Defendants Unsuccessful in Removal Effort Based on Diversity

In this New Jersey case, two defendants moved for summary judgment, motions for which were not opposed by the plaintiff. Following the dismissal of the two defendants, those remaining removed the case under 28 U.S.C. 1441(a) and 1446(b)(3) based on diversity of citizenship.  Under these sections, if a plaintiff voluntarily dismisses non-diverse parties — creating diversity of citizenship for the remaining parties — the case can be removed to federal court. In response to the plaintiff’s motion to remand, the remaining defendants argued that the decision not to oppose the two defendants’ summary judgment motions was the equivalent of a voluntary dismissal under section 1441(a). The district court disagreed and remanded the case, stating: “Plaintiff’s failure to oppose Ingersoll-Rand’s and Abex’s summary judgment motions was not a voluntary dismissal of his claims against them. Mere failure to oppose a dispositive motion does not demonstrate affirmative consent to dismissal or a ‘desire not to pursue the case against the non-diverse party.’ . . . Ingersoll-Rand and Abex were dismissed from this action not by Plaintiff’s failure to oppose their summary Judgment motions, but by court order after the New Jersey Superior Court found the motions meritorious on their face. Because these non-diverse defendants’ dismissal was not effected by Plaintiff’s voluntary act, removal to federal court on diversity grounds was improper under the voluntary-involuntary rule.”

Read the full decision here.