Halliday v. Bioreference Laboratories Inc. et al

BRIEF in Opposition

D.N.J.October 23, 2017

LITTLER MENDELSON A Professional Corporation One Newark Center, 8th Floor Newark, New Jersey 07102 973.848.4700 Attorneys for Defendant Bio-Reference Laboratories, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY STEPHANIE HALLIDAY, Plaintiff, vs. BIREFERENCE LABORATORIES, INC., Defendant. Civil Action No. 2:17-cv-06889-KM- SCM Electronically Filed Oral Argument Respectfully Requested BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO REMAND TO NEW JERSEY SUPERIOR COURT On the brief: Amber M. Spataro, Esq. (NJ Bar #036892008) Dylan C. Dindial, Esq. (NJ Bar #073762014) Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 1 of 28 PageID: 111 TABLE OF CONTENTS PAGE i. I. PRELIMINARY STATEMENT ...........................................................................................1 II. STATEMENT OF FACTS ....................................................................................................3 III. LEGAL ARGUMENT ...........................................................................................................6 A. Removal of This Action on the Basis of Diversity Jurisdiction Was Proper Because the Forum Defendant Rule Does Not Apply Prior to Service ......................6 1. The Exception to The Forum Defendant Rule Follows The Plain Language of the Removal Statute. ........................................................................6 2. Courts That Have Distinguished The Plain Language Exception Did So To Avoid Gamesmanship, Which Is What Plaintiff Did When She Sued In New Jersey State Court. ...............................................................................................7 B. Removal of This Action on the Basis of Diversity Jurisdiction Was Proper Because BRLI Was Not Properly Served .................................................................10 1. Plaintiff Did Not Properly Serve BRLI Prior to Removal. ...................................10 2. It is Plaintiff - not BRLI - Who Has Engaged In Gamesmanship Through Selective Interpretation of Rules and Statutes. ....................................................15 C. Removal of This Action on the Basis of Federal Question Jurisdiction Was Proper Because Plaintiff’s CEPA Claim Implicates Substantial Federal Issues And Interpretation of Federal Law ...................................................................................17 D. The Court Should Deny Plaintiff’s Request for Sanctions Against BRLI Because BRLI Had an Objectively Reasonable Basis for Removal .......................................20 IV. CONCLUSION ......................................................................................................................22 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 2 of 28 PageID: 112 TABLE OF AUTHORITIES PAGE(S) ii. Page(s) CASES Bivins v. Novartis Pharmaceuticals Corp., 2009 WL 2496518 (D.N.J. Aug. 10, 2009) (Kugler, J.) ................................................7, 15, 20 D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516, 628 A.2d 305 (N.J. 1993) ....................................................................................9 Dwonzar v. McDevitt, 177 N.J. 451 (2003) .................................................................................................................18 Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659 (D.N.J. 2013) ..........................................................................................19 Frick v. Novartis Pharmaceuticals Corp., 2006 WL 454360 (D.N.J. Feb. 23, 2006) (Debevoise, J.) .........................................................7 Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005) .......................................................................................................2, 17, 21 Gunn v. Minton, 133 S.Ct. 1059 (2013) ..............................................................................................................17 Hitesman v. Bridgeway, Inc., 218 N.J. 8 (2014) .....................................................................................................................18 Jaegar v. Schering Corp., 2007 WL 3170125 (D.N.J. Oct. 25, 2007) (Cavanaugh, J.) ......................................................7 Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419 (App. Div. 2003) .........................................................................10, 11, 13 Jones v. Johnson & Johnson, No. 14-1379(RBK/KMW), 2014 WL 12577160 (D.N.J. Aug. 14, 2014) ...........................9, 21 Laffey v. Plousis, No. 05-2796, 2008 WL 305289 (D.N.J. Feb. 1, 2008), aff’d, 364 Fed.Appx. 791 (3d Cir. 2010) ....................................................................................................................11 Local 617, Etc. v. Hudson Bergen Trucking Co., 182 N.J Super. 16 (App. Div. 1981) ........................................................................................10 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 3 of 28 PageID: 113 TABLE OF AUTHORITIES (CONTINUED) PAGE iii. Manning v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2013 WL 1164838 (D.N.J. Mar. 20, 2013) ..............................................................................17 Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) .................................................................................................................20 Matthews v. New Jersey Inst. of Tech., 772 F. Supp. 2d 647 (D.N.J. 2011) ..........................................................................................19 Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290 (App. Div. 1999) ...............................................................................11, 12 Milner v. Dep’t of Navy, 562 U.S. 562 (2011) ...................................................................................................................8 Morro v. DGMB Casino LLC, 112 F. Supp. 3d 260 (D.N.J. 2015) ..........................................................................................19 N.V.E., Inc. v. Palmeroni, No. CV 06-5455, 2017 WL 3917139 (D.N.J. Sept. 7, 2017) ..................................................19 Papalini v. Sensient Colors, Inc., 2012 WL 1345353 (2012) ..........................................................................................................9 Parrish v. ARC of Morris Cty., LLC, 193 F.Supp.3d 425 (D.N.J. 2016) ............................................................................................17 Regions Hosp. v. Shalala, 522 U.S. 448 (1998) ...................................................................................................................8 Ripley v. Eon Labs, Inc., 622 F.Supp.2d 137 (D.N.J. 2007) (Rodriguez, J.) .....................................................7, 9, 15, 20 Ruiz v. Woodland Park Obgyn, LLC, No. 15-8300 (KM/MAH), 2016 WL 158522 (D.N.J. Jan. 13, 2016) ..........................19, 20, 21 Shadel v. Shell Oil Co., 195 N.J. Super. 