Surrogate on the day he applied to be substitute administrator.43 Mr. Lagano contends that he did not receive this correspondence because he did not reside at that address during the relevant period. He provides that the certified mail tracking number on the correspondence indicates that the letter was undeliverable and returned to the Surrogate.44
The parties do not address the legal role of the Surrogate and the implications of service upon it. There is a distinction between agents designated by statute, and agents designated and selected by a party to receive process.45 "Statutory agents, unlike agents in fact, have both limited purpose and limited power."46 They "are not true agents but are merely a medium for transmitting the relevant papers."47 The Third Circuit has not directly addressed whether service on a statutoryagent triggers the removal...
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