Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
`
`2012 WL 3598815
`Only the Westlaw citation is currently available.
`NOT FOR PUBLICATION
`United States District Court,
`D. New Jersey.
`
`ADVANCED SURGERY CENTER, Plaintiff,
`v.
`CONNECTICUT GENERAL LIFE,
`INSURANCE COMPANY, et al., Defendants.
`
`Civil Action No. 12–2715 (JLL).
`
` | July 31, 2012.
`
`Attorneys and Law Firms
`
`Sean R. Callagy, Law Office of Sean R. Callagy, Esq.,
`Paramus, NJ, for Plaintiff.
`
`Eric Evans Wohlforth, Allana Lyn Nason, Gibbons, P.C.,
`Newark, NJ, for Defendants.
`
`REPORT AND RECOMMENDATION
`
`MICHAEL A. HAMMER, United States Magistrate Judge.
`
`*1 I. INTRODUCTION
`
`This matter comes before the Court on the plaintiffs' motion
`for remand to the Superior Court of New Jersey, Law
`Division, Civil Part, Passaic County. The Honorable Jose L.
`Linares referred the matter to the Undersigned for Report
`and Recommendation. Pursuant to Fed.R.Civ.P. 78, the Court
`did not hold oral argument. For the reasons set forth below,
`the Undersigned respectfully recommends that the plaintiff's
`motion be denied.
`
`II. BACKGROUND
`
`A. Factual Background
`Plaintiff Advanced Surgery Center provides ambulatory
`surgical services and is located in Clifton, New Jersey.
`(Compl. (attached to Notice of Removal) ¶¶ 2, 9, Jan. 12,
`2012, ECF No. 1–2). Defendant Connecticut General Life
`Insurance Company is a national health insurance carrier
`doing business in New Jersey and located in Bloomfield,
`Connecticut. (Id. ¶ 3.) Defendant CIGNA Healthcare of New
`Jersey, Inc., is a health insurance carrier in Jersey City, New
`Jersey. (Id. ¶ 4.) Advanced Surgery Center has allegedly
`
`provided necessary surgery to patients with health benefits
`plans or policies that are provided or administered by the
`defendants. (Id. ¶¶ 1, 8.) According to the Complaint, the
`defendants have wrongfully denied payment on the plaintiffs'
`claims and reimbursement to Advanced Surgery Center
`because it is not a proper type of provider. (Id. ¶¶ 1, 8, 10)
`The patients have assigned their denied claims to Advanced
`Surgery Center. (Id . ¶¶ 1, 8–9.)
`
`B. Procedural History
`In an “unrelated matter,” on December 9, 2011, a claims
`resolution manager employed by the defendants emailed
`a paralegal of the counsel for Advanced Surgery Center.
`(Pl.'s Br. 3, 5, Ex. D, June 1, 2012, ECF No. 9.) The
`claims resolution manger stated, in pertinent part, that “[i]f I
`understood your question you wanted the proper entity name
`to serve-its Connecticut General Life Insurance Company.
`You can send it certified to my attention or serve through our
`NJ process server and thats CT Corp.” (Pl.'s Br. Ex. D.)
`
`In present matter, on January 17, 2012, Advanced Surgery
`Center filed the Complaint in the Superior Court of New
`Jersey, Law Division, Civil Part, Passaic County, against
`Connecticut General Life Insurance Company and CIGNA
`Healthcare of New Jersey. (Notice of Removal Ex. F, May 7,
`2012, ECF No. 1–7.)
`
`On February 2, 2012, Advanced Surgery Center personally
`served the managing agent of CIGNA Healthcare of New
`Jersey at its office in Jersey City, New Jersey. (Notice of
`Removal ¶ 3, May 7, 2012, ECF No. 1.) On the same day,
`Advanced Surgery Center personally served an employee of
`Connecticut General Life Insurance Company at its office
`in Bloomfield, Connecticut, namely, Donna Gaudet, the
`Incoming Legal Coordinator. (Notice of Removal ¶ 3, Ex. B;
`Pl.'s Br. Ex. C.)
