Cacoilo v. Sherwin-Williams Co.

902 F. Supp. 2d 511, 2012 WL 4610592, 2012 U.S. Dist. LEXIS 142632
CourtDistrict Court, D. New Jersey
DecidedSeptember 28, 2012
DocketCivil No. 11-7039 (NLH/KMW)
StatusPublished
Cited by10 cases

This text of 902 F. Supp. 2d 511 (Cacoilo v. Sherwin-Williams Co.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cacoilo v. Sherwin-Williams Co., 902 F. Supp. 2d 511, 2012 WL 4610592, 2012 U.S. Dist. LEXIS 142632 (D.N.J. 2012).

Opinion

OPINION

HILLMAN, District Judge.

This matter comes before the Court: by way of Plaintiffs’ motion [Doc. No. 89] to remand this case to the Superior Court of New Jersey for Camden County pursuant to 28 U.S.C. § 1447(c). Defendants oppose Plaintiffs’ motion to remand. The Court has considered the parties’ submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Plaintiffs’ motion will be granted.

I. BACKGROUND

On October 21, 2011, Plaintiffs Maria and Jose Cacoilo filed the original comí plaint in this action in the Superior Court of New Jersey for Camden County allegj [515]*515ing that the death of their son, Nilton Cacoilo,1 was caused by his exposure to Defendants’ products, which contained the chemical benzene, during the time that Nilton Cacoilo served in the United States Marine Corps and worked at a variety of locations throughout the United States and overseas.2 Plaintiffs subsequently filed an amended complaint on October 24, 2011. In the amended complaint, Plaintiffs named approximately fifty-eight Defendants consisting largely of entities which manufactured, produced, processed, formulated, blended, packaged, labeled, marketed, advertised, distributed, sold or supplied the benzene containing products at issue in this matter. Plaintiffs’ amended complaint asserts causes of action for negligence, breach of warranty, strict liability, intentional tort, wrongful death, and a survival action.3

On December 2, 2011, two Defendants, Safety-Kleen Systems, Inc. (“SafetyKleen”) and the Sherwin-Williams Company (“Sherwin-Williams”) (hereinafter, collectively referred to as the “Removing Defendants”), removed Plaintiffs’ action from New Jersey Superior Court to the United States District Court for the District of New Jersey, asserting that this Court had federal question jurisdiction over the matter pursuant to 28 U.S.C. § 1331 based on federal enclave jurisdiction as set forth in Article One, Section Eight, Clause 17 of the United States Constitution. The Removing Defendants asserted that removal was proper because “[Cacoilo’s] personal injury action arises from incidents occurring in a federal enclave[.]” (Notice of Removal [Doc. No. 1] ¶ 5.) In addition to the Removing Defendants, twelve other Defendants consented to removal of Plaintiffs’ case to this Court by signing the Removing Defendants’ notice of removal.4 (Id. at 6-8.)

On January 3, 2012, Plaintiffs filed the present motion to remand, asserting that removal of this action is defective under 28 U.S.C. § 1447(c) because it violates the rule of unanimity in that not all Defendants properly served at the time the notice of removal was filed on December 2, 2012 joined in, or consented to, removal. (Mem. of Law in Supp. of Pis.’ Mot. to Remand [Doc. No. 89-1] (hereinafter, “Pis.’ Mem.”), 1.) Plaintiffs also argue that the Court lacks subject matter jurisdiction because the Removing Defendants have failed to establish the existence of subject matter jurisdiction predicated on the fed[516]*516eral enclave clause of the United States Constitution.5 (Id.)

II. DISCUSSION

Generally, the removal of cases from state courts to federal courts is governed by 28 U.S.C. §§ 1441-1455. In particular, Section 1441 governs removal of civil actions and provides in pertinent part that “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). Section 1446 of the removal statute sets forth the procedures for removal explaining that a defendant or defendants desiring to remove a civil action must file a notice of removal “containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants” in the state court action “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[.]” 28 U.S.C. §§ 1446(a)-(b).

In cases involving multiple defendants, such as the present case, “Section 1446 has been construed to require that ... all [defendants] must join in the removal petition[.]” Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985) (emphasis added); see also 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”) (emphasis added). The requirement that all defendants must join in or consent to removal is more commonly referred to as the “rule of unanimity.” Under the rule of unanimity, a failure of all defendants to join in the notice of removal creates a “defect in the removal procedure within the meaning of § 1447(c).” Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir.1995).

Where a procedural defect in removal exists, Section 1447(c) provides that a “motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal[.]” 28 U.S.C. § 1447(c). Because the failure of all defendants to join in, or consent to, removal is a procedural defect rather than a jurisdictional one, it functions as a procedural bar to removal which may be disregarded under only limited circumstances. See Balazik, 44 F.3d at 213 n. 4. (recognizing that the rule of unanimity may be disregarded when (1) a nonjoining defendant is unknown or is a nominal party; (2) where a defendant has been fraudulently joined; or (3) where a nonresident defendant has not been served at the time the notice of removal is filed).

Because federal courts are courts of limited jurisdiction, both the Supreme Court of the United States and the Third Circuit Court of Appeals have recognized that removal statutes are to be strictly construed against removal and all doubts must be [517]*517resolved in favor of remand. See, e.g., Shamrock Oil & Gas Corp. v. Sheets,

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902 F. Supp. 2d 511, 2012 WL 4610592, 2012 U.S. Dist. LEXIS 142632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cacoilo-v-sherwin-williams-co-njd-2012.