                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2005

McBride v. West Orange
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2736




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"McBride v. West Orange" (2005). 2005 Decisions. Paper 1406.
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                                                     NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                           ___________

                      Nos. 04-2736 and 04-2737
                            ___________


                        MARJONI MCBRIDE

                                 v.

     TOWNSHIP OF WEST ORANGE; TOWNSHIP OF WEST ORANGE
      POLICE DEPARTMENT; ANDREW MCCRONE, Police Officer;
    BOYESKNE; BEHAR; W. CONNOLLY; J. CONNOLLY, Police Officer;
  JOSEPH RACANTIELLO, Sergeant; FEDER; MURPHY; DEMARS; NEVES;
   KOEHLER; CONDON; GROVES; DRYLICA, (ID Number 57); ABBOTT;
                   DOES I through X, Inclusive

                        Township of West Orange, Township of West Orange
                        Police Department, Andre McCrone, Boyeskne, Behar,
                        W. Connolly, J. Connolly, Joseph Racantiello, Feder,
                        Murphy, Demars, Neves, Koehler, Condon, Groves,
                        Drylica and Abbott, Appellants at No. 04-2736

                            __________


DANE WEEKS; JERMOLT MORGAN; JAMAIN MORGAN; YOLANDA POLHILL;
    XAVIER JOHNSON; LATOYA HUTCHINS; STEVEN SAUNDERS, JR.

                                 v.

 TOWNSHIP OF WEST ORANGE; WEST ORANGE POLICE DEPARTMENT;
ANDREW MCCRONE; W. CONNOLLY; J. CONNOLLY; KOEHLER; CONDON;
BOYESKNE; GROVES; BEHAR; MURPHY; DEMARS; NEVES; JOHN FEDER;
     JOSEPH RACANIELLO; DRYLIG, West Orange Police Officers;
      JOHN DOES, 1 THROUGH 20, (fictitious names, true identities
        presently unknown, of West Orange Police Officers or other
            employees, agents and/or representatives of the West Orange
           Police Department and/or the Township of West Orange) all in
                              their official capacities


                               Township of West Orange, Township of West Orange
                               Police Department, Andre McCrone, W. Connolly, J.
                               Connolly, Koehler, Condon, Boyeskne, Groves, Behar,
                               Murphy, Demars, Neves, John Feder, Joseph
                               Racanieello, Drylig, Appellants at No. 04-2737

                                  ___________


                 On Appeal from the United States District Court
                           for the District of New Jersey
                 (D.C. Civil Nos. 03-cv-05649 and 03-cv-05650)
                  District Judge: The Honorable Jose L. Linares

                                  ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                               March 10, 2005

           Before: NYGAARD, McKEE, and RENDELL, Circuit Judges.


                            (Filed:   March 30, 2005)

                                  ___________

                           OPINION OF THE COURT
                                ___________


NYGAARD, Circuit Judge.




                                        2
               Appellants Township of West Orange, West Orange Police Department, and

several individual West Orange Police Officers (“individual Defendants”), appeal from an order

of the District Court remanding Appellees consolidated federal civil rights and state law tort

actions to the Superior Court of New Jersey. Because we are without jurisdiction to review the

decision to remand, we will dismiss the appeal.

                                                  I.

               On July 14, 2003, Plaintiffs Marjoni McBride and Dane Weeks served complaints

on the Township of West Orange. The complaints, filed in New Jersey Superior Court, alleged

violations of their federal civil rights and state tort law. That same day, process server Charles

Nicastro attempted to serve the individual Defendants with summonses and the complaints at the

West Orange Police Department. Nicastro did not effect personal service upon the individual

Defendants. Instead, he left the papers with Lieutenant Robert Williams. The parties dispute

whether Lieutenant Williams represented to Nicastro that he had the authority to accept service

of process on behalf of the individual Defendants, but it appears that he did not actually have that

authority.

               Several of the individual Defendants filed a notice of removal to federal court on

November 26, 2003, nearly four months after the complaints were delivered to the Police

Department. The Township never filed a notice of removal of its own, but it did assent to the

removal by the individual Defendants. On December 24, 2003, the Weeks Plaintiffs filed a

“Notice of Motion to Remand Complaints” with the District Court. Although the Weeks and

McBride cases had not yet been officially consolidated (Plaintiffs and Defendants had drafted,

but not yet filed, a consent order for consolidation), (Supp. App. at A3–5), and although the


                                                  3
McBride docket sheet did not reflect that this motion had been filed, the motion appears to have

been filed on behalf of all Plaintiffs. It states specifically, “plaintiffs will move . . . for an order

remanding the above entitled action, and the action entitled Marjoni McBride v. Township of

West Orange et al., bearing Civil Action No.: 03:5649, from the United States District Court for

the District of New Jersey to the Superior Court of New Jersey.” Similarly, on the day the

motion was filed, counsel for Weeks sent a letter to Defendants’ counsel explaining that “the

motion is filed jointly on behalf of my clients in the above referenced action, and Marjoni

McBride in the matter entitled Marjoni McBride v. Township of West Orange et al. . . .” (Supp.

App. at A1).

                On March 25, 2004, the Magistrate Judge found the individual Defendants’ notice

of removal to be untimely and recommended that the District Court grant the motion to remand

for that reason.1 The District Court adopted the Magistrate’s Report and Recommendation on

May 28, 2004 and this appeal followed.

                                                    II.

                A District Court’s order granting a motion to remand is a final and appealable

order under 28 U.S.C. § 1291. In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 449 (3d Cir.

