Appendix — Maremmont Corp. v. St. John (No. 09-568)

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2573

(D.N.J. No. 2-09-cv-02501)

FLORENCE DIANE ST. JOHN, et al.,

Appellee,

ws

AFFINIA GROUP, INCORPORATED, et al.,

MAREMONT CORPORATION,

Appellant.

ORDER

The foregoing Motion by Appellee Florence Diane

St. John to Remand Case to the Superior Court of the

State of New Jersey, or in the alternative, to Dismiss

Case for Lack of Jurisdiction is hereby GRANTED to

the extent that, for essentially the reasons provided

by the District Court, this matter is REMANDED to

the Superior Court of New Jersey, Middlesex County,

for further proceedings. The Motion by Appellant for

Enlargement of the Record on Appeal with the Tran-

script of the Proceedings from the New Jersey

Superior Court, Middlesex County, before Hon. Ann

G. McCormick on 05/26/09 is denied as moot.

By the Court,

/s/ Kent A. Jordan

Circuit Judge

Dated: 3 September 2009

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APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

Civil Action No. 09-2501 (WJM)

FLORENCE DIANE ST. JOHN, INDIVIDUALLY AND AS

ADMINISTRATOR AD PROSEQUENDUM OF THE

ESTATE OF HAROLD ST. JOHN

Appellee,

V.

AFFINIA GROUP, INC., et al.

Appellant.

~~:

June 8, 2009, Decided

June 8, 2009, Filed

—eee

JUDGES: William J. Martini, Senior United States

District Judge.

OPINION BY: William J. Martini

OPINION

LETTER OPINION

This matter comes before the Court on Defendant

Maremont’s motion to stay the May 29, 2009 order of

this Court remanding the above-captioned action to

state court, pending appeal to the Third Circuit. Oral

arguments were held telephonically on June 1, 2009.

For the reasons stated below, Defendant’s motion is

GRANTED.

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BACKGROUND

This personal injury and wrongful death action

was originally filed by Plaintiff Florence Diane St.

John (“St. John”) in the Superior Court of New Jer-

sey, Middlesex County, on June 19, 2008 (PI.’s Order

to Show Cause P A). The complaint was amended

several times to add additional defendants and reflect

the death of Plaintiff Harold St. John (“Decedent”)

(Pl.’s Order to Show Cause P B). Trial was scheduled

to commence in the Superior Court on May 26, 2009.

At approximately 9 a.m. that morning, immediately

prior to the start of jury selection, Plaintiff notified

the court and the parties that it had reached a set-

tlement with one of the defendants, Honeywell Inter-

national (“Honeywell”) and that Honeywell would

therefore no longer be a party to the action. Honeywell

was the last remaining defendant in the case with a

principal place of business or domicile in the state of

New Jersey (P].’s Order to Show Cause PP D-F).

Shortly thereafter, jury selection began (Pl’s Order

to Show Cause P G). Throughout the morning and ear-

ly afternoon of May 26, both Plaintiff and Defendants

actively participated in the selection process. Defen-

dants exercised multiple peremptory and for-cause

challenges to potential jurors. At the same time and

without giving any indication to the state court that

it was considering removal to federal court, Defendant

Maremont (“Maremont”) conferred with the other

parties to determine the existence of diversity jurisdic-

tion pursuant to Honeywell’s dismissal and drafted

removal papers (PI's. Order to Show Cause P I). Then,

at 2:54 p.m., Maremont electronically filed its notice

of removal with the United States District Court for

the District of New Jersey and at 2:59 p.m., filed a

copy of the notice with the state court clerk’s office.

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Shortly thereafter, Maremont provided copies to the

state court judge and Plaintiff, alerting them to the

removal (Dfdt’s Motion to Stay 3). The notice was

signed by all Defendants. After learning of the filing,

the state court judge temporarily halted jury selection.

On May 27, 2009, Plaintiff filed an order in federal

court to show cause why the matter should not be

remanded to New Jersey state court. This Court con-

sidered the papers submitted by Plaintiff and heard

oral arguments from all parties. The Court concluded

that the case should be remanded and issued an or-

der to that effect. Based upon the remand, the state

court ordered jury selection and trial to resume on

June 2, 2009.

On May 29, 2009, Maremont filed a motion to stay

the remand order, pending appeal to the Third Circuit.

