IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DANELLE BOSTROM, et al.,

 Plaintiffs,

v.

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES, et al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-1424 (JBS/JS)

OPINION

APPEARANCES:

Louis Charles Shapiro, Esq.

SHAPIRO & SHAPIRO

1063 EAST LANDIS AVENUE

P.O. BOX 787

Vineland, NJ 08362

Attorney for Plaintiffs 

Rahat N. Babar, Esq.

DEPARTMENT OF LAW & PUBLIC SAFTEY

DIVISION OF LAW

25 MARKET STREET

P.O BOX 116

Trenton, NJ 08625

Attorney for the Defendants

SIMANDLE, District Judge:

I. INTRODUCTION

Plaintiffs filed this action pursuant to 42 U.S.C. § 1983 in

state court, alleging deprivations of constitutional rights, and

Defendants removed the case to this Court. The matter is before

the Court upon the motion of Defendants New Jersey Division of

Youth and Family Services ("DYFS") and New Jersey Department of

Human Services ("DHS") to dismiss the Complaint for failure to

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state a claim. [Docket Item 4.] Plaintiffs have also crossmoved to remand the case to the Superior Court. [Docket Item

11.] For the reasons set forth below, the Court will deny

Plaintiffs' motion to remand and grant Defendants' motion to

dismiss. 

II. BACKGROUND

A. Facts

Plaintiffs Danelle and Stephen Bostrom became foster parents

for DYFS and adopted an infant child, herein known as A.N.B. 

Compl. ¶ 27. According to the Complaint, throughout her

childhood, A.N.B. suffered from aggressive behavior and

depression, leading her to physically attack her mother and

family members. Id. ¶¶ 28-38. 

At around age fourteen, A.N.B. was admitted to a crisis

center, where she was diagnosed with borderline personality

disorder. Id. ¶¶ 40, 42. Plaintiffs feared that A.N.B. was a

danger to the family and would not permit her to return home. 

Id. ¶ 43. Subsequently, A.N.B. was placed in a long-term mental

health facility, but she became pregnant, and DYFS moved her to a

home for young mothers. Id. ¶¶ 43-45. 

A.N.B again went missing from DYFS housing until she was

located by a DYFS agent who contacted Plaintiffs and advised them

that A.N.B. would be returned to their home. Id. ¶¶ 48, 49. 

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After Plaintiffs refused the return of A.N.B., a DYFS worker

allegedly "screamed at Plaintiff . . . and made degrading

comments about Plaintiffs' parenting skills." Id. ¶ 50. DYFS

then allegedly questioned the safety of the Plaintiffs' two sons

and indicated that the agency needed to check on the children's

well–being. Id. ¶¶ 51-55. 

At 1:15 a.m. on December 14, 2006, various state employees

arrived at Plaintiffs' house and examined Plaintiffs' children

for abuse, which they did not find. Id. ¶¶ 57-59. This

encounter forms the basis of Plaintiffs' Complaint. Plaintiffs

allege that DYFS's conduct violated their constitutional rights. 

B. Procedural History

Plaintiffs filed their initial complaint with the Cumberland

County Superior Court of New Jersey on December 11, 2008. The

complaint sought money damages and injunctive relief against

several individuals, as well as two agencies, DYFS and DHS. Id.

¶¶ 64-96. 

In the state court, DYFS and DHS moved to dismiss the

complaint, arguing that neither entity is a "person" amenable to

suit under § 1983. The state trial court partially granted the 1

 42 U.S.C. § 1983, provides: 1

"Every person who under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

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motion, dismissing the claims for money damages against both

entities, but declining to dismiss Plaintiffs' claim for

injunctive relief at that time. Defs.' Br. Ex. A. The court

emphasized that this decision was not final and invited the

moving defendants to renew their motion on the injunctive relief

portion of the complaint at a later time. Id.

Prior to a renewed motion to dismiss, Plaintiffs filed an

amended complaint. Am. Compl. 1. The Amended Complaint named

additional defendants. The initial Complaint included an

unidentified party designated as "Tara (LNU)," but on February

22, 2011, Tara Broglin was named as a direct defendant in place

of the partial designation "Tara (LNU)", and on March 9, 2011,

the Attorney General accepted service of the summons and the

Amended Complaint on behalf of Defendant Tara Broglin. Before

any of the defendants responded to the Amended Complaint,

Defendant Broglin filed a Notice of Removal within thirty days of

her service on March 11, 2011. All defendants consented to the

removal. Id. 

