T & K Asphalt Services, Inc. v. DDRC Gateway, LLC
T & K Asphalt Services, Inc. v. DDRC Gateway, LLC
Opinion of the Court
MEMORANDUM
I. Introduction
This case arises from a relatively simple contract dispute between Plaintiff T & F Asphalt, Inc. and Defendant/Third-Party Plaintiff DDRC Gateway, LLC,
II. Background
A. Facts
Plaintiff is a Massachusetts corporation engaged in the asphalt paving and curbing business. Defendant is a Delaware limited liability company. Defendant is a corporate affiliate of DDR Corp. (“DDR”),
Third-Party Defendants CBS and CEG are New Jersey corporations with principal places of business in Seacaucus, New Jersey.
In 2007, DDR began negotiations with members of the Control Organization’s management, including Edward and Neal Turen, to execute an agreement whereby the Control Organization would “coordinate the provision of facility maintenance services at all of DDR’s properties in the United States.”
On or around December 23, 2011, CEG, CBS, and Oxford, at the direction of Edward and Neal Turen, took out an asset-based revolving credit facility.
Oxford, at the direction of Edward and Neal Turen, continued to issue invoices to DDR for services provided at the Everett Property, knowing that the monies would not be used to pay service providers.
B. Procedural History
On April 2, 2013, Plaintiff filed its Complaint in Middlesex Superior Court. On May 20, 2013, Defendant filed its Answer and Third-Party Complaint. On July 3, 2013, Third-Party Defendants removed the action to this court. On August 1, 2013, Defendant filed a Motion to Remand [# 5]. On August 2, 2013, Third-Party Defendant Neal Turen filed a Motion to Dismiss, Strike, or Transfer Third-Party Complaint [# 8]. On August 30, 2013, Third-Party Defendants filed an Assented-to Motion for Stay of Briefing Schedule [# 16] on the Motion to Dismiss, Strike, or Transfer, pending the outcome of the Motion to Remand, which this court ALLOWED. On October 2, 2013, this court held a hearing on Defendant’s Motion to Remand.
III. Discussion
The questions before this court are whether Third-Party Defendants are entitled to remove this action here in the first place and, if this court has subject matter jurisdiction, whether remand is nonetheless required by 28 U.S.C. § 1334(c)(2). Because this court concludes that it does not have subject matter jurisdiction, only the first question need be addressed. Third-Party Defendants originally sought removal of this action pursuant to 28 U.S.C. §§ 1441, 1332, 1334, and 1452.
Two other federal district courts, in cases involving the same parties and Service Agreement, have rejected Third-Party Defendants’ arguments that there is related-to jurisdiction over similar state-law claims simply because there may be some hypothetical effect on the Oxford bankruptcy in the future.
In sum, Third-Party Defendants have failed to meet their burden to show that this action is “related to” the Oxford bankruptcy. The connection of this case to the Oxford Bankruptcy is tenuous at best and the fact that Third-Party Defendants might seek indemnity or contribution in the future is far too insubstantial a basis upon which to find jurisdiction. Consequently, this court lacks subject matter jurisdiction over this action.
TV. Conclusion
For the foregoing reasons, Defendant’s Motion to Remand is ALLOWED.
AN ORDER HAS ISSUED.
For the reasons stated in the accompanying memorandum, this court orders that:
1. Defendant’s Motion to Remand [# 5] is ALLOWED.
2. This case is hereby REMANDED to the Middlesex Superior Court.
IT IS SO ORDERED.
. For simplicity’s sake, this court will simply refer to DDRC as "Defendant.”
. At the October 2, 2013 hearing on this motion, Plaintiff indicated that it supports Defendant’s Motion to Remand.
. Mem. Law Supp. Mot. Remand [# 6] Ex. 2 [hereinafter Third-Party Compl.], at 7.
. Third-Party Compl., 7.
. Mem. Law Supp. Mot. Remand [# 6] Ex. 1 [hereinafter Compl.], at 2.
. Compl., 8.
. Compl., 2.
. Compl., 2.
. Third-Party Compl., 9.
. Third-Party Compl., 9.
. Third-Party Compl., 10.
. Third-Party Compl., 7-8.
. Third-Party Compl., 9.
. Third-Party Compl., 9-10.
. Third-Party Compl., 10.
. Third-Party Compl., 10-11.
. Third-Party Compl., 11.
. Third-Party Compl., 11.
. Third-Party. Compl., 11.
. Third-Party Compl., 11-12.
. Third-Party Compl., 12.
. Third-Party Compl., 12.
. Third-Party Compl., 12.
. Third-Party Compl., 12.
. Third-Party Compl., 12-13.
. Third-Party Compl., 14.
. Third-Party Compl., 14.
. Third-Party Compl., 15.
. See Notice of Removal [# 1],
. Mem. Law Supp. Mot. Remand [# 6], 4.
. Opp'n Pl.’s Mot. Remand [# 18], 10 ("The Third-Party Defendants do not contest that 'related to’ subject matter jurisdiction is the only basis for jurisdiction.”).
. Kingsley v. Lania, 221 F.Supp.2d 93, 95 (D.Mass. 2002) (quoting Therrien v. Hamilton, 881 F.Supp. 76, 78 (D.Mass. 1995)).
. Therrien, 881 F.Supp. at 78.
. 28 U.S.C. § 1334(b).
. In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir. 1991), abrogated in part on other grounds, Conn. Nat'l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (quoting Pacor v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)).
. Id. (quoting In re Smith, 866 F.2d 576, 580 (3d Cir. 1989)).
. See Thomas Suddarth & Son Asphalt Paving Co. v. Developers Diversified Realty Corp., No. 13-00232-NBF (W.D.Pa. Aug. 30, 2013); Ace Asphalt of Ariz., Inc. v. DDR Corp., No. 13-1163-PHX-MHB (D.Ariz. Aug. 28, 2013).
. See Third-Party Compl.; Ace Asphalt, No. 13-1163-PHX-MHB, at *5 ("Defendants have failed to provide any support demonstrating any such right to indemnification or contribution exists for their own independent and alleged tortious acts.”).
Reference
- Full Case Name
- T & K ASPHALT SERVICES, INC. v. DDRC GATEWAY, LLC v. Control Building Services, Third-Party
- Status
- Published