`
`On March 27, 2012, a series of emails crossed between
`a paralegal for counsel for Advanced Surgery Center and
`a claims resolution manager for defendants. The paralegal
`advised the claims resolution manager that the time to answer
`had expired and attached the February 2, 2012 proof of service
`and the Complaint. (Pl.'s Br. Ex. E.) The claims resolution
`manager responded that she had forwarded the email to the
`defendants' in-house counsel and stated: “Thanks very much
`for not filing the dismissal ... [sic].” (Id.) In a later email that
`same day, the claims resolution manager apologized for the
`“internal mix-up with this lawsuit” and stated, “[w]e have
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`Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
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`someone looking at this right away, can we please have a 15
`day extension?” (Pl.'s Br. Ex. F.)
`
`*2 On March 29, 2012, an attorney for Advanced Surgery
`Center emailed the defendants' counsel for the purpose of
`transmitting contact information and noted that the Complaint
`contained a notice to produce. (Pl.'s Br. Ex. G.) On March 30,
`2012, the defendants' counsel emailed a response and wrote
`in pertinent part:
`
`Per our conversation, please see the
`attached stipulation to extend time to
`answer or otherwise respond. If it
`meets your approval, please sign and
`send it back to me. I will file it with
`the court along with our response. Also
`per our conversation, I note that the
`agreed upon extension is not meant for
`removal purposes; the time to remove
`has expired in any event.
`
`(Id.) On April 5, 2012, a paralegal for Advanced Surgery
`Center forwarded to defendants' counsel a signed stipulation
`extending time to answer, move, or otherwise respond to the
`Complaint until May 7, 2012. (Pl.'s Br. Ex. H.) In pertinent
`part, the stipulation stated: “The parties acknowledge this
`Stipulation in no way extends Defendants' time to remove this
`action to federal court.” (Id.) The stipulation was signed only
`by counsel for Advanced Surgery Center. (Id.) The stipulation
`was never filed.
`
`On May 7, 2012, the defendants removed this action to
`the United States District Court, District of New Jersey.
`The defendants ground their removal in federal question
`jurisdiction under ERISA or, alternatively, in diversity
`jurisdiction along with assertions that CIGNA Healthcare
`of New Jersey was fraudulently joined. (Notice of Removal
`¶¶ 10–26.) The defendants stated in their notice of removal
`that Connecticut General Life Insurance Company was never
`properly served and therefore its thirty-day opportunity for
`removal had never begun. (Id.¶ 37.)
`
`Later on May 7, 2012, the defendants applied for a Clerk's
`extension of time to answer, move, or otherwise respond to
`the Complaint. (Appl. & Proposed Order, May 7, 2012, ECF
`No. 3.) The extension request asserted that the defendants'
`time to answer had not expired and that they had not waived
`any defenses. (Id.) The Clerk of the Court granted the
`extension. (Clerk's Text Order, May 9, 2012.)
`
`On May 29, 2012, the defendants moved to dismiss the
`Complaint for failure to state a claim under Federal Rule of
`Civil Procedure 12(b)(6). (Mot. to Dismiss, May 29, 2012,
`ECF No. 6.)
`
`On June 1, 2012, Advanced Surgery Center filed the present
`motion to remand this action to the Superior Court of New
`Jersey, Civil Part, Law Division, Passaic County. (Mot. to
`Remand, June 1, 2012, ECF No. 9.) On July 2, 2012, the
`defendants filed their opposition to the motion. (Opp'n Br.,
`July 2, 2012, ECF No. 14.) On July 9, 2012, Advanced
`Surgery Center filed its reply. (Reply Br., July 9, 2012, ECF
`No. 15.) On July 16, 2012, the defendants filed a letter
`requesting leave to file a sur-reply, contending that Advanced
`Surgery Center has raised a new legal argument for the first
`time in its reply. (Defs.' Letter, July, 16, 2012, ECF No. 17.) 1
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`On the same day, Advanced Surgery Center filed errata
`sheets regarding the tables of contents and authorities in
`its briefing materials. (Notice of Errata, Jule 16, 2012,
`ECF No. 18.)
`
`*3 On July 17, 2012, Advanced Surgery Center filed a
`letter opposing the request for a sur-reply and asking for
`permission to file a sur-sur-reply if the request is granted.