311 (Law Div. 1984) ......................................................................................11 Sullivan v. Novartis Pharms. Corp., 575 F. Supp. 2d 640 (D.N.J. 2008) ....................................................................................7, 8, 9 Thomson v. Novartis Pharmaceuticals Corp., 2007 WL 1521138 (D.N.J. May 22, 2007) (Simandle, J.) .........................................................7 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 4 of 28 PageID: 114 TABLE OF AUTHORITIES (CONTINUED) PAGE iv. TRW Inc. v. Andrews, 534 U.S. 19 (2001) .....................................................................................................................8 United States v. Am. Trucking Ass’ns, 310 U.S. 534 (1940) ...................................................................................................................7 United States v. Cooper, 396 F.3d 308 (3d Cir. 2005).......................................................................................................8 Yocham v. Novartis Pharmaceuticals Corp., 2007 WL 2318493 (D.N.J. Aug. 13, 2007) (Simandle, J.) ........................................................7 STATUTES 28 U.S.C. § 1331 ............................................................................................................................17 28 U.S.C. § 1332 ..............................................................................................................................6 28 U.S.C. § 1332(a)(1) .....................................................................................................................6 28 U.S.C. § 1441 ............................................................................................................................17 28 U.S.C. § 1441(a) .........................................................................................................................6 28 U.S.C. § 1441(b) .........................................................................................................7, 8, 16, 20 28 U.S.C. § 1441(b)(2) ....................................................................................................................1 28 U.S.C. § 1446(c) .........................................................................................................................6 28 U.S.C. § 1447(c) .......................................................................................................................20 29 C.F.R. § 1910, et seq. ..................................................................................................................3 42 C.F.R. § 493, et seq. ....................................................................................................................3 RULES Fed. R. Civ. P. 4(h)(1)(A) ..............................................................................................................10 Fed. R. Civ. P. 4(h)(1)(B) ..............................................................................................................10 N.J. Ct. R. 1:9-3 .............................................................................................................................14 N.J. Ct. R. 4:4-4(a)(6) ..............................................................................................................10, 15 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 5 of 28 PageID: 115 TABLE OF AUTHORITIES (CONTINUED) PAGE v. New Jersey Court Rule 4:4-4(a) ....................................................................................................10 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 6 of 28 PageID: 116 1 I. PRELIMINARY STATEMENT Despite the fact that Plaintiff Stephanie Halliday (“Plaintiff”) is a Texas resident and former Texas employee of Defendant Bio-Reference Laboratories Inc. (“BRLI”) and no one in New Jersey had any involvement with her termination from employment, Plaintiff brought a single-count retaliation Complaint in New Jersey State Court against BRLI. BRLI removed the case to federal court on September 8, 2017. BRLI now submits this brief in opposition to Plaintiff’s Motion for Remand. As an initial matter, Plaintiff asks this Court to disregard the plain language exception to the forum defendant rule set forth in 28 U.S.C. § 1441(b)(2) and find BRLI’s removal improper. However, because the canons of statutory interpretation dictate that significance and effect be given to every word chosen by Congress included in a statute’s text, this Court should follow the holdings of those courts in this jurisdiction who adhere to the plain language of the statute and permit removal by resident defendants like BRLI prior to proper service. Moreover, even the decisions rejecting the plain language exception note that the purpose of the “properly joined and served” standard is to avoid “abuse of the forum defendant rule” by a plaintiff. Accordingly, this Court may consider that Plaintiff, her co- workers/witnesses, supervisor and the decisionmaker for her termination are located in Texas and Colorado, respectively. Nevertheless, Plaintiff admits that she filed in New Jersey State Court because she considers it a more desirable forum for her CEPA claim than Texas. Here, it is Plaintiff who should not be permitted to ignore the plain language of the statute and be “rewarded” for “gamesmanship” and forum shopping. Unlike in the cases cited by Plaintiff which distinguish the plain language exception to the forum defendant rule, BRLI here did not secure removal before service by virtue of digital aptitude or access to electronic dockets, but rather, due to improper and deceptive service tactics by Plaintiff. Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 7 of 28 PageID: 117 2 In her motion, Plaintiff asks this Court overlook and ignore the clear requirements for proper service of process in the Federal Rules of Civil Procedure (“FRCP”) and the New Jersey Court Rules (“N.J. Ct. R.”). Plaintiff’s counsel forwarded a courtesy copy of the filed Complaint to BRLI’s counsel. Over a week later, BRLI’s counsel offered to accept service, but Plaintiff rejected this offer, claimed service had been effectuated and did not draft or obtain a formal acknowledgment of service signed by counsel to effectuate proper service, as required by both the FRCP and N.J. Ct. R. However, Plaintiff’s process server did not properly serve the Complaint - the process server admits that she simply provided a sealed envelope with “legal papers” to Maureen Knox, a customer service representative who was covering the reception desk while the full-time receptionist was at lunch. As stated in the Declarations of Ms. Knox and the full-time receptionist, Audrey Blake, neither are managing agents, neither are authorized to accept service of process and neither did so. To date, BRLI has not been properly served and BRLI was certainly not racing Plaintiff to secure removal. In any event, Plaintiff’s Conscientious Employee Protection Act (“CEPA”) claim implicates a significant federal issue: whether BRLI’s conduct was sufficient for Plaintiff to form an objectively reasonable belief that it had violated federal regulations. Plaintiff argues in her motion that BRLI’s removal based on federal question jurisdiction was improper because Plaintiff “asserts a claim only under New Jersey law.” (Brief in Support of Plaintiff’s Motion for Remand (“Pl. Brief”), at p. 2). However, because the analysis of Plaintiff’s reasonable belief requires an understanding and interpretation of federal regulations applicable to laboratories, the federal court has jurisdiction over this action and is the most capable forum for resolution of this matter. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312-13 (2005). Thus, BRLI respectfully requests that this Court deny Plaintiff’s motion in its entirety. Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 8 of 28 PageID: 118 3 II. STATEMENT OF FACTS On August 22, 2017, Plaintiff filed a Complaint in the Superior Court of New Jersey (“Compl.”) alleging that she objected to and/or refused to participate in conduct that violated the Clinical Laboratory Improvements Act of 1988 (“CLIA”), as implemented by 42 C.F.R. § 493, et seq., and the Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C.A. § 651, et seq., as implemented by 29 C.F.R. § 1910, et seq. and that BRLI, her former employer, retaliated against her as a result in violation of CEPA. Prior to being properly served, BRLI timely removed this matter to the United States District Court for the District of New Jersey on September 8, 2017 on the basis of diversity and federal question jurisdiction. After brief discussions between the parties’ counsel regarding whether removal was proper, Plaintiff filed the instant motion for remand to state court. On September 1, 2017, prior to BRLI’s removal of this action to federal court, Plaintiff’s “professional process server,” Carla Gomes, made a lazy and insufficient attempt to effectuate service of the Summons and Complaint on BRLI. Upon arriving at BRLI’s New Jersey secure headquarters, Ms. Gomes “asked someone outside where [she] would go to deliver papers to Bio-Reference.” (Declaration of Carla Gomes attached as Exhibit F to the Declaration of Glen D. Savits in Support of Plaintiff’s Motion for Remand (“Gomes Decl.”), at ¶ 3). Once inside, Ms. Gomes approached the reception desk and told the woman at the desk, Maureen Knox, that she “had legal documents to serve on Bio-Reference” and “asked her who was in charge of handling legal paperwork and where [did she] have to go to serve the documents.” (Gomes Decl., at ¶ 4). Ms. Gomes handed Ms. Knox the documents in a sealed envelope and did not describe the contents to her. (Declaration of Maureen Knox dated October 11 (“Knox Decl. dated Oct. 11”), at ¶ 2, attached as Exhibit 1 to the Declaration of Amber M. Spataro (“Spataro Decl.”). Ms. Gomes also misleadingly told Ms. Knox that she was delivering papers “from the County.” Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 9 of 28 PageID: 119 4 (Declaration of Maureen Knox dated September 15, 2017 (“Knox Decl. dated Sept. 15”), at ¶ 5, also attached Ex. 1 to the Spataro Decl.). Ms. Knox was a customer service representative who was covering reception while the full-time receptionist was at lunch. (Knox Decl. dated Sept. 15, at ¶¶ 2, 4). Ms. Knox explicitly told Ms. Gomes that she was covering for someone and that she had to ask what to do with “legal documents.” (Gomes Decl., at ¶ 4). While Ms. Gomes was at reception, Audrey Blake, the full-time receptionist, returned from lunch. (Declaration of Audrey Blake dated September 15, 2017 (“Blake Decl. dated Sept. 15”), at ¶ 5, attached as Exhibit 2 to the Spataro Decl.). According to Ms. Gomes, “Ms. Knox told [Ms. Blake] that [Ms. Gomes] needed to serve documents on someone and asked her what to do.” (Gomes Decl., at ¶ 5). However, Ms. Gomes never told Ms. Blake or Ms. Knox that the “documents” contained in the sealed envelope were a summons and complaint initiating a lawsuit against BRLI. (Knox Decl. dated Oct. 11, at ¶ 4; Declaration of Audrey Blake dated October 17, 2017 (“Blake Decl. dated Oct. 17”), at ¶ 3, also attached as Exhibit 2 to the Spataro Decl.). Indeed, in her Declaration, Ms. Gomes admits she repeatedly referred to the concealed documents as “papers,” “legal documents,” “legal paperwork,” “paperwork,” and “legal papers” when communicating with Ms. Knox and Ms. Blake. (Gomes Decl., at ¶¶ 3, 4, and 8). Ms. Gomes also vaguely describes a conversation she purportedly witnessed between Ms. Knox and Ms. Blake and claims that this is evidence that Ms. Knox was authorized to accept service of process. Ms. Gomes states that Ms. Knox asked Ms. Blake what to do “to serve documents on someone” and that “Ms. Blake told Ms. Knox . . . that Ms. Knox can take [the documents] and given them to someone in a certain department.” (Gomes Decl., at ¶ 6). However, because Ms. Knox did not know what the legal documents purportedly being served were (as evidenced by Ms. Knox’s use of the general term “documents” in Ms. Gomes’ Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 10 of 28 PageID: 120 5 description), the conversation between Ms. Knox and Ms. Blake was related to “what to do with various types of legal documents,” but not in relation to the specific documents being served. (Knox Decl. dated Oct. 11, at ¶ 6). Ms. Blake receives “a wide variety of legal paperwork either by mail or hand delivery such as contracts, notices from the New Jersey Department of Health, letters from attorneys, and document subpoenas.” (Blake Decl. dated Oct. 17, at ¶ 4). However, Ms. Blake is not authorized to accept service of a summons and complaint on behalf of BRLI and, had she been informed that the “documents” being delivered were initiating a lawsuit against BRLI, she would have told Ms. Gomes and Ms. Knox that neither she nor Ms. Knox was authorized to accept and had to retrieve a manager. (Blake Decl. dated Oct. 17, at ¶¶ 5-6). Neither Ms. Knox nor Ms. Blake was authorized to accept service of process on behalf of BRLI and neither communicated otherwise to Ms. Gomes at any point during their interaction. (Knox Decl. dated Sept. 15, at ¶¶ 7-8). By her own admission (or omission), Ms. Gomes did not ask either of the women if they were authorized to accept service of process. (Knox Decl. dated Sept. 15, at ¶ 6; Gomes Decl., at ¶¶ 4 and 8). Rather, Ms. Gomes simply left the papers with Ms. Knox and certified on an affidavit of service that Ms. Knox was an “Agent/managing Agent” who was “authorized to accept service, e.g. managing agent, registered agent, etc.” (Gomes Affidavit, Ex. A to Plaintiff’s Motion to Remand). Because the company had still not received service of the summons and complaint by September 5, 2017, BRLI’s counsel Dylan C. Dindial, Esq. wrote to Plaintiff’s counsel Glen D. Savits, Esq. offering to accept service of the Complaint which had been previously emailed to defense counsel. However, Mr. Savits rejected BRLI’s offer to accept service, contending that the Complaint had already been properly served by Ms. Gomes on September 1, and acceptance of service was never acknowledged in an acknowledgement signed by defense counsel as Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 11 of 28 PageID: 121 6 required by the New Jersey Court Rules. (Declaration of Glen D. Savits (“Savits Decl.”), Ex. D to Plaintiff’s Motion to Remand). To date, no acknowledgement of acceptance of service was ever drafted or signed and Plaintiff has still not properly served BRLI by personal service on an agent authorized to accept service of process or through BRLI’s registered office agent for service of process, the Corporation Trust Company, despite the fact that BRLI’s counsel provided Plaintiff with the identity of the registered office agent for service of process. III. LEGAL ARGUMENT A. Removal of This Action on the Basis of Diversity Jurisdiction Was Proper Because the Forum Defendant Rule Does Not Apply Prior to Service. 