MAURICE OPARAJI VS. INNOVATE 1 SERVICES, INC., ETC. (L-6600-17, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
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 December 3, 2019
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
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 discovery-
related 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.
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