United States District Court,

1. New Jersey.

John SCOTT, Plaintiff,

v.

ESTES EXPRESS LINES, INC., Defendant.

Civil Action No. 17–0963–BRM–TJB

|

Signed 09/26/2017

Attorneys and Law Firms

Peter M. Draper, Ronald E. Prusek, Carluccio Leone Dimon Doyle & Sacks LLC, Toms River, NJ, for Plaintiff.

Tricia B. O’Reilly, Eleonore Ofosu–Antwi, Mariel L. Belanger, Walsh Pizzi O’Reilly Falanga LLP, Newark, NJ, for Defendant.

 

 

OPINION

BRIAN R. MARTINOTTI, United States District Judge

*1 Before this Court is Plaintiff John Scott’s (“Plaintiff”) Motion to Remand this action to the Superior Court of New Jersey, Law Division, Ocean County. (ECF No. 7.) Defendant Estes Express Lines, Inc. (“Defendant”) opposes the motion. (ECF No. 9.) Pursuant to Federal Rule of Civil Procedure 78(b), this Court did not hear oral argument. For the reasons set forth herein, Plaintiff’s Motion to Remand is DENIED.

 

 

1. BACKGROUND

On December 15, 2016, Plaintiff filed a complaint in the Superior Court of New Jersey, Ocean County, alleging Defendant is liable for violations of the New Jersey Law Against Discrimination, N.J.S.A. § 10:5–1, et seq. (the “NJLAD”), and violations of the New Jersey’s Conscientious Employee Protection Act, N.J.S.A. § 34:19–1. (Compl. (ECF No. 1–1).) Plaintiff resides in Toms River, New Jersey, and was employed by Defendant as a “pick-up and delivery driver at the Lakewood, New Jersey terminal.” (ECF No. 1–1 ¶ 2 and Answer (ECF No. 4) ¶ 4.) Defendant is a “trucking company engaged in the transportation of freight and related services to the public and private sectors.” (Id. ¶ 3.) It operates trucking terminals in South Plainfield, Lakewood, and Pinebrook, New Jersey. (Id.)

 

On February 13, 2017, Defendant removed the action to this Court. (Not. of Removal (ECF No. 1).) On February 24, 2017, Plaintiff filed a Motion to Remand this matter back to the Superior Court of New Jersey, Ocean County, challenging this Court’s jurisdiction. (ECF No. 7.) Defendant opposes the Motion. (ECF No. 9.)

 

 

1. LEGAL STANDARD

A notice of removal of a civil action must be filed by a defendant within thirty (30) days of receiving the complaint. 28 U.S.C. § 1446(b)(1). However, where it is not evident from the face of the complaint that a case is removable, “a notice of removal may be filed within thirty [ (30) ] days after receipt by Defendants … of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3).

 

Upon the removal of an action, a plaintiff may challenge such removal by moving to remand the case back to state court. Id. § 1447. Grounds for remand include: “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). A motion for remand on the basis of a procedural defect in the removal must be filed within thirty (30) days of the notice of removal, 28 U.S.C. § 1447(c), whereas “a motion to remand based on lack of subject matter jurisdiction may be made at any time before final judgment,” Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1212–13 (3d Cir. 1991) (citing 28 U.S.C. § 1447(c)).

 

“The party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” Samuel–Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Federal courts rigorously enforce the congressional intent to restrict federal diversity jurisdiction, and therefore removal statutes are “strictly construed against removal” and “doubts must be resolved in favor of remand.” Id. at 396–403. Additionally, when a case is removed, “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).

 

 

III. DECISION

*2 Plaintiff challenges removal based on lack of subject matter jurisdiction, not on a defect in the removal process. The parties do not dispute that Plaintiff’s claims satisfy the amount in controversy requirement.1 Plaintiff challenges only the citizenship of Defendant, contending it, like Plaintiff, is a citizen of New Jersey.

 

“For the purposes of [28 U.S.C. §§ 1332 and 1441], a corporation shall be deemed to be a citizen of every State … by which it has been incorporated and of the State … where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). The United States Supreme Court adopted a “nerve center” test to identify a corporation’s principal place of business. See Hertz Corp. v. Friend, 559 U.S. 77 (2010). In Hertz, the Supreme Court held a corporation’s principal place of business is “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.” Id. at 92–93. The Court went on to state, “in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center,’ and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).” Id. at 93; see also Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013).

 

In support of its Motion, Plaintiff argues Defendant: (1) conducts business in New Jersey, with physical terminals serving four New Jersey locations; (2) is seeking to hire individuals for managerial and executive assistant positions in those New Jersey physical terminal locations; and (3) has a subsidiary company, Estes Forwarding Worldwide, LLC (“EFW”), which maintains a regional corporate office in New Jersey. (ECF No. 7–2 at 3.)