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law . . ."

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III. DISCUSSION

A. Motion to Remand

Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an

action filed in state court to a federal court with original

jurisdiction over the action. For a removal to be procedurally

proper, the motion to remove must be timely under 28 U.S.C. §

1446(b).2

It is undisputed that this Court has original jurisdiction

over the 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331. 

Plaintiffs contend, however, that Defendants DYFS and DHS are not

 The statute provides: 2

The notice of removal of a civil action or

proceeding shall be filed within thirty days

after the receipt by the defendant, through

service or otherwise, of a copy of the initial

pleading setting forth the claim for relief

upon which such action or proceeding is based,

or within thirty days after the service of

summons upon the defendant if such initial

pleading has then been filed in court and is

not required to be served on the defendant,

whichever period is shorter. If the case

stated by the initial pleading is not

removable, a notice of removal may be filed

within thirty days after receipt by the

defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or

other paper from which it may first be

ascertained that the case is one which is or

has become removable, except that a case may

not be removed on the basis of jurisdiction

conferred by section 1332 of this title more

than 1 year after commencement of the action.

28 U.S.C. § 1446(b).

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properly before this Court because the Notice of Removal was not

timely as to them. Plaintiffs argue that the Notice of Removal

only permits Defendant Broglin to be before the district court. 

1. Timeliness of Plaintiffs' remand motion

Once an action is removed, a party may challenge removal by

moving to remand the case back to state court. In order to

defeat the motion to remand, the removing party bears the burden

of showing that the federal court has jurisdiction to hear the

case. Abels v. State Farm Fire & Gas Co., 770 F.2d 26, 29 (3d

Cir. 1995). In addition to the time constraints on removal,

there are also time constraints on motions to remand. A motion

to remand 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." 28 U.S.C. § 1447(c); see also Ariel

Land Owners, Inc. v. Dring, 351 F.3d 611, 613 (3d Cir. 2003)

(finding that remand may only be effected by "a timely motion"). 

Plaintiffs did not move for remand within that period. 

Plaintiffs, unable to dispute the tardiness of their motion,

contend that their motion was intended to provide the Court with

a "procedural mechanism" to remand the case. This is not

sufficient because the District Court has "no authority to order

remand . . . without a timely filed motion," except for lack of

subject matter jurisdiction. Ariel, 351 F.3d at 613; see also

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Air Shields, Inc. v. Fullam, 891 F.2d 63, 66 (3d Cir. 1989)

(holding that the District Court "exceeded its statutorily

defined power" when it remanded a case after the thirty-day time

limitation expired). Plaintiffs' remand motion will be denied

because it is untimely and is not a matter of subject matter

jurisdiction for which timeliness is waived.

2. Appropriateness of Removal

In addition to being untimely, Plaintiffs' motion for remand

is without merit. To be considered timely, a notice of removal

must be filed within thirty days of service of process. 28

U.S.C. § 1446(b). In cases involving only a single defendant,

the Supreme Court has held that the defendant's thirty-day period

to remove does not begin until he or she is served with both

summons and complaint. Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 347-48 (1999) (finding that "mere

receipt of the complaint unattended by any formal service" is not

sufficient to begin the thirty-day period for removal). Thus,

the removal period for a defendant begins to run only once the

defendant is properly served or until that defendant waives

service. See id. at 350.3

 In cases in which removal jurisdiction is based upon 3

diversity of citizenship under 28 U.S.C. § 1332, there is a oneyear limit to removability that cannot be exceeded, see 28 U.S.C.

§ 1446(b), supra, which is inapplicable to this federal question

case. 

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When there are multiple defendants, courts are currently

split as to whether service on the first-served or the lastserved defendant begins the thirty-day period to file a notice of

removal. See Orlick v. J.D. Carton & Son, Inc., 144 F. Supp. 2d

337, 342-43 (D.N.J. 2007) (describing the split). Several older

precedents followed the "first-served defendant" rule, which

"creates only one thirty-day period to remove an action, which

begins when the first defendant is served." Griffith v. Am. Home

Prod., 85 F. Supp. 2d 995, 998 (E.D. Wa. 2000); see also N.Y.

