Opinion
2:18-CV-01653-CRE
04-12-2019
VALERIE FLEMING, AND; PATRICK FLEMING, HER HUSBAND; Plaintiffs, v. SAMUEL G. SANDERSIV, AND; NATIONWIDE MUTUAL INSURANCE COMPANY, Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
Presently before the court is Plaintiffs Valerie Fleming and Patrick Fleming's motion to remand to state court (ECF No. 9). The motion is fully briefed and ripe for disposition. (ECF Nos. 9, 18, 19, 20). For the reasons that follow, it is respectfully recommended that the motion be granted and this case be remanded to the Allegheny County Court of Common Pleas, Pennsylvania.
II. REPORT
a. Background
Plaintiffs initiated the present civil action in Allegheny County Court of Common Pleas, Pennsylvania against Defendants Sanders and Nationwide on March 21, 2018 in connection with injuries sustained from a motor vehicle accident. The complaint indicated that Plaintiffs are Pennsylvania citizens, that Defendant Sanders is a New Jersey citizen and Defendant Nationwide is incorporated in Ohio and thus a citizen of Ohio. Compl. (ECF No. 1-4) at 4. In the complaint, Plaintiffs allege damages "in excess of $35,000. Compl. (ECF No. 1-4) at 10. Defendant Sanders filed preliminary objections to Plaintiffs' complaint on June 22, 2018 which were overruled after oral argument. (ECF No. 9-3). Defendant Sanders filed an Answer and Defenses on September 7, 2018. (ECF No. 1 at ¶ 7). Thereafter, Defendant Sanders served 25 subpoenas upon Plaintiffs. On or about October 29, 2018, Defendant Sanders served upon Plaintiffs a request for admission, requesting Plaintiff to admit or deny that Plaintiffs' damages were valued in excess of $75,000, exclusive of interests and costs. (ECF No. 1 at ¶ 9). It is undisputed that Plaintiffs have not responded to Defendant Sanders's request for admission. Defendant Sanders noticed removal of this action on December 13, 2018. Plaintiffs presently seek to remand this case and argue that, inter alia, Defendant Sander's removal is untimely.
Defendant Nationwide takes no position on the remand issue and does not object to the state or federal forum for litigation of the claims presented by Plaintiffs. See Def. Nationwide Resp. (ECF No. 18) at 2-3.
Federal district courts have original jurisdiction of all civil actions where the parties are citizens of different states and the matter in controversy exceeds the sum or value of $75,000. 28 U.S.C. § 1332(a)(1). If a case is filed in state court and is one which federal court has original jurisdiction, a defendant may remove the action to federal court under 28 U.S.C. § 1446(b). The removal statute provides that a notice of removal of a civil action or proceeding from state court to federal court must be "filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading[.]" 28 U.S.C. § 1446(b)(1). If it is not apparent by the initial pleading that the case is removable, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable[,]" provided that the case is removed not more than one year from the commencement of the action. 28 U.S.C. §§ 1446(b)(3); (c). Once a defendant has removed an action to federal court, a plaintiff may challenge the removal under 28 U.S.C. § 1447(c) by seeking remand if the federal court lacks jurisdiction or if there has been a defect in the removal procedure. PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). Removal statutes are strictly construed against removal and all doubts should be resolved in favor of remand. Boyer v. Snap-On Tools, Corp., 913 F.2d 108, 111 (3d Cir. 1990). The party seeking removal bears the burden of proving that the case is property removed. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).
Here, Defendant Sanders argues that removal was not apparent from the face of the initial complaint, because it was unclear whether Plaintiffs met the jurisdiction threshold amount of $75,000. Defendant Sanders argues that it only became clear that the case was removable after Plaintiffs failed to respond to his request for admissions seeking an admission that Plaintiffs' damages exceeded $75,000, and Plaintiffs' lack of response was deemed an admission that the damages exceeded $75,000 and therefore Defendant Sanders was able to remove this case thirty days after the expiration of the response date to his request for admissions. In other words, the request for admission, which is deemed admitted to due to Plaintiffs' failure to respond, became the "other paper" from which it was first ascertained that the case was removable.
The general federal rule is to decide the amount in controversy from the face of the state court complaint. Angus v. Shiley Inc., 989 F.2d 142, 145 (3d Cir. 1993) (citing Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 353 (1961)). This amount "is not measured by the low end of an open-ended claim, but rather by a reasonable reading of the value of the rights being litigated." Angus, 989 F.2d at 146. If, like here, the state court complaint "does not limit its request for damages to a precise monetary amount," the district court must make "an independent appraisal of the value of the claim" based on the allegations in the state court complaint. Id. at 146. See also Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 398 (3d Cir. 2004).