 

In opposition, Defendant submits a declaration from Tracy Hughes (“Hughes”). (ECF No. 9–1.) Hughes is currently employed by Defendant as a Senior Director of Compliance and Employee Relations. (Id. ¶ 2.) Hughes certified Defendant’s “corporate office, headquarters, and principal place of business is located in Richmond, Virginia” and Defendant’s officers are based at the Richmond office. (Id. ¶¶ 3–4.) She further affirmed:

5. [Defendant’s] corporate office houses the company’s human resources, safety, payroll, operations, administrative, fleet services, marketing, accounting, customer service, and information technology departments, as well as line haul trucking central dispatch.
6. From the corporate office, [Defendant’s] senior management directs, controls and coordinates [Defendant’s] corporate activities and establishes and implements [Defendant’s] overall corporate policies and business strategies for the entire company. All company-wide decisions are made and effected from the corporate office.

*3 (Id. ¶¶ 5–6.)

 

The Court finds Hughes sworn declaration demonstrates Defendant’s “nerve center” is located in its corporate office/headquarters in Richmond, Virginia. See Hertz Corp., 559 U.S. at 93 (finding “[a] corporation’s ‘nerve center,’ [is] usually its main headquarters”). Hughes’s declaration establishes that all major strategic decisions (corporate policies and business strategies) for Defendant and most major corporate functions (human resources, accounting, payroll, and marketing) are managed out of Richmond, Virginia, not New Jersey.

 

While Plaintiff raises valid concerns as to Defendant’s citizenship, only one state may constitute a corporation’s principal place of business. See Hertz Corp., 559 U.S. at 93 (finding “[a] corporation’s ‘nerve center’ … is a single place”). Indeed, Defendant operates 152 trucking terminals located in thirty-seven (37) states in the United States, identical to the four it operates in New Jersey, and has various subsidiaries,2 whereas Defendant’s nerve center is Richmond, Virginia. (See ECF No. 9–1 ¶¶ 7–8.) Plaintiff’s allegations to the contrary, are insufficient to undermine Hughes’s declaration. See Maignan v. Precision Autoworks, No. 13–3735, 2014 WL 201857, at *3 (D.N.J. Jan. 15, 2014) (finding that plaintiff’s allegations contained solely within its briefing were unable to challenge the sworn statements in defendant’s declaration establishing that defendant’s center of direction, control and coordination was in Pennsylvania, not New Jersey); Harris v. Bristol–Myers Squibb Co., No. 11–6004, 2012 WL 1243260, at *2 (D.N.J. Apr. 12, 2012) (finding removal to federal court in New Jersey appropriate where defendant’s general counsel certified its headquarters was in New York, listed its New York address on all regulatory filings with the SEC, defendant’s CEO kept his primary office in New York, other members of defendant’s senior leadership kept primary offices in New York, the board of directors met in new York, and defendant maintained its books and records in New York). Therefore, the Court finds Defendant’s principal place of business and nerve center is Richmond, Virginia. Accordingly, Plaintiff’s Motion to Remand is DENIED.

 

 

1. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Remand (ECF No. 7) is DENIED.

 

All Citations

Slip Copy, 2017 WL 4268039, 2017 Fair Empl.Prac.Cas. (BNA) 340,774

 

 

Footnotes

1

“In determining whether the amount in controversy reaches the threshold of $75,000.00, the court generally accepts the plaintiff’s good faith allegations.” McCollum v. State Farm Ins. Co., 376 Fed.Appx. 217, 220 (3d Cir. 2010) (citing Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995)). “A case may be dismissed for failure to meet the amount in controversy requirement only if it appears to a ‘legal certainty’ that the claim is for less than the jurisdictional amount.” Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Dardovitch v. Haltzman, 190 F.3d 125, 135 (3d Cir. 1999)).

2

Hughes’s declaration certifies that EFW’s corporate office and principal place of business is also Richmond, Virginia. Specifically, she affirms EFW’s management team directs its business activities and strategies out of the Richmond, Virginia office. (ECF No. 9–1 ¶ 8 and ECF No. 9 at 8.) Therefore, Plaintiff’s argument that Defendant’s subsidiary obtains “a regional corporate office in New Jersey” is meritless. (See ECF No. 7–2 at 3.)

United States District Court,

E.D. North Carolina,

Western Division.

PCX HOLDING, LLC, Plaintiff,

v.

GUY M. TURNER, INC., and Relay Associates, Inc., Defendants.

Relay Associates, Inc., Third-Party Plaintiff,

v.

Altran Solutions Corp., Third-Party Defendant.

No. 5:17-CV-95-BO

|

Signed 10/19/2017

 

 

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

*1 This cause is before the Court on Defendant Guy M. Turner Inc.’s Motion to Dismiss Defendant Relay Associates’ claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure [DE 24], Defendant Turner’s motion to strike Defendant Relay Associates’ surreply brief [DE 37], and Third-Party Defendant Altran Solutions’ motion for partial judgment on the pleadings [DE 34]. The matters have been fully briefed and are ripe for ruling. For the reasons discussed below, the motion to dismiss is DENIED, the motion to strike the surreply is DENIED, and the motion for partial judgment on the pleadings is GRANTED.

