The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MATRIX FINANCIAL SERVICES CORP.,
Plaintiff,
v. Civ. No, 2:22-CV-05967 (WJM)
JOSHUA L. SELTZER and MAY YEUNG
SELTZER, OPINION
Detendants.
WILLIAM J, MARTINI U.S.D.J.
This matter comes before the Court on plaintiff Matrix Financial Services Corp.’s,
(“Plaintiff”) motion to remand. ECF No. 7. Having considered the parties' submissions,
the Court decides the matter without oral argument, See Fed. R. Crv. P. 78(b); L. Civ. R.
78.1(b). For the reasons set forth below, Plaintiff's motion is GRANTED,
L FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2022, Plaintiff filed a foreclosure complaint in the Superior Court of
New Jersey in Hudson County against defendants Joshua L. Seltzer and May Yeung Seltzer
(“Defendants”). Defendatits filed their notice of removal on October 9, 2022, and argued
that their motion for removal was timely because the original complaint did not allege “the
citizenship of the Defendants or the amount of relief being sought,” which Defendants did
not determine until September 27, 2022. Def. Mot. at 5, In tts motion for remand, Plaintiff
argued that removal was not timely because Defendants were served via a process server
with the summons and complaint on August 19, 2022. See Pl. Cert. Ex. 2. Defendants filed
their opposition to the motion to remand on December 11, 2022, and Plaintiff filed its reply
on December 16, 2022.
H. LEGAL STANDARD
“Except as otherwise provided by Congress, any civil action brought in a State court
of which the district courts of the United States have original jurisdiction, may be removed
... to the district court of the United States for the district and division embracing the place
where such action is pending.” 28 U.S.C. § 1441(a). On a motion to remand, “[t]he
removing party ... carries a heavy burden of showing that at all stages of the litigation the
case is properly before the federal court. Removal statutes are to be strictly construed, with
all doubts to be resolved in favor of remand.” Brown y, Jevic, 575 F.3d 322, 326 (3d Cir.
2009) (citations omitted). A notice of removal must be filed “within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief...” 28 U.S.C. § 1446(b)(1).
DI. DISCUSSION
The threshold inquiry for this motion is timeliness. Defendants must have filed their
notice of removal within 30 days of effecting service. However, the Court must inquire as
to when service was properly made.
In determining whether Plaintiffs properly served Defendants before removal, a
federal court must apply the law of the state under which the service was made. See
Granovsky v. Pfizer, ne,, 631 F. Supp. 2d 554, 561 (D.N.J. 2009), New Jersey Court Rule
4:4-4 governs service of process in New Jersey State Courts. Here, Plaintiff contends
Defendants were properly served on August 19, 2022 via an independent process server
under Rule 4:4-4{a) by personally serving Defendant May Yeung Seltzer, who also
allegedly accepted service for Defendant Joshua Seltzer. Plaintiffs filed their proof of
service on September 30, 2022, which include an affidavit of service by David Rojas of
ProVest LLC. Def. Cert. Ex. 2. Return of service creates a “presumption that the facts
recited therein are true.” Garley y. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981).
Although this presumption may be rebutted, it must be shown by clear and convincing
evidence that the return is false. Ze. at 180-81.
Defendants failed to demonstrate service was ineffective based on alleged errors
concerning Defendant May Yeung Seltzer’s physical attributes in the affidavit of service.!
The service processer used by the Plaintiff described the individual that accepted service
at the correct address for the house at issue as a female, aged 50-60, Asian ethnicity, brown
hair, brown eyes, between 5°4” and 5°7” in height and between 151 lbs and 170 Ibs.
Defendants argue via an affidavit of Defendant May Yeung Seltzer that the individual with
whom service was made was neither her nor a household member capable of receiving
service. In support of this, Mrs. Seltzer states in her affidavit that her hair color is not brown
and she weighs 105 lbs. She seemingly does not dispute the age, gender, ethnicity, eye
color, or height as stated in the affidavit of service. Furthermore, in her affidavit, Ms.
Seltzer states she was not home at the time to receive service but alludes to a “Yan Yan
' The cases cited by Defendants for the proposition that failing to file an affidavit of service is a fatal
defect in service of process are inapposite. First, Plaintiff did in fact file an affidavit of service, albeit
unpunctually. Second, the cases cited deal with default judgments, not notices of removal. Burgos vy. Int’
Vacation Club, Lid., dealt specifically with alternative service by mail, which can only be allowed “if it
appears by affidavit satisfying the requirements of R. 4:4-5(b) that despite diligent effort and inquiry
personal service cannot be made,,,” 2012 NJ. Super. Unpub. LEXIS 552, at *6 (Super. Ct. App. Div.
Mar, 13, 2012), US. Bank Nat'l Ass’n vy. Curcio similarly deals with the filing of a service of affidavit
with respect to the timeliness of an entry of default, which is inapplicable here. 444 N.J. Super. 94, 107-
08 (App. Div. 2016). Although there is a pending default judgment in the state action, the only pending
motion before this Court is one for remand.
Yeung” who was home at the time. No affidavit by Yan Yan Yeung was provided showing
she was not the one who accepted service. Therefore, the Court finds that Defendants failed
to meet their burden of clear and convincing evidence that the return is false. As such, the
Court finds that service was effected properly on August 19, 2022. This leads to the
conclusion that Defendants’ notice of removal, which was filed on October 9, 2022 was
well outside the 30-day limit imposed by 28 U.S.C. § 1446(b)(1).
TV. CONCLUSION
For the reasons set forth above, Plaintiffs motion to remand is GRANTED. An
appropriate Order shall follow.
Mi Vp INI, U.S.D.J,
Date: February 9, 2023