Life Ins. Co. v. Deshotel, 142 F.3d 873, 887 n.4 (5th Cir. 1986)

("If the first served defendant . . . does not effect a timely

removal, subsequently served defendants cannot remove. . .");

Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254,

1262 (5th Cir. 1988). 

More recently, however, four Courts of Appeals have adopted

the "last-served defendant" rule. See Barbour v. Int'l Union,

594 F.3d 315, 326 (4th Cir. 2010) (overturning its prior

precedent that adopted "first-served defendant" rule in light of

the Supreme Court's decision in Murphy Brothers); see also Bailey

v. Janssen Pharamceutica, Inc., 536 F.3d 1202, 1205 (11th Cir.

2008) (noting that, in adopting the rule, "the trend in recent

case law favors the last-served defendant rule"); Marano Enters.

of Kan. v. Z-Teca Rest., L.P., 254 F.3d 752, 755 (8th Cir. 2001)

(adopting the last-served rule because it was "most in keeping

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with the Supreme Court's Murphy Brothers decision"); Brierly v.

Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir.

1999). 

The "last-served defendant" rule permits the last served

defendant to remove the entire case within thirty days of

service. See Cmiech v. Electrolux Home Prod., Inc., 520 F. Supp.

2d 671, 677 (M.D. Pa. 2007) (allowing removal of entire case when

a later-served defendant removed). Accordingly, the other

defendants may consent to the later-served defendant's removal

"even if their own removal periods have expired" or if part of

the case was adjudicated. Di Loreto v. Costigan, 351 Fed. App'x

747, 752 (3d Cir. 2009) (citing Cmiech, 520 F. Supp. 2d at 676);

see also Long Branch Citizens Against Hous. Discrimination, Inc.

v. City of Long Branch, CIV-A No. 09-4980, 2010 WL 3271733, at *4

(D.N.J. Aug. 17, 2010) (finding that removal was proper despite

the state trial court's ruling on issues in a motion to dismiss

prior to removal of the action). However, as in all cases with

more than one defendant, the "rule of unanimity" requires that

all defendants consent to the removal. Lewis v. Rego Co., 757

F.2d 66, 68 (3d Cir. 1985). 

The Third Circuit has not yet ruled on whether the "firstserved" or "last-served" rule is the proper one. See Di Loreto,

351 F. App'x at 752 n.7 (noting that recent authority supports

the "later-served defendant" rule, but leaving "a definitive

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decision on the issue for another day"). For Courts that have

ruled on the issue, the Supreme Court's reasoning in Murphy

Brothers has contributed to the trend toward adoption of the

"last-served defendant" rule. The Court's decision in Murphy

Brothers "supports the last-served defendant rule because a

defendant has no obligation to participate in any removal

procedure prior to his receipt of formal service of judicial

process." Bailey v. Janssen Pharamceutica, Inc., 536 F.3d 1202,

1205, 1208 (11th Cir. 2008) (finding that the "first-served

defendant rule would obligate a defendant to seek removal prior

to his receipt of formal process"). 

Moreover, several judges in this district have found that

"it is counter-intuitive to maintain a 'first-served defendant'

rule." Orlick, 144 F. Supp. 2d at 343 (reasoning that in light 4

of the Supreme Court's decision in Murphy Brothers, a laterserved defendant's time to seek removal should not run until that

 One recent exception to this weight of authority is the 4

holding in Epstein v. Sensory Mgmt. Servs., LLC, No. 07-2113,

2007 WL 2702646, *1 (D.N.J. Sept. 12, 2007). In Epstein, the

Court adopted an "intermediate rule." Id. This rule provides

individual defendants with "thirty days from the time they are

served with process or with a complaint to join in an otherwise

valid removal petition." Epstein, 2007 WL 2702646 at *2. The

Court reasoned that this rule is fair to the later-served

defendant, yet prevents the first-served defendant from getting a

"second bite at the apple." Epstein, 2007 WL 2702646 at *2. The

present case does not present the Epstein situation, however,

because the removing party (Tara Broglin) was not previously

served with process and is not getting a "second bite" to remove

the case. It is Broglin's "first bite" and is timely.