 

 

BACKGROUND

The seeds of this case were sown when an oversized truck bearing electronic equipment was hit by a train in Halifax, North Carolina in 2015. The truck was bound for New Jersey, where third-party defendant Altran had contracted with defendant Relay Associates to build a control house as part of an electrical switching station. Defendant Relay Associates in turn hired plaintiff PCX, a North Carolina corporation, to build the control house sections. Once the sections were completed, plaintiff PCX, through a shipping broker, hired defendant Turner to transport the pieces from North Carolina to New Jersey. En route, the truck bearing one of the sections was hit and the cargo was destroyed. Most of the underlying merits claims, which include claims for damages between PCX and Relay Associates, PCX and Turner, Relay Associates and Turner, and Relay Associates and Altran, are not yet before this Court.

 

Defendant Relay Associates filed a crossclaim against defendant Turner, asserting a negligence claim stemming from the destruction of the control house section. Defendant Turner has moved to dismiss that claim. Additionally, defendant Turner has filed a motion to strike a surreply filed by defendant Relay Associates. Finally, Relay Associates’ series of claims against Altran include a claim under the New Jersey Prompt Pay Act, which is the subject of Altran’s motion for partial judgment on the pleadings.

 

This Court has jurisdiction over the claim plaintiff PCX brought against defendant Turner on the basis of the federal question asserted, 49 U.S.C. § 14706. This Court has jurisdiction over the remaining claims between the various parties under diversity jurisdiction, 28 U.S.C. § 1332, as well as supplemental jurisdiction, 28 U.S.C. § 1367.

 

 

ANALYSIS

Defendant Turner’s Motion to Dismiss

Defendant Turner’s motion to dismiss defendant Relay Associates’ crossclaim is made under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), “the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual allegations do not nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

 

*2 Defendant Relay Associates, in its crossclaim against defendant Turner, asserts a cause of action sounding in negligence. To do so, a claimant must allege the following: a duty, breach of that duty, causation, and damages. E.g., William L. Thorp Revocable Trust v. Ameritas Inv. Group, 57 F. Supp. 3d 508, 531 (E.D.N.C. 2014). Defendant Relay Associates has pled enough facts to state a claim. It has alleged that defendant Turner owed defendant Relay Associates a duty of due care. It has alleged specific facts as to defendant Turner’s neglect of that duty when crossing the train tracks. It has alleged that this negligence led to a train hitting the equipment on the truck. And it has alleged that the destruction of the equipment on the truck led to its injury. These facts suffice to state a tort claim.

 

Defendant Turner, in its motion to dismiss defendant Relay Associates’ negligence claim, argues that the claim is preempted by the Carmack Amendment to the Interstate Commerce Commission Act, 49 U.S.C. § 14706. The Carmack Amendment provides a mechanism to resolve contractual and tort disputes between carriers and shippers. Turner is undisputedly the motor carrier. But Relay Associates has alleged facts sufficient to argue that it is neither the shipper nor on the bill of lading, and thus is not controlled by the Carmack Amendment. At this juncture, such factual claims are substantial enough that a motion to dismiss should not be granted. Relay Associates has stated a plausible claim.

 

 

Defendant Turner’s Motion to Strike Defendant Relay Associates’ Surreply

Defendant Turner also filed a motion to strike defendant Relay Associates’ surreply regarding the above claim. While surreply briefs are generally disfavored, this Court has the discretion to permit them. See Osei v. University of Maryland University College, 202 F. Supp. 3d 471 (D. Md. 2016). The Court declines to strike the surreply brief at issue here. The motion is therefore denied.

 

 

Third-Party Defendant Altran’s Motion for Partial Judgment on the Pleadings

Under Rule 12(c) of the Federal Rules of Civil Procedure, a judgment on the pleadings is appropriate when no set of facts would entitle a plaintiff to relief under his claim. Fed. R. Civ. P. 12(c); Gibby v. Int’l Bus. Machines Corp., 155 F.3d 559 (4th Cir. 1998). The claim at issue here is one of several defendant Relay Associates brought against third-party defendant Altran when involving it in the proceeding before this Court. It alleges a violation of the New Jersey Prompt Payment Act, or NJPPA. N.J.S.A § 2A:30A. The text of the NJPPA itself restricts it as a cause of action outside the state of New Jersey. N.J.S.A § 2A:30A-2f (“In any civil action brought to collect payments pursuant to this section, the action shall be collected inside of this state.”). “The terms of the NJPPA are unequivocal.” First Gen. Const. Corp. v. Kasco Const. Co., 2011 WL 2038542, at *2 (E.D. Pa. 2011). This claim is restricted to New Jersey. As this lawsuit is proceeding outside of New Jersey, it is appropriate to grant judgment for third-party defendant Altran.

 

 

CONCLUSION

For the foregoing reasons, Defendant Guy M. Turner Inc.’s Motion to Dismiss Defendant Relay Associates’ claim [DE 24] is DENIED, Defendant Turner’s motion to strike Defendant Relay Associates’ surreply brief [DE 37] is DENIED, and Third-Party Defendant Altran Solutions’ motion for partial judgment on the pleadings [DE 34] is GRANTED.

SO ORDERED, this 19 day of October, 2017.