`(Pl.'s Letter, July 17, 2012, ECF No. 19.) On July 18, 2012, the
`Court granted permission to file the sur-reply and permitted
`Advanced Surgery Center to file a sur-sur-reply. (Text Order,
`July 18, 2012, ECF No. 20.) On July 24, 2012, Advanced
`Surgery Center filed its sur-sur-reply. (Pl.'s Letter, July 24,
`2012, ECF No. 23.)
`
`III. DISCUSSION
`As an initial matter, the Court notes that a decision to remand
`is dispositive. In re U.S. Healthcare, 159 F.3d 142, 146 (3d
`Cir.1998) (“[A]n order of remand is no less dispositive than
`a dismissal order of a federal action for lack of subject matter
`jurisdiction where a parallel proceeding is pending in the state
`court.”) Accordingly, the Undersigned makes the following
`report and recommendation to the assigned United States
`District Judge, the Honorable Jose L. Linares.
`
`A. Motion for Remand 2
`2
`Although not raised by the parties, the Court notes that
`Congress recently passed the Federal Courts Jurisdiction
`and Venue Clarification Act of 2011, Pub.L. No. 112–
`63, 125 Stat. 758 (Dec. 7, 2011), which amended 28
`U.S.C. § 1446, among others statutes. The law sought
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`Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
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`to “bring[ ] more clarity to the operation of Federal
`jurisdictional statutes and facilitate[ ] the identification
`of the appropriate State or Federal court where actions
`should be brought.” H.R. 122–10, at 1–2 reprinted in
`2011 U.S.C.C.A.N. 576, 577. Under Section 205, the Act
`took effect “upon the expiration of the 30–day period
`beginning on the date of [its] enactment.” Pub.L. No.
`112–63, § 205, 125 Stat. 758. § 205 H.R. 394, Pub.L.
`No. 112–61. As the President signed the bill into law
`on December 7, 2011, the Act took effect upon the
`expiration of January 6, 2012. Accordingly, the revised
`statute applies to this case.
`
`Title 28, Section 1441(a) of the United States Code permits a
`defendant to remove a civil action in state court to a federal
`court where the action could have been filed originally, that
`is, where the federal court has subject matter jurisdiction over
`the action. Caterpillar Inc. v. Williams, 482 U.S. 386, 392,
`107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Section 1446 outlines
`the procedures for removal, and Section 1447 outlines the
`procedures following removal. 28 U.S.C. §§ 1446, 1447.
`Defects in removal may be procedural or jurisdictional. Under
`28 U .S.C. § 1446(b)(1), a defendant has thirty days to remove
`a case, and this time limit “is a procedural provision, not a
`jurisdictional one.” Farina v. Nokia Inc., 625 F.3d 97, 114
`(3d Cir.2010) (citing Ariel Land Owners, Inc. v. Dring, 351
`F.3d 611, 614 (3d Cir.2003)). In turn, a plaintiff's “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 under section 1446(a).”
`28 U.S.C. § 1447(c). Jurisdictional defects, however, may be
`raised at any time. Caterpillar Inc. v. Lewis, 519 U.S. 61, 69,
`117 S.Ct. 467, 136 L.Ed.2d 437 (1996).
`
`Defendants bear the burden of demonstrating that removal
`was proper as they are the parties asserting federal
`jurisdiction. Frederico v. Home Depot, 507 F.3d 188, 193
`(3d Cir.2007); see also Brown v. Jevic, 575 F.3d 322, 326
`(3d Cir.2009) (describing burden as “heavy”). The removal
`statutes “are to be strictly construed against removal and
`all doubts should be resolved in favor of remand.” Boyer
`v. Snap–On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990)
`(citing Steel Valley Auth. v. Union Switch & Signal Div., 809
`F.2d 1006, 1010 (3d Cir.1987)).
`
`Here, the fundamental issue is whether there was a procedural
`defect in the notice of removal, namely, whether the
`defendants' notice of removal was timely.
`
`B. Removal's Thirty Day Time Limit
`
`*4 Title 28, Section 1446(b)(1) of the United States Code
`states that “[t]he notice of removal of a civil action or
`proceeding shall 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....” 28 U.S.C. § 1446(b)(1).