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defendant received proper service of process); see also Pegasus

Blue Star Fund, LLC v. Canton Productions, Inc., 2009 WL 331413,

*7 (D.N.J. Feb. 10, 2009). 

As the other Circuits observed, this Court likewise finds

that the "last-served defendant" rule is consistent with Murphy

Brothers. The "first-served defendant" rule and its slight

variation, the "intermediate" rule, appear to be contrary to the

Supreme Court's holding in Murphy Brothers. 526 U.S. at 347. 

Moreover, to permit a first-served defendant to bind later-served

defendants to a state court forum when those defendants could

have sought removal had they been more promptly served seems

contrary to the interests of equity. Under the facts of this

case, the "first-served defendant" rule and the "intermediate"

rule would require the Court to find that the earlier-served

defendants waived Tara Broglin's right to seek removal before she

became a party to the lawsuit. Thus, in light of Murphy

Brothers, this Court concludes that the "last-served defendant"

rule is in keeping with precedent, is consistent with the trend

of case law, and is the most reasonable interpretation of §

1446(b). Therefore, removal was timely as to all Defendants. 

In summary, Plaintiffs' cross-motion to remand will be

denied because it is untimely and, alternatively, because

Defendant Broglin, with the consent of all defendants, timely and

properly effectuated removal. Defendant Broglin was first named

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as a defendant in the Amended Complaint and did not receive

service until March 9, 2011. Hence, following the "last-served

defendant rule," Defendant Broglin had thirty days from the date

of service to remove the case to the district court, and she did

so. Additionally, since all other defendants consented to the

last-served defendant's removal, all parties were properly 5

removed to the federal court even though both State Defendants'

removal period expired. Therefore, Defendant Broglin's Notice of

Removal and the other defendants' consent permit the entire

action to be before this District Court. 

B. Motion to Dismiss

On a Rule 12(b)(6) motion to dismiss for failure to state a

claim for which relief may be granted, the Court must "accept all

factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be

entitled to relief." Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd.,

292 F.3d 361, 374 n.7 (3d Cir. 2002)). 

 A state waives its Eleventh Amendment immunity when it 5

removes a case from state court to federal court. Lapides v. Bd.

of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 619 (2002)

(finding that a "State's voluntary appearance in federal court

amounted to a waiver of its Eleventh Amendment immunity"). 

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"While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a plaintiff's

obligation to provide the 'grounds' of his 'entitle[ment] to

relief' requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will

not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 

Thus, stating a claim upon which relief can be granted "requires

a complaint with enough factual matter (taken as true) to suggest

the required element" of a cause of action. Twombly, 550 U.S at

555. 

A required element of Plaintiffs' cause of action is that

each defendant is a "person" as the term is used by § 1983. As a

matter of law, Defendants DYFS and DHS are not "persons" amenable

to suit under § 1983, and therefore the Amended Compliant will be

dismissed with prejudice as against DYFS and DHS.6

 The "law-of-the-case" doctrine "posits that when a court 6

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case."

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816

(1988). Despite the state court's ruling on the matter, the

injunctive relief claim is not barred by the law-of-the case

doctrine because the state court did not preclude Defendants from

readdressing the issue of injunctive relief. The state court was

unsure of how the Ex Parte Young exception applied and invited a

subsequent motion to dismiss to be filed on the discrete issue as

to whether the injunctive relief claim stands. Since after

removal "interlocutory orders of the state court are transformed

into orders of the court to which the case is removed," In re

Diet Drugs, 282 F.3d 220, 231-32 (citing 28 U.S.C. § 1450), this

Court is "free to treat the order as it would any such

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Section 1983 provides a federal cause of action against "any

person" who, acting under color of state law, deprives another

individual of a federal right. 42 U.S.C. 1983; see also West v.

Atkins, 487 U.S. 42, 48 (1988) (requiring a plaintiff to show

that the alleged deprivation was committed "by a person acting

under color of state law"). 

The Supreme Court found that "a State is not a person within

the meaning of § 1983." Will v. Michigan Dep't of State Police,

491 U.S. 58, 64 (1989) (holding that § 1983 does not provide an

avenue for litigants against a State for deprivations of civil

liberties). Similarly, governmental entities that are

considered "arms of the State" are not considered "persons" under

§ 1983. Will, 491 U.S. at 70. 

