NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

JOSEPH ROMEO, et al., : CIVIL ACTION NO. 11-3727 (MLC)

 :

Plaintiffs, : O P I N I O N

 :

v. :

 :

JC PENNEY, et al., :

 :

Defendants. :

 :

THE PLAINTIFFS, Joseph Romeo (“Romeo”) and his wife, Fran

Romeo, citizens of New Jersey, brought this action in state court

against Defendants, J.C. Penney Corporation, Inc. (“JCPC”), Jess

Stoop, and Kimberly Schwartz (collectively, “Named Defendants”),

to recover damages stemming from personal injuries allegedly

suffered by Joseph Romeo. (Dkt. entry no. 1, Rmv. Not., Ex. A,

Compl.) The plaintiffs have also sued several fictitious 1

defendants. (Id.) Named Defendants removed this action pursuant

to 28 U.S.C. §§ 1441 and 1332. (Rmv. Not. at ¶ 8.)

PLAINTIFFS SPECIFICALLY ALLEGE that Romeo slipped and fell

on January 2, 2011 “on the premises[] of a store named JCPenney,

located at 3710 Highway 9, Freehold, New Jersey” (“Premises”),

which was managed by Stoop and Schwartz, and “owned by, leased

 JCPC contends that the plaintiffs also improperly sued JC 1

Penney, J.C. Penney Company, Inc., and J.C. Penney Properties,

Inc. (Rmv. Not. at ¶ 1.) The Court will, without rendering an

opinion on the propriety of naming JC Penney, J.C. Penney Company,

Inc., and J.C. Penney Properties, Inc. as defendants to this

action, refer to all four named JC Penney entities simply as JCPC.

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by, managed by, maintained by, operated by, occupied by, rented

by, used by, or was under the management, custody, control, or

supervision of” JCPC. (Compl. at 1, 2, 7, 9.) They allege that

Stoop and Schwartz were negligent, in that they caused or failed

to prevent others from causing the creation of a defective and

dangerous condition (“Condition”) upon the Premises, and that

such negligence caused Romeo to fall and suffer injuries. (Id.

at 2-6, 8-10.) They further allege that Fran Romeo has suffered

a loss of consortium. (Id. at 11.)

THE COURT DEEMS JCPC to be a citizen of both Delaware and

Texas. (See Rmv. Not. at ¶ 4 (alleging that JCPC is a

corporation “organized and existing under the law of the state of

Delaware with a principle [sic] place of business located [in]

Texas[.]”).) See 28 U.S.C. § 1332(c). Stoop and Schwartz are

citizens of New Jersey. (Rmv. Not. at ¶¶ 5-6; dkt. entry no. 8,

Opp’n Br. at ¶¶ 10-11.)

BECAUSE COMPLETE DIVERSITY IS LACKING ON THE FACE OF THE

PLEADINGS, REMOVAL WAS IMPROPER

Because Stoop and Schwartz are citizens of New Jersey, this

action lacks complete diversity. See 28 U.S.C. § 1332(a)(1);

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). But JCPC

alleges that Stoop and Schwartz “bear[] no liability for this

action” and that the plaintiffs fraudulently joined Stoop and

Schwartz only to defeat removal of the action from state court to

this Court. (Rmv. Not. at ¶¶ 5-6; see also Opp’n Br.) 

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Fraudulent joinder occurs when a plaintiff names a defendant

solely to defeat removal of an action from state to federal

court. See Brown v. Jevic, 575 F.3d 322, 326-27 (3d Cir. 2009);

In re Briscoe, 448 F.3d 201, 215-19 (3d Cir. 2006); Batoff v.

State Farm Ins. Co., 977 F.2d 848, 851-54 (3d Cir. 1992); Boyer

v. Snap-On Tools Corp., 913 F.2d 108, 110-13 (3d Cir. 1990);

Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29-34 (3d Cir.