`The Supreme Court has held that “a named defendant's time to
`remove is triggered by simultaneous service of the summons
`and complaint, or receipt of the complaint, ‘through service or
`otherwise,’ after and apart from service of the summons, but
`not by mere receipt of the complaint unattended by any formal
`service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
`526 U.S. 344, 347–48, 119 S.Ct. 1322, 143 L.Ed.2d 448
`(1999). The Court based this interpretation of Section 1446
`“in light of a bedrock principle” that “[a]n individual or entity
`named as a defendant is not obliged to engage in litigation
`unless notified of the action, and brought under a court's
`authority, by formal process .” Murphy, 526 U.S. at 347.
`Accordingly, “the removal period for a defendant does not
`begin to run until that defendant is properly served or until
`that defendant waives service.” Di Loreto v. Costigan, 351
`F. App'x 747, 751 (3d Cir.2009) (citing Murphy, 526 U.S. at
`350.). Whether a defendant has waived service so as to trigger
`the removal period is a question of state law. See Di Loreto,
`351 F. App'x at 752 (“Since Costigan was never officially
`served in accordance with the Pennsylvania Rules of Civil
`Procedure, we must determine when he waived service so
`as to trigger his removal period.”). In addition, the Third
`Circuit has interpreted the words “initial pleading” to mean
`the complaint. See Sikirica v. Nationwide Ins. Co., 416 F.3d
`214, 222–23 (3d Cir.2005).
`
`C. Analysis
`This motion requires the Court to consider three issues.
`First, the Court must determine whether Advanced Surgery
`Center properly served process on Connecticut General Life
`Insurance Company. Second, regardless of whether service
`was proper, the Court must determine whether simultaneous
`receipt of the summons and complaint triggered the thirty-
`day period for removal. Third, the Court must consider
`whether service was nonetheless effected by waiver, consent,
`or otherwise, thereby triggering the removal period.
`
`1. Whether Service of Process was Proper
`It is undisputed that, if the February 2, 2012 service of
`process on Connecticut General Life Insurance Company
`was effective, then its thirty day clock to remove began
`on that day. See 28 U.S.C. § 1446(b)(1); Murphy Bros.,
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`Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
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`526 U.S. at 347–48. Connecticut General Life Insurance
`Company is a Connecticut corporation doing business in
`New Jersey and, pursuant to N.J. Stat. Ann. 17B:23–2(c),
`has designated the New Jersey Department of Banking and
`Insurance as its registered agent for service of process in
`New Jersey. (See Compl. ¶ 3; Notice of Removal ¶¶ 17, 30–
`31.) According to Advanced Surgery Center's affidavit of
`service, its service processor went to the office of Connecticut
`General Life Insurance Company in Bloomfield, Connecticut,
`and personally served a Donna Gaudet, who is the Incoming
`Legal Coordinator. (Pl.'s Br. Ex C.) 3
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`3
`
`The process server also indicated the box stating that he
`“[l]eft a copy with a person authorized to accept service,
`e.g. managing agent, registered agent, etc. (indicate name
`& official title at right).” (Pl.'s Br. Ex. C.) Connecticut
`General Life Insurance Company's notice of removal
`attaches the declaration of Donna Gaudet who stated
`that she indeed “personally accepted in-hand service, on
`behalf of CGLIC, of the Summons and Complaint in the
`above-captioned matter at CGLIC's office in Bloomfield,
`Connecticut.” (Notice of Removal Ex. B.) No party has
`raised concerns that Ms. Gaudet was a person who was
`not authorized to receive service. Notably, however,
`“New Jersey has adopted the federal rule ‘that the
`plaintiff has the burden of showing that an alleged agent
`has specific authority, express or implied, for receipt of
`process.’ ” Lee v. Genuardi's Family Markets, L.P., Civ.
`No. 10–1641, 2010 WL 2869454, at *4 (D.N.J. July 19,
`2010) (quoting Zoning Bd. of Adjustment of Sparta Twp.
`v. Serv. Elec. Cable, 198 N.J.Super. 370, 377, 487 A.2d
`331 (App.Div.1985)).