7

interlocutory order it might itself have entered." Long Branch

Citizens Against Hous. Discrimination, Inc. v. City of Long

Branch, CIV-A No. 09-4980, 2010 WL 3271733, as *4 (D.N.J. Aug.

17, 2010). Thus, it is proper for this federal court to

entertain the clarifying motion which the state court invited.

 While the concept of sovereign immunity under the 7

Eleventh Amendment and the scope of "person" under § 1983 are

related, each is distinct. Will, 491 U.S. at 66-67 (finding that

the scope of the Eleventh Amendment and the scope of § 1983 are

separate issues). The Supreme Court's decision in Will looked to

the Eleventh Amendment as guidance in determining Congress'

intended scope of § 1983. 491 U.S. at 67-68 ("in deciphering

congressional intent as to the scope of § 1983, the scope of the

Eleventh Amendment is a consideration, and we decline to adopt a

reading of § 1983 that disregards it."). This reasoning does not

make the two concepts equal. Compare Fitchik v. N.J. Transit

Rail Operations, Inc., 873 F.2d 655, (3d Cir. 1989) (finding that

NJ Transit is not an arm of the State for purposes of the

Eleventh Amendment), with Geod Corp. v. N.J. Transit Corp., 678

F. Supp. 2d 276, 287 (D.N.J. 2009) (holding that NJ Transit if

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Plaintiffs' claims against DYFS and DHS fail because both

are not "persons" under § 1983. DHS was created by New Jersey

statute, is within the executive branch of the New Jersey

government, and thus is an "arm of the state." See N.J.S.A.

30:1-2. Moreover, this Court has previously found that DHS is

not subject to liability under § 1983. Estate of Lydia Joy Perry

ex rel. Kale v. Sloan, Civ. No. 10-4646, 2011 WL 2148813 (D.N.J.

May 31, 2011) (dismissing claims against DHS because the agency

is not a "person" under § 1983). Similarly, this Court held that

DYFS is not a "person" under § 1983. See Simmerman v. Corino,

804 F. Supp. 644, 650 (D.N.J. 1992) (using the three factor test

from Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655

(3d Cir. 1989), in finding that DYFS is an "arm of the state"). 

Therefore, DYFS and DHS cannot be amenable to a suit under §

1983.

Plaintiffs argue that a claim against a state in federal

court for prospective injunctive relief is not barred. 

Plaintiffs mistakenly rely on the exception to state sovereign

immunity set forth in Ex Parte Young, 209 U.S. 123 (1908). In Ex

Parte Young, the Supreme Court held that sovereign immunity does

not apply to prospective injunctive relief against a state

official acting as officers of the state. 209 U.S. at 155-56.

not a "person" under § 1983). Thus, any Eleventh Amendment claim

must be analyzed separately from a claim that an entity is not a

"person" under § 1983. 

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However, the State Defendants have not asserted an Eleventh

Amendment defense, nor are they immune from a federal court

judgment under the Eleventh Amendment since they consented to

removal of this case to federal court. See supra n.5. Instead,

the Defendants contend that they are not amenable to suit because

they are not, by statutory definition, "persons" under § 1983. 

It is settled in the Third Circuit that injunctive relief

cannot be sought under § 1983 if the entity is not a "person." 

See Brow v. Farrelly, 994 F.2d 1027, 1037 (3d Cir. 1993)

(upholding dismissal of injunctive relief because neither the

Territory of the Virgin Islands nor its officers "acting in their

official capacities are 'persons' under 42 U.S.C. § 1983"); see

also Calhoun v. Young, 288 Fed. App'x. 47, 50 (3d Cir. 2008)

(upholding dismissal of monetary damages and injunctive relief

from the State of New Jersey because a State "is not a person for

purposes of § 1983"). Therefore, the Ex Parte Young exception

for injunctive relief is not at issue nor applicable to this

case. The Amended Complaint must be dismissed as to DYFS and

DHS.

IV. CONCLUSION

For the reasons explained above, the Court will deny

Plaintiffs' motion for remand and grant Defendants' motion to

dismiss the Complaint as to Defendants New Jersey Division of

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Youth and Family Services and New Jersey Department of Human

Services. The accompanying Order will be entered.

August 22, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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