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

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 

NOT FOR PUBLICATION WITHOUT THE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.

December 3, 2019
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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 discoveryrelated 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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– 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 
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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.
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Reversed and remanded for further proceedings in conformity with this 

opinion. We do not retain jurisdiction.