1. The Exception to The Forum Defendant Rule Follows The Plain Language of the Removal Statute. A state court action may be removed to federal court if that action could have been originally filed in federal court. 28 U.S.C. § 1441(a). Federal courts are vested with such original jurisdiction in cases involving diversity of citizenship. Specifically, 28 U.S.C. § 1332 authorizes federal courts to hear cases involving issues of state law if the parties to the action are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). Thus, a defendant may remove any action filed in state court to federal court if the two diversity requirements are satisfied. 28 U.S.C. § 1446(c). Neither party to this action disputes the existence of either of these requirements for purposes of removal. Plaintiff contends, however, that BRLI’s removal of this action to federal court based on diversity jurisdiction was nonetheless improper under the “forum defendant rule” because BRLI is a New Jersey corporation. However, New Jersey courts recognize an exception to the forum defendant rule based on the plain language of the statute, which states that actions based on diversity are “removable only if none of the parties in interest properly joined and served as Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 12 of 28 PageID: 122 7 defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b) (emphasis added). Thus, following the clear language of the statute, New Jersey courts have held that the forum defendant rule does not bar removal if, at the time the action is removed, the defendant had not yet been properly served. Bivins v. Novartis Pharmaceuticals Corp., 2009 WL 2496518 (D.N.J. Aug. 10, 2009) (Kugler, J.); Ripley v. Eon Labs, Inc., 622 F.Supp.2d 137, 141- 42 (D.N.J. 2007) (Rodriguez, J.); Yocham v. Novartis Pharmaceuticals Corp., 2007 WL 2318493 at *3 (D.N.J. Aug. 13, 2007) (Simandle, J.); Jaegar v. Schering Corp., 2007 WL 3170125 at *2 (D.N.J. Oct. 25, 2007) (Cavanaugh, J.); Thomson v. Novartis Pharmaceuticals Corp., 2007 WL 1521138 (D.N.J. May 22, 2007) (Simandle, J.); Frick v. Novartis Pharmaceuticals Corp., 2006 WL 454360, at *3 (D.N.J. Feb. 23, 2006) (Debevoise, J.). As discussed in detail below, as of September 8, 2017 when BRLI filed its notice of removal, Plaintiff had not properly served BRLI. Therefore, removal was proper. Although Plaintiff is correct in arguing that there is a split in this district regarding whether to follow the plain language exception to forum defendant rule, this Court should apply the exception and permit removal, consistent with the specific and clear language chosen by Congress in drafting the removal statute. See United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”) 2. Courts That Have Distinguished The Plain Language Exception Did So To Avoid Gamesmanship, Which Is What Plaintiff Did When She Sued In New Jersey State Court. The cases cited by Plaintiff in support of her argument that the District of New Jersey does not follow this exception to the forum defendant rule state that Congress’ intent in adding the “properly joined and served” language was to “prevent the fraudulent improper joinder of defendants for the sole purpose of defeating diversity or preventing removal.” See Sullivan v. Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 13 of 28 PageID: 123 8 Novartis Pharms. Corp., 575 F. Supp. 2d 640 (D.N.J. 2008). While this analysis may explain why Congress chose to add the words “properly joined” to the statue, it does not explain the intent behind Congress’ addition of “and served” and, therefore, disregards that Congress also chose to require proper service under 28 U.S.C. § 1441(b). The interpretation of the statute as set forth in Sullivan and the other cases cited by Plaintiff cannot be correct because it runs afoul of the longstanding cannon of statutory interpretation that courts should interpret statutes so that “significance and effect . . . be accorded to every word.” Regions Hosp. v. Shalala, 522 U.S. 448, 467 (1998) (“We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word”) (emphasis added). See also, TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citing Duncan v. Walker, 533 U.S. 167, 174, (2001)) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”) (internal quotation marks omitted); United States v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005) (“It is a well-known canon of statutory construction that courts should construe statutory language to avoid interpretations that would render any phrase superfluous”) (emphasis added). Although other courts in this district have disregarded this principle by interpreting the Congressional intent behind the phrase “properly joined” while according no significance or effect to the phrase “and served,” the U.S. Supreme Court has held that clear statutory language should not be ignored in favor of interpretations resulting in superfluous language simply because other courts have done so. Milner v. Dep’t of Navy, 562 U.S. 562, 576 (2011) (applying the clear statutory language to avoid surplusage and finding that the Court has “no warrant to Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 14 of 28 PageID: 124 9 ignore clear statutory language on the grounds that other courts have done so”). Thus, contrary to Plaintiff’s argument that Honorable Robert B. Kugler, U.S.D.J.’s opinion in Jones v. Johnson & Johnson, No. 14-1379(RBK/KMW), 2014 WL 12577160 (D.N.J. Aug. 14, 2014) indicates a change of position regarding this issue in this district, the cannons of statutory interpretation compel the opposite conclusion: Judge Kugler got it right the first time when he held that Congress plainly intended to require service of the complaint, and not just proper joinder, to trigger the preclusion of removal by the forum resident defendant in a diversity case, and it did so by including the phrase ‘properly joined and served’ so that a plaintiff could not frustrate removal of a diversity case by refraining from serving the resident defendant. To adopt plaintiff's arguments here would read the words ‘and served’ out of the statute. Ripley, 622 F. Supp. 2d at 141. Moreover, as noted in the cases by Plaintiff, the purpose behind the “properly joined and served” rule was to avoid “gamemanship” by a plaintiff. Sullivan v. Novartis Pharmaceuticals Corp., 575 F. Supp. 3d 640, 643 (D.N.J. 2008). As stated by the Sullivan court, a rule perpetrated to prevent gamesmanship should not allow for another type of gamesmanship. Id. at 647. Here, that “gamesmanship” is Plaintiff’s attempt to forum shop with bare bones allegations that New Jersey law covers conduct initiated and carried out by BRLI employees located in Texas and Colorado against Plaintiff, a resident and employee of Texas, simply because BRLI happens to be a New Jersey corporation and she believes that New Jersey state courts are more favorable to employee-plaintiffs than Texas courts.1 (Spataro Decl, ¶ 4). Finally, unlike the 1 Although the parties intend to mediate this matter on November 14, 2017, if mediation fails, BLRI intends to file a forum non conveniens motion as well as a summary judgment motion on the grounds that a CEPA claim cannot be brought when no decisionmaker to an adverse employment action is located in New Jersey or made the decision in New Jersey. New Jersey employment law is not intended to regulate employment by a New Jersey company in every state where it does business. “New Jersey law does not regulate conduct outside the state. Rather, New Jersey law regulates conduct in New Jersey, such as J & J’s alleged orchestration of the bribing of a foreign official and firing of plaintiff…” D’Agostino v. Johnson & Johnson, Inc., 133 N.J. 516, 628 A.2d 305 (N.J. 1993); Papalini v. Sensient Colors, Inc., 2012 WL 1345353 (2012) (“The NJLAD and CEPA apply only to New Jersey employees or, Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 15 of 28 PageID: 125 10 cases cited by Plaintiff in her Motion, BRLI did not remove this case based on electronic access to dockets or as a race to prevent Plaintiff from serving BRLI. Plaintiff rejected BRLI’s offer to accept service, then failed to ever properly serve BRLI. B. Removal of This Action on the Basis of Diversity Jurisdiction Was Proper Because BRLI Was Not Properly Served. 1. Plaintiff Did Not Properly Serve BRLI Prior to Removal. The Federal Rules of Civil Procedure provide two ways to properly serve a corporate defendant. First, Fed. R. Civ. P. 4(h)(1)(B) allows for “delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Second, Fed. R. Civ. P. 4(h)(1)(A) allows a plaintiff to follow the law of the state where the district court is located or where service is made to effect proper service. Under New Jersey Court Rule 4:4-4(a), personal service is the “primary method” of serving a defendant in New Jersey. A corporation is properly served under the New Jersey Court Rules by 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. R. 4:4-4(a)(6). Thus, to have effectuated proper service on BRLI, Plaintiff would have had to have served an “officer, director, trustee or managing or general agent, or any person authorized by appointment or by law to receive service of process.” Plaintiff has the burden of showing that an alleged agent has specific authority, express or implied, for the receipt of process. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 429-30, (App. Div. 2003); Local 617, Etc. v. Hudson Bergen Trucking Co., 182 N.J Super. 16 in limited circumstances, to an employer’s alleged wrongdoing directed at or committed in the State.”). With no conduct in New Jersey, there is no CEPA claim related to the termination of a Texas employee. Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 16 of 28 PageID: 126 11 (App. Div. 1981). See also, Laffey v. Plousis, No. 05-2796, 2008 WL 305289, at *5 (D.N.J. Feb. 1, 2008), aff’d, 364 Fed.Appx. 791 (3d Cir. 2010) (holding that, for service on an alleged agent to be permissible, the plaintiff must show that he relied in good faith on the alleged agent having apparent authority granted by the defendants) (emphasis added). In showing that an alleged agent had apparent authority to accept service, Plaintiff must establish “that the appearance of authority has been created by the conduct of the alleged principal and it cannot be established alone and solely by proof of conduct by the supposed agent.” Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 317-18 (App. Div. 1999). See also, Shadel v. Shell Oil Co., 195 N.J. Super. 311, 316 (Law Div. 1984) (citing 3 Am. Jur. 2d Agency § 74) (“The apparent authority of an agent is to be determined by the acts of the principal, and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal by his acts or conduct has clothed the agent with the appearance of authority.”) Unless circumstances exist which clearly show that authority to accept service of process on behalf of a corporation was intended by the parties, such authorization to accept service would not be deemed to exist. The mere acceptance of service by an employee (other than an officer, director, trustee or managing or general agent) is not sufficient circumstances to establish authority. Jameson, 363 N.J. Super. at 429-30. In her remand motion, Plaintiff claims that her “professional process server,” Carla Gomes, served the Summons and Complaint on Maureen Knox and that Ms. Knox was a “person authorized by appointment or by law to receive service of process on behalf of the corporation.” (Pl. Brief, at p. 7). However, as clearly stated in Ms. Knox’s Declaration dated September 15, 2017 and Supplemental Declaration dated October 11, 2017, Ms. Gomes did not ask if Ms. Knox Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 17 of 28 PageID: 127 12 was authorized to accept service of process on behalf of BRLI and Ms. Knox was not so authorized. (Knox Decl. dated Sept. 15, at ¶¶ 6-7; Knox Decl. dated Oct. 11 ¶¶ 3 and 5.) In fact, Ms. Knox is a Customer Service Representative for BRLI and was merely covering reception while Ms. Blake, the full-time receptionist, was out to lunch. (Knox Decl. dated Sept. 15, at ¶ 4.) That Ms. Gomes did not ask Ms. Knox or Ms. Blake if they were authorized to accept service of process is confirmed by Ms. Gomes’ own declaration submitted in connection with Plaintiff’s Motion for Remand. In her declaration, Ms. Gomes states that she did not ask Ms. Knox or Ms. Blake if they were authorized to accept service of process, instead only asking “who was in charge of handling legal paperwork and where [did she] have to go to serve the documents.” (Gomes Decl., ¶¶ 4 and 8) (emphasis added). Further, Ms. Gomes admits that Ms. Knox told her that she was covering for someone at reception and that she had to ask what to do with the documents, indicating that Ms. Gomes was well aware that Ms. Knox was not authorized to accept service of process. (Gomes Decl., at ¶ 4.) To the extent that Plaintiff contends that “Ms. Blake said that Ms. Knox could accept” the legal papers and that this demonstrated apparent or implied authority to accept service of process, this