`
`*5 Connecticut General Life Insurance Company argues
`that, since it is a non-resident corporation, Advanced Surgery
`Center could have served its in-state registered agent and
`failed to make a diligent effort and inquiry before seeking to
`effect service outside the state. (Notice of Removal ¶¶ 30–
`36; Opp'n Br. 5–9.). Advanced Surgery Center argues that
`service is proper notwithstanding any “technical violation” of
`the New Jersey Court Rules. (Reply Br. 4–6.) Specifically,
`it argues that propriety of service is governed by due
`process concerns and “inquiry as to proper service turns
`wholly upon whether due process has been afforded to the
`defendant by meeting the constitutional requirements set out
`by Justice Jackson in Mullane[ v. Central Hanover Bank
`& Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865
`(1950) ].” (Reply Br. 5.) In this regard, Advanced Surgery
`Center looks to Rosa v. Araujo, 260 N.J.Super. 458, 616
`A.2d 1328 (App.Div.1992), wherein a motion to vacate
`a default judgment was denied, notwithstanding defective
`
`service on an in-state defendant, because the defendant had
`received the summons and complaint and turned it over
`to his attorney before default judgment was entered. Id. at
`463, 616 A.2d 1328. Advanced Surgery Center contends
`that service was proper because Connecticut General Life
`Insurance Company “received the summons and complaint,
`w[as] aware of the nature of the lawsuit, and had turned the
`matter over to an attorney who actively participated in the
`representation.” (Reply Br. 6.)
`
`Under New Jersey law, personal service is the primary
`method of effecting service. See N.J. Ct. R. 4:4–4(a), 4:4–
`5(a). New Jersey Court Rules 4:4–3 and 4:4–4(a) prescribe
`the methods of effecting personal service within the state. In
`pertinent part, New Jersey Court Rule 4:4–4(a)(6) describes
`how to serve a domestic corporation and states that service
`is made by personally serving a copy of the summons and
`complaint
`
`• on any officer, director, trustee or managing or general
`agent, or any person authorized by appointment or by
`law to receive service of process on behalf of the
`corporation,
`
`• or on a person at the registered office of the corporation
`in charge thereof,
`
`• or, if service cannot be made on any of those persons,
`then on a person at the principal place of business of the
`corporation in this State in charge thereof,
`
`• or if there is no place of business in this State, then on
`any employee of the corporation within this State acting
`in the discharge of his or her duties, provided, however,
`that a foreign corporation may be served only as herein
`prescribed subject to due process of law
`
`N.J. Ct. R. 4:4–4(a)(6) (bullet points added for clarity).
`
`When personal service cannot be effected within the state,
`Rule 4:4–4(b) permits substituted or constructive service to
`obtain personal jurisdiction over a defendant. See N.J. Ct.
`R. 4:4–4(b). Rule 4:4–4(b)(1)(A) permits personal service in
`other states in the United States and the District Columbia
`“in the same manner as if service were made within this
`State.” Substituted or constructive service, however, requires
`an affidavit demonstrating “diligent effort and inquiry” that
`satisfies the requirements specified in New Jersey Court Rule
`4:4–5(b). N.J. Ct. R. 4:4–4(b) (1) ( “By Mail or Personal
`Service Outside the State. If it appears by affidavit satisfying
`the requirements of R. 4:4–5(b) that despite diligent effort and
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`Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
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`inquiry personal service cannot be made in accordance with
`paragraph (a) of this rule, then, consistent with due process
`of law, in personam jurisdiction may be obtained over any
`defendant as follows:”).
`
`*6 The Appellate Division of the New Jersey Superior
`Court has stated that “[t]he filing of an affidavit of inquiry
`is not a mere technicality—it is a mandatory jurisdictional
`requirement.” Burgos v. Int'l Vacation Club, Ltd., Docket No.
`L–1721–09, 2012 WL 787385, at *2 (N.J.Super.Ct.App.Div.