2000). Generally we review questions of federal jurisdiction and a district court’s statutory

authority to grant a motion to remand de novo. Cook v. Wikler, 320 F.3d 431, 438 n.8 (3d Cir.




1.       The Magistrate Judge treated the motion as a joint motion because counsel for
McBride represented that his client joined in the motion, which was actually filed by
counsel for Weeks.

                                                    4
2003). As discussed below, however, we are presently without jurisdiction to review the District

Court’s order. See 28 U.S.C. § 1447(d).

                                                 III.

               A defendant who wishes to remove a case to federal court must file a notice of

removal within thirty days after receiving a copy of the complaint. 28 U.S.C. § 1446(b). The

District Court granted the motion to remand on the basis that the individual Defendants’ motion

to remove—filed four months after Nicastro delivered the complaint to the Police

Department—was untimely. Defendants argue that the motion to remand was not untimely.

They contend that service on the individual Defendants was never properly effected under New

Jersey law, and therefore the thirty-day period in which to file the notice of removal had not

expired by the date the notice to remove was filed. Unfortunately for Defendants, we are without

jurisdiction to review the merits of their claim concerning the validity of the service of process.

               By statute, “[a]n order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). Although section

1447(d) appears to be a per se bar on appellate jurisdiction, its scope has been limited by the

Supreme Court. In fact, “only remands based on grounds specified in § 1447(c) are immune

from review under § 1447(d).” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711–12 (1996)

(quotation omitted). Section 1447(c) provides: “A motion to remand the case on the basis of any

defect other than lack of subject matter jurisdiction must be made within 30 days after the filing

of the notice of removal. . . .” A remand granted on any other basis is subject to appellate

review. In re FMC, 208 F.3d at 448. If, however, a district court remands for one of the reasons

set forth in section 1447(c)—a timely raised defect in removal procedure or the lack of subject


                                                  5
matter jurisdiction—we have no jurisdiction to entertain an appeal challenging the propriety of

the remand order. Cook, 320 F.3d at 434. Whether the ultimate decision to remand was

“erroneous or not” is beyond the scope of our review. Thermtron Prods., Inc. v. Hermansdorfer,

432 U.S. 336, 343 (1976) (emphasis added).2

               The District Court remanded on one of the grounds specified in 1447(c), and we

are without jurisdiction. The Weeks Plaintiffs filed a timely motion to remand, claiming that the

individual Defendants’ motion to remove was not timely filed. It is well-settled that the failure to

file a timely notice of removal is a defect in removal procedure. Ariel Land Owners, Inc. v

Dring, 351 F.3d 611, 614 (3d Cir. 2003). Thus, pursuant to section 1447(d), we are without

jurisdiction to review the merits of the District Court’s decision.

               Defendants argue that we have jurisdiction because the District Court’s remand

was not grounded in section 1447(c). According to Defendants, because the individual

Defendants were not properly served under New Jersey law the removal notice was actually

timely, and thus section 1447(c) did not grant the District Court with the authority to remand.

This argument is nothing more than a challenge to the merits of the District Court’s decision to

remand, and regardless of how Defendants style their challenge, we are without jurisdiction to

consider it. As long as a motion to remand based on a defect in removal procedure—in this case

the failure to file a timely notice of removal—has been timely filed, section 1447(d) precludes

our review of a district court’s decision to order a remand. Cook, 320 F.3d at 434. Whether a




2.       Although section 1447(c) was slightly different at the time Thermtron Products
was decided, we have applied the holding of that case equally to the current version of
section 1447(c). See Cook, 320 F.3d at 434.

                                                  6
district court was correct in granting a remand is beyond our review. See Thermtron Prods., Inc.,

432 U.S. at 343. Here, the District Court granted a remand based on a timely filed motion

claiming a defect in removal procedure. We are without jurisdiction despite Defendants’

protestations to the contrary. To hold otherwise would permit review of nearly any remand order

whenever a defendant could conflate the merits of the district court’s decision with its statutory

authority to render that decision.

               Defendants offer a second reason why we may review the remand order. They

argue that even if the Weeks Plaintiffs filed a timely motion to remand, McBride did not. Thus,

they argue, at least with respect to McBride, the District Court did not grant the remand pursuant

to section 1447(c). Again, we are unpersuaded by Defendants’ argument. The record reflects

that the Weeks motion to remand, which was timely filed, was filed on behalf of McBride as

well. The motion is docketed as “MOTION to Remand complaints 03-5650 and 03-5649 to

Superior Court of Essex County. . . .” (App. at A47). Complaint 03-5649 is McBride’s action

against Defendants. Moreover, the motion itself states that it was filed on behalf of both the

Weeks Plaintiffs and McBride. Counsel for Weeks explained this fact to Defendants’ counsel by

letter at the time of the motion. And, finally, the Magistrate Judge in his Report and

Recommendation explicitly noted that the motion to remand would be treated as a joint motion.

Defendants’ assertion that McBride never filed a timely motion to remand is therefore

disingenuous, especially given the fact that counsel for Defendants himself drafted a consent

order to consolidate the case before the timely Weeks motion was filed. (Supp. App. at A3–5).

Thus, we disagree with Defendants that McBride was not a party to the Weeks motion. We hold




                                                 7
that the motion to remand filed by Weeks was a timely joint motion, granted on the basis of a

defect in removal procedure.

                                               IV.

              The District Court had the statutory authority to grant the motion to remand under

28 U.S.C. § 1447(c). Accordingly, pursuant to 28 U.S.C. § 1447(d), we have no jurisdiction to

review its decision. The appeal should be dismissed.




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