is simply not a credible inference based on the law and particular factual circumstances. (Gomes Decl., at ¶ 8.) First, Ms. Blake is not a Manager - she is a Receptionist (Blake Decl. dated Sept. 15, at ¶ 1) Ms. Gomes does not assert or allege that she had any impression that Ms. Blake, a receptionist, could confer any authority on Ms. Knox, a customer service representative, to accept service of process. Second, the allegations regarding Ms. Knox and/or Ms. Blake’s actions nor the allegation that Ms. Knox in fact “accepted” the legal papers is sufficient to establish that Ms. Knox had authority to do so. Mercer, 324 N.J. Super. at 317-18 (“the appearance of authority [is] created by the conduct of the alleged principal and it cannot be Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 18 of 28 PageID: 128 13 established alone and solely by proof of conduct by the supposed agent”); Jameson, 363 N.J. Super. at 429-30 (the mere acceptance of service by an employee is not sufficient circumstances to establish authority). Because Ms. Gomes does not point to any conduct by BRLI or a managing agent thereof that created the appearance of authority for Ms. Knox to accept service of process, Ms. Knox cannot be found to have had such authority. Further, it is clear from all declarations submitted that Ms. Knox and Ms. Blake were entirely unaware that the “legal documents” being delivered were a summons and complaint initiating a lawsuit against BRLI. The language used by Ms. Gomes in her declaration is extremely telling in this regard, as she does not represent that she told Ms. Knox or Ms. Blake that she was attempting to serve a summons and complaint on BRLI anywhere in the declaration. Rather, Ms. Gomes coyly indicates that she represented to Ms. Knox merely that she had “legal documents to serve” and refers to these documents at the time of attempted service as simply “papers,” “legal paperwork,” and “legal papers.” (Gomes Decl., ¶¶ 3-4.) In support of her allegation that Ms. Knox was authorized to accept service, Ms. Gomes states that neither Ms. Knox nor Ms. Blake represented “that either of them had to find a manager to accept service.” (Gomes Decl., ¶ 8.) However, this only confirms that Ms. Knox and Ms. Blake did not know the documents being delivered were for service of process. (Blake Decl. dated Oct. 17, at ¶ 4.) Ms. Gomes also vaguely describes a conversation between Ms. Knox and Ms. Blake, the specifics of which she cannot recall, and conclusorily argues that “it was clear from [this] conversation that [she] was there to serve legal papers.” (Gomes Decl., at ¶ 8.) However, because Ms. Gomes admits in her Declaration that she deceptively referred to the documents generally as “legal papers,” neither Ms. Blake nor Ms. Knox knew that the specific “legal papers” were a summons and complaint. This effort by Ms. Gomes to conceal the importance of Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 19 of 28 PageID: 129 14 the documents being served is particularly significant because Ms. Blake receives various legal documents by mail and/or hand delivery such as contracts, notices from the New Jersey Department of Health, letters from attorneys, and document subpoenas, all which constitute “legal papers” that she can accept and deliver because they do not carry the same strict requirements for service as required for a summons and complaint (i.e., hand delivery to a person authorized to accept service of process). See N.J. Ct. R. 1:9-3 (“A subpoena which seeks only the production of documents and records may be served by registered, certified or ordinary mail.”) (Blake Decl. dated Oct. 17, ¶ 4.) As a result, the discussion between Ms. Blake and Ms. Knox (incorrectly recalled by Ms. Gomes) was centered on generally what to do with the various types of legal documents that are hand-delivered or sent by mail to BRLI and not related to the specific documents being delivered by Ms. Gomes. (Knox Decl. dated Oct. 11, ¶ 6.) Further, although Ms. Gomes’ indicates in her Affidavit of Service that Ms. Knox’s “relationship / title” was “Agent / managing agent,” this is neither factually correct nor was it expressly stated or implied from BRLI BRLI’s or Ms. Knox’s conduct. The fact that the Affidavit of Service does not list Ms. Knox’s actual position of Customer Service Representative or substitute receptionist, as was the case at the time of attempted service, is a further indication that Ms. Gomes did not ask the questions or gather the information needed to properly determine whether Ms. Knox was in fact authorized to accept service. Further, it is telling that, despite clear uncertainty by Ms. Knox with respect to how to handle legal papers (as admitted in paragraph 4 of Ms. Gomes’ declaration), Ms. Gomes did not include any comments or remarks in the Affidavit provided to Plaintiff’s counsel after attempted service. Thus, as evidenced by the all of declarations, instead of providing truthful information, behaving in a forthcoming manner, and taking the time to accurately assess whether Ms. Knox Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 20 of 28 PageID: 130 15 had authority to accept service of process as should be done when serving such critical legal documents, Plaintiff’s “professional process server” simply handed an unwitting, substitute receptionist unidentified legal documents and then inexplicably certified that Ms. Knox was an “Agent/managing Agent” who was authorized to accept service of process. Thus, Plaintiff did not properly serve BRLI as required by the federal or state rules prior to removal. 2. It is Plaintiff - not BRLI - Who Has Engaged In Gamesmanship Through Selective Interpretation of Rules and Statutes. On page 11 of Plaintiff’s Motion, Plaintiff accuses BRLI of engaging in gamesmanship simply for exercising its right to remove this action prior to proper service as set forth in 28 U.S.C. § 1441(b). Bivins, 2009 WL 2496518; Ripley, 622 F.Supp.2d at 141-42. Contrary to Plaintiff’s contention and as discussed in detail supra, Plaintiff did not properly serve BRLI on September 1, 2017. Rather, Plaintiff’s process server’s rushed and careless attempt at service on September 1 fell far short of the explicit requirements for service of process on a corporation as set forth in N.J. Ct. R. 4:4-4(a)(6). Not only was Plaintiff’s attempted service wholly insufficient, but Plaintiff’s process server engaged in gamesmanship with Ms. Knox and Ms. Blake in order to get the job “done” without regard for whether it was done right. By not informing Ms. Knox or Ms. Blake that she was serving legal process and instead referring to the documents contained in the sealed envelope generally as “papers,” “legal papers,” or “legal paperwork,” Ms. Gomes never gave Ms. Knox or Ms. Blake the chance to direct her to the proper person or location for service of process on BRLI. Her concealing language indicates that Ms. Gomes did not want to know whether the substitute receptionist, who had to ask someone else what to do with legal papers, was