`Mar.13, 2012) (finding that the failure to file an affidavit
`of service was one of “several fatal defects in service of
`process”). 4 “If a defendant cannot be personally served
`within the State, in personam jurisdiction can only be
`obtained by mail or personal service outside the State ‘[i]f
`it appears by affidavit satisfying the requirements of R. 4:4–
`5(b) that despite diligent effect and inquiry personal service
`cannot be made in accordance with [Rule 4:4–4(a) ].’ ”
`Burgos, 2012 WL 787385, at *2 (quoting N.J. Civ. R. 4:4–
`4(b) (1)) (alteration in Burgos ). Notably, the failure to include
`an affidavit of diligent inquiry will not support a default
`or default judgment. See, e.g., Mettle v. First Union Nat'l
`Bank, 279 F.Supp.2d 598, 603–04 (D.N.J.2003) (setting aside
`default for failures to effect service, among which included
`failure to file affidavit of due diligence); Burgos, 2012 WL
`787385, at *2–3 (vacating default judgment, notwithstanding
`defendant's actual notice of suit, because service defects,
`including failure to file affidavit of due diligence, did not
`allow court to obtain in personam jurisdiction); Sobel v. Long
`Island Entm't Prods., Inc., 329 N.J.Super. 285, 290–95, 747
`A.2d 796 (App.Div.2000) (same); Durham v. Ramada, Inn,
`Docket Nos. L–8022–02, L–1312–05, 2007 WL 1649896, at
`*1 (N.J.Super.Ct.App.Div. June 8, 2007) (affirming decision
`to vacate default where service was improper for failing
`to file affidavit of diligent inquiry). This same failure can
`result in dismissal of a case for defective service. See, e.g.,
`Chhaparwal, M.D. v. W. Va. Univ. Hosps., Inc., Civ. No. 07–
`3608, 2008 WL 1809392, at *2–4 (D.N.J. Apr. 22, 2008);
`Signs by Tomorrow–USA, Inc. v. G.W. Engel Co., Civ.
`No. 05–4353, 2006 WL 2224416, at *3–5 (D.N.J. Aug. 1,
`2006); Cf. Mettle, 279 F.Supp.2d at 603–05 (considering
`dismissal for failure to serve but granting extension because
`of plaintiff's pro se status). Accordingly, the failure to file
`an affidavit of diligent inquiry is not a mere technicality, but
`error that deprives a court of jurisdiction. 5
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`4
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`“The purpose of the rule requiring an affidavit of
`diligent inquiry is to assure the court that it has personal
`jurisdiction to enter judgment and that the defendant's
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`5
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`right to due process has not been violated.” Arianna
`Holding Co. v. Cummings, Docket No. F–31268–08,
`2011 WL 2671805, at *3 (N.J.Super.Ct.App.Div. July
`11, 2011) (Finding affidavit deficient and rejecting
`argument that due process and substituted service by mail
`were satisfied “if the facts later show that the defendant
`actually resided at the address to which process was
`mailed”).
`
`Advanced Surgery Center's extensive reliance on
`Rosa v. Araujo, 260 N.J.Super. 458, 616 A.2d 1328
`(App.Div.1992), does not change this result. Advanced
`Surgery Center's argument incorrectly posits that due
`process, notice, service of process, and personal
`jurisdiction mean the same thing. Actual notice may
`comport with due process, see Sobel, 329 N.J.Super.
`at 292–94, 747 A.2d 796, but substantial deviations
`from the service of process rules will not guarantee
`that a court has jurisdiction over a party. Id. at 293–
`94, 747 A.2d 796. Notwithstanding actual notice and
`sufficient time to respond to a complaint, failure to
`comply with the rules of service may deprive a court
`of in personam jurisdiction. Id. at 294, 747 A.2d 796
`(“The defendant had actual notice of the suit, but neither
`of the methods of service which were used complied
`with the applicable rules for obtaining in personam
`jurisdiction.”). As described above, Advanced Surgery
`Center's flaw in service was such a fatal failure whereas
`in Rosa it was not.
`
`Thus, Advanced Surgery Center's service on Connecticut
`General Life Insurance Company was defective.