1985). Allegations of fraudulent joinder only have merit if the

plaintiffs lack: (1) either a reasonable basis in fact or a

colorable ground to support the claims against the defendants at

issue; and (2) a real intention, in good faith, to prosecute the

action against the defendants at issue. Boyer, 913 F.2d at 111.

When a removing defendant raises the issue of fraudulent

joinder, the Court must resolve all contested factual issues and

any uncertainty as to the current state of controlling

substantive law in the plaintiffs’ favor. Id. Further, the

Court must find that the defendants at issue, i.e., the

defendants alleged to have been fraudulently joined, were

properly joined if there is “even a possibility” that a state

court would find that the Complaint states a claim against either

one of them. Id. For Stoop and Schwartz to be found to be

fraudulently joined, the claims asserted against them must be

“wholly insubstantial and frivolous.” See Batoff, 977 F.2d at

852.

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The standard for addressing dismissal due to fraudulent

joinder is not the same as the standard for addressing either

dismissal for failure to state a claim or summary judgment. See

Briscoe, 448 F.3d at 217-18 (stating district court cannot, in

fraudulent joinder inquiry, delve into claim’s merits); Batoff,

977 F.2d at 852 (stating district court erred in fraudulent

joinder analysis in finding complaint failed to state a valid

claim); Boyer, 913 F.2d at 111-12 (stating district court not

permitted to reach claim’s merits in deciding fraudulent joinder

issue). An inquiry under a motion to dismiss or a motion for

summary judgment “is more searching than that permissible when a

party makes a claim of fraudulent joinder”. Batoff, 977 F.2d at

852. As a fraudulent joinder analysis is not as “penetrating”,

the rejection of a fraudulent joinder argument does not guarantee

that the claim will withstand a motion to dismiss for failure to

state a claim on the merits or a motion for summary judgment. 

Id. at 852-53.

Upon review of the pleadings, the Court has determined that

the plaintiffs have not fraudulently joined Stoop and Schwartz,

as the claims against them are not wholly insubstantial and

frivolous. See id. at 852. The plaintiffs have alleged that:

(1) Romeo fell on the Premises and suffered injuries; (2) such

injuries were caused by the Condition on the Premises; (3) the

Condition was created by the negligence of Stoop and Schwartz;

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and (4) Stoop and Schwartz were, at the time of the accident,

acting as managers of the premises for JCPC. (Compl. at 2, 3, 4,

5, 6, 8, 9-10.) The plaintiffs’ allegations against Stoop and

Schwartz, therefore, are not wholly insubstantial and frivolous. 

See Printing Mart - Morristown v. Sharp Elecs. Corp., 116 N.J.

739, 762 (1989) (stating that employee who performs an allegedly

tortious act may still be individually liable, even if she was

acting on employer’s behalf and realized no personal benefit). 

Based on these allegations, a state court could find that the

Complaint states a claim against either Stoop or Schwartz, or

both.

The Court notes that the plaintiffs acted reasonably by

naming all of the parties who may be responsible for the injuries

at issue, as the failure to do so could give rise to a potential

statute of limitations issue. Cf. Brown, 575 F.3d at 327 (noting

that limitations defense may be considered in connection with

fraudulent joinder inquiry). The plaintiffs have also

demonstrated an intention to proceed against these individual

defendants, as both Stoop and Schwartz have been personally

served with process. (See Rmv. Not. at ¶ 2.) See also Abels,

770 F.2d at 32 (stating action naming “Doe defendants” survived

fraudulent joinder analysis, as plaintiff was endeavoring to

proceed against them and conduct discovery).

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It may be that the claims asserted against Stoop and

Schwartz would not survive a motion to dismiss on the merits. 

That concern, however, is not relevant here.

CONCLUSION

The Court will remand the action, as the Court has

determined that the plaintiffs did not fraudulently join Stoop

and Schwartz. See 28 U.S.C. §§ 1446(a), 1447(c). The Court will

issue an appropriate Order & Judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: November 10, 2011

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