                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1348-18T1

MAURICE OPARAJI,

          Plaintiff-Appellant,

v.

INNOVATE 1 SERVICES, INC.,
d/b/a ONLINE INTEGRAL
SOLUTIONS, INC.,

     Defendant-Respondent.
____________________________

                    Submitted November 19, 2019 – Decided December 3, 2019

                    Before Judges Fisher and Accurso.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-6600-17.

                    Maurice Oparaji, appellant pro se.

                    John C. Uyamadu attorney for respondent.

PER CURIAM

          Plaintiff Maurice Oparaji filed a complaint in the trial court against

defendant Innovate 1 Services, Inc. in September 2017. After the filing and
disposition of a few motions not relevant here, defendant removed the action to

the United States District Court for the District of New Jersey. That filing

divested our courts of jurisdiction.

      On August 2, 2018, a federal magistrate judge issued a report and

recommendation, which expressed a view that the action should be remanded to

our trial court. Two weeks later, plaintiff filed the report and recommendation

with the clerk of the superior court. Both parties thereafter filed discovery-

related motions in the trial court. After a discovery motion was denied, plaintiff

also sought from us leave to appeal; we denied that application. Defendant then

moved for a dismissal of the complaint without prejudice, claiming plaintiff had

failed to provide requested discovery. The trial court granted that motion on

November 9, 2018.

      On November 16, 2018, the district judge acted on the magistrate judge's

August 2018 recommendation and entered an order remanding the matter to our

trial court. On April 12, 2019, the trial court granted defendant's motion to

dismiss plaintiff's complaint with prejudice pursuant to Rule 4:23-5(a)(2).

      Plaintiff appeals, arguing, among other things, that the trial court lacked

jurisdiction to enter orders after the removal of the action to federal court and

prior to the November 16, 2018 remand order. We agree. Although both parties


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                                        2
– by filing motions after removal but prior to remand – exhibited a desire to

proceed as if an actual order of remand was unnecessary, we cannot overlook

the fact that the trial court lacked jurisdiction to do anything until the district

court's actual entry of a remand order. 28 U.S.C. § 1446(d) (declaring that once

the state court is given notice of the removal, "the State court shall proceed no

further unless and until the case is remanded").

      As we have observed, a federal magistrate judge recommended and

reported to the district judge that in his considered opinion the matter should be

remanded. That report and recommendation, however, only initiated additional

proceedings in federal court that wouldn't end until the district judge

"accept[ed], reject[ed], or modif[ied] the recommended disposition." Fed. R.

Civ. P. 72(b)(3). In short, until the district judge entered an order remanding

the matter, jurisdiction remained in the district court. See United States v.

Raddatz, 447 U.S. 667, 673 (1980). That essential step did not occur until

November 16, 2018.

      We are mindful that the order of dismissal with prejudice was entered after

our courts reacquired jurisdiction. But, a dismissal with prejudice resulting from

a discovery defalcation is the second of a two-step process. Thabo v. Z Transp.,

452 N.J. Super. 359, 369 (App. Div. 2017). As we explained in St. James AME


                                                                           A-1348-18T1
                                        3
Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484-85 (App. Div. 2008),

and as the rules make clear, a party aggrieved by another party's failure to

provide discovery must first move for dismissal without prejudice. R. 4:23-

5(a)(1). If the delinquency is not cured, the aggrieved party may, after the

expiration of sixty days from the date of the prior order, move for dismissal with

prejudice. R. 4:23-5(a)(2).

      Defendant initiated step one, and the order dismissing the complaint

without prejudice was entered, before the case was remanded. That order was

null and void. And, while the order dismissing the complaint with prejudice was

entered after the remand, it cannot stand alone. Because the trial court was

without jurisdiction to enter the first order, the second order lacked the necessary

predicate, without which it cannot be sustained.

      We must conclude that all the orders entered by the trial court after the

action was removed but prior to the November 16, 2018 remand order were

precipitous and must be vacated because the trial court lacked jurisdiction. The

later April 12, 2019 order that dismissed the action with prejudice is reversed

because – while the court had reacquired jurisdiction – it lacked the necessary

foundation for the entry of that order.




                                                                            A-1348-18T1
                                          4
      Reversed and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




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                                          5