Maremont simultaneously filed a notice of appeal and

an application to the Third Circuit Court of Appeals.

Presently at issue before this Court is: (1) whether

Defendants have the right to appeal the remand or-

der; and (2) whether a stay of the remand order is

waranted.

ANALYSIS

Defendant Maremont brings this motion to stay

pending appeal pursuant to Fed. R. Civ. P. 62(c) and

Fed. R. App. P. 8. As explained below, the Court finds

that Defendants have the right to appeal and that a

stay of the remand order pending appeal is warranted.

I. Defendants Can Appeal the May 28, 2009 Remand

Order

28 U.S.C. § 1447(d) provides in pertinent part that

“an order remanding a case to the State court from

which it was removed is not reviewable on appeal

or otherwise.” On its face, the statutory language ap-

5a

pears to bar appellate review of virtually all remand

orders. However, the Supreme Court has consistently

held that § 1447(d) must be read in conjunction with

§1447(c) such that the statute only bars review of

remand orders based upon the grounds for remand

specified in § 1447(c), namely a lack of jurisdiction in

the federal court. Carlsbad Tech. Inc. v. HIF Bio, Inc.,

129 S.Ct. 1862, 1865-1866, 173 L. Ed. 2d 843 (2009);

Thermtron Products v. Hermansdorfer, 423 U.S. 336,

345-346, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976). § 1447

does not preclude review of an order that was based

upon a court’s discretionary decision to remand a

case. See Carlsbad, 129 S.Ct. at 1867 (a court’s decision

to remand a case rather than exercise supplemental

jurisdiction over state law claims once the only feder-

al claim dismissed was reviewable because removal

was proper initially and the remand was discretionary).

In the present case, at the time Maremont and the

other Defendants removed the case to federal court,

removal was jurisdictionally proper. Diversity of citi-

zenship existed and the amount in controversy satisfied

the $ 75,000 threshold. The case was not remanded

for lack of jurisdiction. Rather, the case was remanded

because Defendants proceeded with trial in state

court while simultaneously preparing to remove the

case to federal court. Whether or not it was their in-

tention, this conduct enabled Defendants to assess

the state court jury pool and then decide whether to

remove. This Court concluded that this behavior con-

stituted a waiver of Defendants’ right to remove, such

that the case had to be remanded.

Because removal was initially proper, the case

could have remained in federal court had Plaintiff not

raised the issued of waiver. Thus, this Court’s deci-

sion to remand the case to state court on the grounds

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of waiver was an exercise of discretion. As such, the

remand order does not fall under § 1447’s purview

and can be appealed.

II. A Stay of the Order is Warranted Pending Appeal

When evaluating a motion for stay pending appeal,

the Court must examine the following factors: (1)

whether the moving party has demonstrated a like-

lihood of success on the merits; (2) whether the moving

party will be irreparably harmed should the motion

be denied; (3) whether the issuance of a stay will

cause substantial harm to the other parties in the ac-

tion; and (4) where the public interest lies. Republic

of Philippines v. Westinghouse Elec. Corp., 949 F.2d

653, 658 (3d Cir. 1991). The factors need not be rigid-

ly applied or weighed equally and no single factor is

determinative of the result. See Hilton v. Braunskill,

481 U.S. 770, 777, 107 S. Ct. 2113, 95 L. Ed. 2d 724

(1987).

In the present case, both consideration of the public

interest and of harm to the other parties if the stay is

granted weigh slightly in favor of the moving party.

As Maremont points out in its papers, granting the

stay may conserve judicial resources and the only

harm to Plaintiff will be a short although not incon-

sequential delay.

More significant here is the consideration of the like-

lihood of success on the merits. As discussed above,

this Court already concluded that by continuing with

jury selection in state court while simultaneously

preparing the case for removal to federal court, Defen-

dants waived their right to remove. See JP Morgan

Chase Bank v. Smith, 2008 U.S. Dist. LEXIS 59032,

2008 WL 2943369 (D.N.J.) (finding that participation

in state court proceedings can constitute waiver of a

Ta

litigant’s right to remove the case to federal court);

see also Charles Alan Wright and Arthur R. Miller,

Federal Practice and Procedure § 3721 (3d ed. 2008)

(stating that “a state court defendant may lose or waive

the right to remove the case to a federal court by tak-

ing some substantial offensive or defensive action in

the state court action indicating a willingness to liti-

gate in that tribunal before filing a notice of removal

with the federal court”).

