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Boardakan Restaurant, LLC, Trading As Boardakan v. Atlantic Pier Associates

August 27, 2012

BOARDAKAN RESTAURANT, LLC, TRADING AS BOARDAKAN RESTAURANT PARTNERS, L.P., AND OCEANENTAL RESTAURANT, LLC, TRADING AS OCEANENTAL PARTNERS, L.P.,
PLAINTIFFS,
v.
ATLANTIC PIER ASSOCIATES, LLC, GORDON GROUP HOLDINGS, LLC, TAUBMAN CENTERS, INC., TAUBMAN COMPANY, LLC, TRG THE PIER, LLC, AND: TAUBMAN REALTY GROUP LIMITED PARTNERSHIP, DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I. INTRODUCTION

This case involves a dispute over a lease agreement. It has a tangled history in state and federal court involving two lawsuits filed by the parties against each other. The first lawsuit was filed over four years ago in June 2008. The second was filed in September 2011. Although the history of these cases are relevant to the remand issue presently before the Court, for purposes of this Introduction the pertinent action is the first one. In that case, on September 9, 2011, Defendants Taubman Company, LLC, Taubman Realty Group Limited Partnership, Taubman Centers Inc., and TRG The Pier, LLC (collectively "Defendants") filed a Notice of Removal to this Court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. No. 1.) As noted, this case was originally filed in state court in June 2008 by Plaintiffs Boardakan Restaurant, LLC and Oceanental Restaurant, LLC (collectively "Plaintiffs"). It was removed to this Court and then remanded back to state court by the late Honorable Louis H. Pollak, and subsequently removed again to this Court by Defendants.*fn1 (Doc. No. 11.)

On September 19, 2011, Plaintiffs responded to the removal by filing an Amended Complaint (Doc. No. 13), and on September 23, 2011, by filing a Motion to Remand the case back to state court (Doc. No. 16).*fn2 On October 12, 2011, pursuant to a stipulation of the parties, the Court ordered that briefing on two other motions filed by Defendants, a Motion to Dismiss the Amended Complaint and a Motion to Reconsider a State Court Ruling, be stayed pending resolution of the Motion to Remand. (Doc. No. 29.) The Motion to Remand is now ripe for disposition. The critical issue set forth in the parties' briefs is whether and how to apply the requisite one-year period for removal under 28 U.S.C. § 1446. For reasons that follow, the Court will deny the Motion to Remand.

II. BACKGROUND

A. Origin of the Common Pleas Action

On June 25, 2008, Plaintiffs filed an action against Defendants Atlantic Pier Associates, LLC, Gordon Group Holdings, LLC, Taubman Centers, Inc., and several John Does in the Philadelphia Court of Common Pleas by filing a Praecipe to Issue a Writ of Summons. (Doc. No. 16 at 26-27.) On July 23, 2008, Defendants removed the suit to this Court. (See Boardakan Rest. LLC v. Atl. Pier Assocs., LLC (Boardakan I), No. 08-3448 (E.D. Pa. July 23, 2008) (Doc. No. 1.)) Plaintiffs subsequently moved to remand the case back to state court on the ground that a writ of summons is not a removable pleading for purposes of 28 U.S.C. § 1446. (Boardakan I, No. 08-3448, Doc. No. 2.) On September 25, 2008, the Court (Pollak, J.) granted the motion and remanded the case to the Court of Common Pleas. (Boardakan I, No. 08-3448, Doc. No. 15.)

Despite continuing to litigate over the proper forum, the parties agreed to commence discovery while the case was pending in the Court of Common Pleas, even though no complaint had been filed. (Doc. No. 16-1 at ECF p. 7-9.)

B. Discontinuance of State Litigation in Favor of Federal Litigation

In September 2008, Plaintiffs in the Common Pleas action-Boardakan Restaurant Partners and Oceanental Partners-were sued in federal court by their landlord, Atlantic Pier Associates, for unpaid rent at the restaurants' premises in Atlantic City, New Jersey. (See Atl. Pier Assocs., LLC v. Boardakan Rest. Partners, L.P. (Boardakan II), No. 08-4564 (E.D. Pa. Sept. 18, 2008), Doc. No. 1.) This case involves a dispute over a lease agreement and is also referred to as Boardakan II. Plaintiffs sought to stay Boardakan II because it was duplicative of the then pending Common Pleas action. (Boardakan II, No. 08-4564, Doc. No. 4.) On January 16, 2009, the Honorable Eduardo C. Robreno of this Court stayed the landlord's action for unpaid rent for 90 days "to allow the state court case to run its initial course." (Boardakan II, No. 08-4564, Doc. No. 12.)

On April 16, 2009, Judge Robreno held a status conference in Boardakan II. At the conference, Plaintiffs' counsel advised the Court that he planned to dismiss the first case pending in the Court of Common Pleas. (See Boardakan II, No. 08-4564, Doc. No. 35 at 6:22, 7:22-8:10.) According to counsel, Plaintiffs determined after obtaining pre-complaint discovery in the state action that the parties against whom they wished to proceed were completely diverse and therefore Plaintiffs could proceed in federal court. (See Boardakan II, No. 08-4564, Doc. No. 35 at 7:02-15.) Counsel for Defendants stated that "it would be appropriate to consolidate the cases" after Plaintiffs filed the new complaint in federal court. (See Boardakan II, No. 08-4564, Doc. No. 35 at 3:25-4:01.)

Later that same day, April 16, 2009, Plaintiffs filed a complaint in the Eastern District of Pennsylvania alleging fraud by their landlord and other entities and individuals involved in the development and leasing of the Atlantic City premises.*fn3 (See Buddakan Rest. at the Pier in Atl. City, NJ v. Atl. Pier Assocs., LLC (Boardakan III), No. 09-1619 (E.D. Pa. Apr. 16, 3009), Doc. No. 1.) The parties refer to this case as the "fraud" case, and to the second one, Boardakan II, as the non-payment of rent case.

On April 20, 2009, Plaintiffs filed a praecipe to discontinue the pending Common Pleas Court action without prejudice pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure. On May 4, 2009, the Common Pleas Court ...


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