`
`2. Whether Improper Service Triggers Thirty–Day
`Removal Period
`Advanced Surgery Center also contends that, regardless of the
`propriety of service, the simultaneous receipt of the summons
`and complaint is all that is required to start the thirty-
`day removal clock under the United States Supreme Court's
`decision in Murphy Brothers. (Reply Br. at 7.) In support,
`Advanced Surgery Center points to Granovsky v. Pfizer, Inc.,
`631 F.Supp.2d 554, 562 (D.N.J.2009), and MacDonald v.
`Township of Wall Police Department, Civ. No. 11–1598,
`2011 WL 1740410, at *2 (D.N.J. May 4, 2011). From these
`cases, Advanced Surgery Centers argues that when the thirty-
`day removal clock begins is a federal inquiry “not triggered
`by state service rules regarding personal jurisdiction” and that
`“it is simply the receipt of the summons and complaint [that]
`triggers the 30–day removal clock, even if such service is not
`‘effective’ under state law for purposes of obtaining personal
`jurisdiction.” (Reply Br. at 8.)
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`Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
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`*7 Contrary to these assertions, proper service and a court's
`acquisition of personal jurisdiction were at the heart of the
`Supreme Court's decision in Murphy Brothers. In that case, a
`plaintiff faxed a complaint without a summons to a defendant
`and asserted that receipt of the complaint was sufficient to
`start the removal clock. Murphy Bros., 526 U.S. at 348–
`49. The Eleventh Circuit Court of Appeals agreed, having
`adopted the plain meaning of the removal statue, 28 U.S.C.
`§ 1446(b)(1), 6 and finding that Congress had endorsed the
`“receipt rule,” that is, mere receipt of a complaint and not
`service was all that Section 1446(b) required. Michetti Pipe
`Stringing, Inc. v. Murphy Bros., Inc., 125 F.3d 1396, 1398
`(11th Cir.1997) (considering “whether 28 U.S.C. § 1446(b)
`embodies a ‘receipt rule’ or a ‘service of process rule’ “ and
`“[c]oncluding that the clock starts to tick upon the defendant's
`receipt of a copy of the filed initial pleading”); accord Murphy
`Bros., 526 U.S. at 353–54.
`
`6
`
`28 U.S.C. § 1446(b)(1) states:
`The notice of removal of a civil action or proceeding
`shall 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, or within 30 days after the service of
`summons upon the defendant if such initial pleading
`has then been filed in court and is not required to
`be served on the defendant, whichever period is
`shorter.
`The recent amendments did not change this subsection
`substantively; Congress merely changed the word
`“thirty” to the numeral “30”. See Federal Courts
`Jurisdiction and Venue Clarification Act of 2011,
`Pub.L. No. 112–63, 125 Stat. 758 (Dec. 7, 2011).
`
`The Supreme Court considered the plain meaning of Section
`1446(b) and rejected it. See Murphy Bros., 526 U.S. at 353–
`56. Instead, the Supreme Court “read Congress' provisions
`for removal in light of a bedrock principle: An individual
`or entity named as a defendant is not obliged to engage in
`litigation unless notified of the action, and brought under a
`court's authority, by formal process .” Murphy Bros., 526 U.S.
`at 347. The Court found that Congress did not mean to upend
`a concept as fundamental as personal jurisdiction by allowing
`a court to take away a party's procedural rights before having
`authority over that party. See Murphy Bros., 526 U.S. at 356
`(“In sum, it would take a clearer statement than Congress
`has made to read its endeavor to extend removal time (by
`adding receipt of the complaint) to effect so strange a change-
`to set removal apart from all other responsive acts, to render
`removal the sole instance in which one's procedural rights slip
`
`away before service of a summons, i.e., before one is subject
`to any court's authority.”); see also id. at 350 (“Service of
`process, under longstanding tradition in our system of justice,
`is fundamental to any procedural imposition on a named
`defendant.... In the absence of service of process (or waiver of
`service by the defendant), a court ordinarily may not exercise
`power over a party the complaint names as defendant.”).
`
`Some debate persists, however, concerning the exact contours
`of the holding in Murphy Brothers, which was: “[A] named
`defendant's time to remove is triggered by simultaneous
`service of the summons and complaint, or receipt of the
`complaint, ‘through service or otherwise,’ after and apart
`from service of the summons, but not by mere receipt of
`the complaint unattended by any formal service.” Id. at
`347–48. Relying on Granovsky and MacDonald, Advanced
`Surgery Center interprets Murphy Brothers to mean that
`formal service requires solely “the simultaneous receipt of
`the complaint and summons” and not “effective” service.