It was incumbent upon Defendants to notify the

state court and ask for a brief adjournment as soon as

they began contemplating removal. Even if their re-

quest had been denied, merely asking would have

preserved the right.’ But Defendants did not ask. As

Maremont admits in its own papers, it first realized

upon Honeywell’s dismissal that the case had possi-

bly become removable. Yet Maremont did not tell the

state court of its plans until six hours later, after it

filed for removal. During those six intervening hours,

Defendants simultaneous prepared their removal doc-

uments and continued with jury selection. This course

of action enabled Defendants to evaluate the potential

jury pool and then decide whether or not to remove.

Even if this was not Defendants’ intention, permit-

ting this conduct would pave the way for future parties

to jury shop. See Estate of Krasnow v. Texaco, Inc.,

773 F.Supp. 806 (1991), as gtd. in JP Morgan Chase

Bank v. Smith 2008 U.S. Dist. LEXIS 59032, 2008

WL 2943369 (“[A] defendant must not be allowed to

' Indeed, given that the state court judge temporarily ad-

journed the case that afternoon, as soon as she learned of the

removal, it is reasonable to infer that she would have granted

an adjournment that morning, had Defendants informed her

that they were exploring the possibility of removal and needed a

short amount of time to consider their options.

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test the waters in state court and, finding the tem-

perature not to its liking, beat a swift retreat to federal

court. Such behavior falls within the very definition

of forum-shopping and is antithetical to federal-state

court comity”). Defendants’ behavior must be found to

constitute a waiver and therefore the likelihood that

they will succeed upon the merits of their appeal is

siim. This factor on its own does not weigh in favor of

granting the stay, but significantly, it cannot be ex-

amined in isolation.

The most important factor in this examination is

the risk of substantial harm to Defendants should the

stay be denied. Absent the stay, the state court pro-

ceedings would resume. The trial would re-commence

and continue to verdict. Should the Third Circuit find

in favor of Defendants at a later date, there would be

scant relief available to them at that time. Thus,

however small the likelihood that Defendants will

succeed upon the merits, the magnitude of harm that

would result would be so great that this Court finds

in favor of granting Defendants’ motion to stay.

CONCLUSION

For the reasons stated above, Defendants’ motion

for stay pending appeal is GRANTED. An appropri-

ate Order was executed on June 1, 2009.

/s/ William J. Martini

William J. Martini U.S.D..J.

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APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

[Filed 05/29/2009]

Docket No.: 09-cv-2501

FLORENCE DIANE ST. JOHN,

Individually and as Representative of the

Estate of Harold St. John,

Plaintiff,

VS.

CARLISLE, INC., et al.

Defendants.

Hon. William J. Martini, U.S.D.J.

CIVIL ACTION

ORDER

This matter having been opened to the Court on

an emergent application on behalf of Plaintiffs by

Szaferman, Lakind, Blumstein & Blader, P.C. and

Levy Phillips & Konigsberg (Moshe Maimon, Esq.

appearing), on notice to counsel for Defendants; and

the Court having considered the papers submitted in

support of the Order to Show Cause, as well as the

arguments of counsel; and for good cause having been

shown;

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IT IS on this 27th day of May, 2009,

ORDERED that Plaintiffs’ Complaint be and is

hereby remanded to the Superior Court of New Jersey,

Middlesex County; and it is further

ORDERED that a copy of this Order be served on

all counsel of record within seven days.

/s/ Hon. William J. Martini

Hon. William J. Martini, U.S.D.J.

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2573

(D.N.J. No. 2-09-cv-02501)

FLORENCE DIANE ST. JOHN, et al.

ws

AFFINIA GROUP, INCORPORATED, et al.

MAREMONT CORPORATION,

Appellant.

SUR PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC

Present: SCIRICA, Chief Judge, SLOVITER,

McKEE, RENDELL, BARRY, AMBRO, FUENTES,

SMITH, FISHER, CHAGARES, and JORDAN,

Circuit Judges

The petition for rehearing filed by appellants in the

above-entitled case having been submitted to the judges

who participated in the decision of this Court and to

all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular service

not having voted for rehearing, the petition for re-

hearing by the panel and the Court en banc, is denied.

BY THE COURT:

/s/ Kent A. Jordan

Dated: 8 October 2009 Circuit Judge