in fact authorized to accept service of process. This is consistent with Ms. Gomes’ own admission that she never even asked Ms. Knox or Ms. Blake whether they were authorized to accept service of process, while still certifying in an Affidavit of Service that Ms. Knox was Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 21 of 28 PageID: 131 16 an “Agent/Managing Agent” who was so authorized. It is also consistent with Ms. Blake and Ms. Knox’s statements that Ms. Gomes told them she was “from the County” delivering legal papers, another example of gamesmanship. Plaintiff uses defense counsel’s offer to accept service of the Complaint as an example of BRLI’s “gamesmanship.”2 In making this argument, Plaintiff confuses following the language of the rules as written with “gamesmanship.” Although defense counsel did in fact offer to accept service over a week after being sent a “courtesy” copy of the Complaint (Ex. A to the Savits Decl. in support of Plaintiff’s Motion), Plaintiff’s counsel rejected the offer and no acknowledgement was signed. In her brief in support of this motion, Plaintiff correctly states the law regarding acceptance of service by a party’s attorney: “New Jersey’s Court Rules permit service through an acknowledgment signed by counsel.” (Pl. Brief, p. 8) (emphasis added). However, despite Plaintiff’s citation to the plain language of the court rule requiring a signed acknowledgement in her brief, Plaintiff now asks this Court to disregard that language in favor of a watered down version of the rules when it favors her. Contrary to the R. 4:4-6, she now asks this Court to determine that a rejected offer to accept service without a signed acknowledgment constitutes sufficient service simply because defendant was provided a copy of the complaint and that BRLI’s removal was improper as a result. Ironically, Plaintiff’s disregard for the requirements for proper service as explicitly set forth in the rules is consistent with her request 2 Plaintiff also argues that “Bio-Reference attempted to mislead this Court by failing to disclose that it received the Service Documents through a process server on September 1, 2017, and that its counsel agreed to accept- and received service of - the Service Documents from Halliday’s counsel on September 5, 2017” in its removal papers. (Pl. Brief, at pp. 17-18). However, receipt of a courtesy copy of the Complaint by counsel without a signed acknowledgment is not proper service. Further, as described in detail supra, Plaintiff’s attempt to serve the Complaint on an unwitting, substitute receptionist, that resulted in the Complaint being lost in transit in Bio- Reference’s internal corporate mail, is also not proper service under federal or state rules. Because service of the Summons and Complaint on Defendant was not effectuated, Defendant’s removal was proper and its receipt of a copy of the Complaint was not relevant to said removal. Thus, Defendant did not attempt to mislead this Court, but rather only incorporated information in the motion that was relevant to removal under 28 U.S.C. § 1441(b). Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 22 of 28 PageID: 132 17 that this Court disregard the Congressional intent in including the words “and served” in 28 U.S.C. § 1441(b). C. Removal of This Action on the Basis of Federal Question Jurisdiction Was Proper Because Plaintiff’s CEPA Claim Implicates Substantial Federal Issues And Interpretation of Federal Law. Federal courts have original jurisdiction over claims “arising under the Constitution, laws or treatises of the United States,” 28 U.S.C. § 1331, and any action filed in state court of which a District Court has original jurisdiction may be removed to federal court. 28 U.S.C. § 1441. In addition to complaints articulating federal causes of action, removal to federal court is proper when a substantial federal issue is necessarily raised and actually disputed. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312-13 (2005); Parrish v. ARC of Morris Cty., LLC, 193 F.Supp.3d 425, 434 (D.N.J. 2016). In Grable & Sons, the United States Supreme Court reiterated “the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues....” Id. at 312. In determining whether federal jurisdiction will lie, courts look to whether the “federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by congress.” Id. at 313. Gunn v. Minton, 133 S.Ct. 1059, 1064-65 (2013); see also Manning v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2013 WL 1164838 (D.N.J. Mar. 20, 2013). Although Plaintiff does not allege a federal cause of action in her Complaint, she has “necessarily raised” a federal issue because her CEPA claim survives or fails based on an interpretation of federal law. In proving her claim, Plaintiff “must set forth facts that would support an objectively reasonable belief that a violation has occurred” and “the trial court must Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 23 of 28 PageID: 133 18 make a threshold determination that there is a substantial nexus between the complained-of conduct and a law or public policy identified by” Plaintiff. Dwonzar v. McDevitt, 177 N.J. 451, 464 (2003). See also, Hitesman v. Bridgeway, Inc., 218 N.J. 8, 32 (2014) (“Accordingly, a pivotal component of a CEPA claim is the plaintiff's identification of authority in one or more of the categories enumerated in the statute that bears a substantial nexus to his or her claim.”) Therefore, in claiming she believed violations were occurring of the CLIA and OSHA regulations in her Complaint, Plaintiff is “identify[ing] the authority that provides a standard against which the conduct of the defendant may be measured.” Hitesman, 218 N.J. at 33. BRLI disputes that any of its conduct was sufficient to form an objectively reasonable belief that a violation of CLIA or OSHA occurred. Thus, Plaintiff’s CEPA claim inescapably requires an interpretation and analysis of federal regulations necessarily raised and actually disputed and requires this Court to measure defendant’s conduct using standards set forth in CLIA and OSHA. Plaintiff’s success depends in large part on whether she can set forth facts that would support a finding that a violation of federal regulations occurred, or - at the very least - facts that would show she reasonably believed BRLI’s conduct violated these federal regulations or laws, something which cannot be shown without an analysis and interpretation of the federal laws against which defendant’s alleged conduct is measured. Plaintiff’s CEPA claim also involves a substantial question of federal law: the interpretation and analysis of federal regulations concerning laboratory safety and quality control and the release of patient test results under CLIA and OSHA. (Compl., at ¶¶ 7, 15-18). These federal regulations are administered by federal government agencies (including the United States Department of Labor (“USDOL”), the Centers for Medicaid and Medicare Services (“CMS”), the Center for Disease Control (“CDC”), and the Food and Drug Administration (“FDA”)), who Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 24 of 28 PageID: 134 19 conduct site inspections, enforce regulatory compliance, certify and monitor laboratories’ compliance with the regulations, and develop and publish rules, regulations, standards and guidelines to be followed. Thus, this case raises important legal issues governed by federal law, involving federal programs administered by federal agencies. Because proper interpretation and analysis of whether Plaintiff had a objectively reasonable basis to believe that CLIA and OSHA had been violated requires an understanding of the regulations as enforced by federal agencies, a substantial question of federal law is raised and federal court is the most capable forum for resolving this matter. Further, because courts in the District of New Jersey often hear cases arising under CEPA, this Court can resolve this matter entirely without disrupting the federal- state balance approved by congress. See, e.g., N.V.E., Inc. v. Palmeroni, No. CV 06-5455, 2017 WL 3917139 (D.N.J. Sept. 7, 2017); Morro v. DGMB Casino LLC, 112 F. Supp. 3d 260 (D.N.J. 2015); Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659 (D.N.J. 2013); Matthews v. New Jersey Inst. of Tech., 772 F. Supp. 2d 647, 654 (D.N.J. 2011). In her brief, Plaintiff cites to Ruiz v. Woodland Park Obgyn, LLC, No. 15-8300 (KM/MAH), 2016 WL 158522, at *4 (D.N.J. Jan. 13, 2016) for the proposition that federal laws forming the basis of a CEPA claim are not sufficient to invoke federal question jurisdiction because CEPA only requires that plaintiffs show a reasonable belief that the federal law at issue had been violated. (Pl. Brief, at pp. 15-16). However, the court in Ruiz does not make the blanket statement that Plaintiff has articulated in her brief. Rather than creating a per se rule prohibiting any CEPA case from forming the basis for federal question jurisdiction, the court in Ruiz decided that there was no substantial federal issue present based on the individual facts of that case. In Ruiz, the defendants argued that plaintiff’s claim that she was retaliated against for complaints regarding violations of the Health Insurance Portability and Accountability Act of 1996 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 25 of 28 PageID: 135 20 (“HIPAA”) triggered federal question jurisdiction. The court disagreed, finding that “[t]he leaking of medical data poses no difficult issue of interpretation of HIPAA,” Ruiz, 2016 WL 158522, at *2, and that “state courts are competent to apply HIPAA to state law claims.” Id. at *3. However, the federal regulations which form the basis of Plaintiff’s CEPA claim in this case are far more complex than HIPAA. An understanding of the CLIA and OSHA regulations as monitored and enforced by the USDOL, CMS, CDC, and FDA is necessary to determine whether BRLI’s conduct had a substantial nexus to these regulations and whether Plaintiff had an objectively reasonable belief that the regulations were violated. Unlike in Ruiz, state courts will be far less competent than federal courts to apply CLIA and OSHA to Plaintiff’s state law claims and, thus, the holding of Ruiz is not applicable to the instant case. Thus, because a court will have to review and to analyze the applicable regulations to determine the reasonableness of Plaintiff’s claim and because that claim implicates significant federal issues, federal question jurisdiction exists and this Court should retain jurisdiction. D. The Court Should Deny Plaintiff’s Request for Sanctions Against BRLI Because BRLI Had an Objectively Reasonable Basis for Removal. Under 28 U.S.C. § 1447(c), courts may award attorney’s fees “only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (emphasis added). Despite Plaintiff’s recitation in her brief of the law governing an award of attorneys’ fees as a result of a successful remand motion, Plaintiff fails to argue whether BRLI had an objectively reasonable basis to remove the case. Indeed, BRLI had an objectively reasonable basis to file its removal motion based on diversity jurisdiction because courts in this district have repeatedly held that removal by a forum defendant is permitted prior to proper service as explicitly set forth in 28 U.S.C. § 1441(b). Bivins, 2009 WL 2496518; Ripley, 622 F.Supp.2d at 141-42. Even the case cited by Plaintiff in Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 26 of 28 PageID: 136 21 support of the opposite conclusion (i.e., that proper service is not a prerequisite for application of the forum defendant rule), the Court found that “given the split of authority in this district concerning the application of the forum defendant rule, it cannot conclude that [BRLI] lacked an objectively reasonable basis for removal.” Jones v. Johnson & Johnson, No. 14-1379 (RBK/KMW), 2014 WL 12577160, at *2 (D.N.J. Aug. 14, 2014). Thus, it is clear that BRLI possessed an objectively reasonable basis for removal and, therefore, an award of fees and costs is not appropriate under the statute. Plaintiff further argues that attorneys’ fees and costs should be awarded because “BRLI attempted to manufacture federal question jurisdiction without any good-faith basis and despite clear case law to the contrary.” (Pl. Brief, at p. 18). However, BRLI did not “attempt to manufacture federal question jurisdiction.” Rather, Plaintiff’s complaint explicitly cites to federal regulations that she believed BRLI violated. Consistent with case law, BRLI removed the action because resolution of Plaintiff’s complaint will require interpretation and analysis of a substantial federal issue: whether BRLI’s conduct could be reasonably believed to be in violation of the requirements set forth the CLIA and OSHA regulations as implemented by various federal agencies. Grable & Sons, 545 U.S. at 312-13. Further, Plaintiff requests attorneys’ fees and costs in this case “despite clear case law to the contrary.” In fact, even in Ruiz, 2016 WL 158522, at *4, a case cited to at length in Plaintiff’s brief, the Court found that the defendants’ had an objectively reasonable basis for removal under federal question jurisdiction and, therefore, attorneys’ fees and costs were not warranted, even though the Court ultimately disagreed with the defendants’ arguments regarding HIPAA as a substantial federal issue. Thus, Plaintiff’s request that this Court award attorneys’ fees and costs related to its motion for remand should be denied. Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 27 of 28 PageID: 137 22 IV. CONCLUSION For the foregoing reasons, BRLI respectfully requests that the Court deny Plaintiff’s Motion to Remand to New Jersey Superior Court and deny her request for an award of attorneys’ fees and costs. Respectfully submitted, LITTLER MENDELSON, P.C. Attorneys for Defendants Bio-Reference Laboratories, Inc. By: /s/ Amber M. Spataro Amber M. Spataro Dylan C. Dindial Dated: October 23, 2017 Firmwide:150548414.3 051146.1080 Case 2:17-cv-06889-KM-SCM Document 8 Filed 10/23/17 Page 28 of 28 PageID: 138