`Granovsky, 631 F.Supp.2d at 562; accord MacDonald, 2011
`WL 1740410, at *2. Under this interpretation, the essential
`problem in Murphy Brothers was not that a court did not
`have personal jurisdiction over a defendant when the plaintiff
`merely faxed the complaint, but that the plaintiff failed to fax
`both the complaint and the summons at the same time.
`
`*8 However, the Court in Murphy Brothers expressed
`considerable concern regarding personal jurisdiction. The
`Court rejected the receipt rule and grounded its “entire
`analysis ... in the notion that it would be unfair to impose any
`kind of procedural imposition on a defendant over whom the
`court did not yet have personal jurisdiction.” Bidlingmeyer
`v. Broadspire, Civ. No. 11–6144, 2012 WL 2344862, at
`*3 (D.N.J. June 19, 2012). The Court in part rejected the
`“receipt rule” because application of that rule would allow a
`court to take away “one's procedural rights ... before one is
`subject to any court's authority.” Murphy Bros., 526 U.S. at
`356. Moreover, the Court in Murphy Brothers was concerned
`that the “receipt rule” could “operate with notable unfairness
`to individuals and entities in foreign nations” by faxing
`the complaint without proper service and thereby “plaintiffs
`‘would be able to dodge the requirements of international
`treaties and trap foreign opponents into keeping their suits in
`state courts.” Id. at 346.
`
`Similarly, Advanced Surgery Center's interpretation would
`allow plaintiffs to ignore New Jersey Court Rules for service
`outside the state and either trap outside entities into state
`court or force them to enter the ligation when no obligation
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
`6
`
`

`
`Advanced Surgery Center v. Connecticut General Life, Ins. Co., Not Reported in...
`
`to defend yet exists. Cf. Wohlegmuth v. 560 Ocean Club, 302
`N.J.Super. 306, 311, 695 A.2d 345 (App.Div.1997) (“The
`rules, however, do not provide for an affirmative duty on
`the part of a party who was improperly served to take any
`protective action.”). Given the Supreme Court's rejection of
`the plain language of the removal statute and the receipt rule,
`its emphasis on procedural rights and personal jurisdiction,
`and the implications of the plaintiff's interpretation that
`upends all those concerns, the Undersigned concludes that
`Murphy Brothers requires that service be proper enough
`to make a defendant subject to a court's authority. See
`Bidlingmeyer, 2012 WL 2344862, at *2 (“The Supreme
`Court's decision in Murphy dictates that the removal clock
`does not begin to run until the defendant the plaintiff has
`obtained personal jurisdiction over the defendant.” (emphasis
`in original); id. at *3 (“The ‘service’ referenced in the holding,
`in the context of the entire opinion, can only be read to mean
`perfected service sufficient to obtain personal jurisdiction
`over the defendant.”). This result comports with the Third
`Circuit Court of Appeals' decision in Di Loreto, numerous
`other decisions in this district, and legal commentary. 7
`
`7
`
`See, e.g., Di Loreto, 351 F. App'x at 751 (stating that “the
`removal period for a defendant does not begin to run until
`that defendant is properly served or until that defendant
`waives service” and considering Pennsylvania law to
`determine whether service was proper or whether service
`was waived); Bidlingmeyer, 2012 WL 2344862, at *2–4;
`Cnty. of Morris v. State Nat'l Ins. Co., Civ. No. 10–6616,
`2011 WL 2039057, at *2–4 (D.N.J. Apr.26, 2011), report
`& recommendation adopted, 2011 WL 2036439 (D.N.J.
`May 22, 2011) (stating that “[t]he 30 day removal period
`begins to run upon the effectuation of proper service of
`process” and that service failures, including absence of
`affidavit of diligent inquiry, rendered service improper
`and failed to trigger removal period); Ingersoll–Rand Co.
`v. Barnett, Civ. No. 05–636, 2005 WL 2175461, at *5
`(D.N.J. Sept. 7, 2005)