Here, while Plaintiffs now argue that their claims are less than $75,000, they did not limit the amount of damages in their state court complaint to less than $75,000. Case law dictates that "a plaintiff following removal cannot destroy federal jurisdiction simply by amending a complaint that initially satisfied the monetary floor." Angus, 989 F.2d at 145. Therefore, that Plaintiffs now argue their claims do not exceed $75,000 has "no legal significance" and the court must only consider "the amount in controversy as alleged in [Plaintiffs'] complaint." Id.
Plaintiffs alleged in their state court complaint that their damages exceeded $35,000 but do not specifically limit their damages to under $75,000. Plaintiffs seek underinsured motorist coverage under their Nationwide Mutual Insurance Company for first party benefits and damages from injuries sustained from Defendant Sanders's negligence in operating his vehicle and causing a motor vehicle collision. While the applicable insurance policy is not provided by either party, Plaintiffs allege that Plaintiff Valerie Fleming sustained the following injuries:
(1) injuries to her head with concussion and post-concussion syndrome and a precipitation, initiation, exacerbation or aggravation of a pre-existing condition of the neck and the muscles, ligaments, tissues, tendons and nerves in, about and extending from the aforementioned parts of her body were strain[ed], torn and dislocated, all of which are or may be serious and permanent injuries;
(2) physical and mental anguish and pain, suffering and inconvenience;
(3) shock and injury to the nerves and nervous system and emotional distress;
(4) deprived the ordinary pleasures of life;
(5) abstain from carrying on her ordinary household duties;Compl. (ECF No. 1-4) at ¶¶ 9-19. Likewise, Plaintiff Patrick Fleming alleges that he sustained the following damages:
(6) diminished earning power in excess of sums recoverable under the limitations of 75 Pa. C.S.A. § 1701 et seq.;
(7) monetary damages for medical aid and medicines in excess of the sums recoverable under the limitations of the Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701 et seq.; and
(8) monetary damages for the damage to and depreciation of the vehicle.
(1) monetary damages for medical expenses in excess of the sums recoverable under the Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701 et seq.;Compl. (ECF No. 1-4) at ¶¶ 21-23.
(2) monetary damages for hiring help to perform the household duties previously performed by Valerie Fleming; and
(3) monetary damages for loss of consortium.
Based on Plaintiffs' injuries, Defendant Sanders has not proven that the jurisdictional value of this case was unknown at the time the case was initiated in state court. It is reasonable to read Plaintiffs' complaint alleging a negligence claim against Defendant Sanders for past and future medical expenses, economic damages, loss of future earning power, pain and suffering, costs associated with Valerie Fleming's inability to perform household duties, damages associated with having the vehicle repaired, and Patrick Fleming's loss of consortium are valued in excess of $75,000. As such, Defendant Sanders was on notice that Plaintiffs' claims met the jurisdictional threshold to invoke federal jurisdiction at the time the state court suit was filed, and pursuant to 28 U.S.C. § 1446(b)(1), the notice of removal should have been filed no later than April 20, 2018. Because Defendant Sanders did not notice removal until December 13, 2018, the removal is defective and this case should be remanded to state court. See also Rue21, Inc. v. Ms. Bubbles, Inc., 2:16-CV-01189, 2016 WL 5720844, at *2 (W.D. Pa. Oct. 3, 2016).
Defendant Sanders also argues that this court somehow has supplemental jurisdiction over the claims here because a passenger of Plaintiff Valerie Fleming's vehicle also filed suit in connection with this accident, which was removed to this court by the same counsel that represents Defendant Sanders here. Pierchalski v. Sanders, 2:18-cv-01540-CRE (W.D.Pa. November 15, 2018). 28 U.S.C. § 1367(a) cannot be used as a tool to confer supplemental jurisdiction from two separately filed cases involving different parties. While section 1367(a) gives federal courts supplemental jurisdiction over claims that "are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy[,]" including those claims that "involve the joinder or intervention of additional parties[,]" there is no evidence of joinder, intervention or consolidation of the two cases. The Pierchalski case is simply marked as "related" to the instant matter, which is an administrative tool this district uses to efficiently assign cases to judges. See LCvR 40. While both cases may stem from the same motor vehicle accident, one separately filed case cannot be used to confer jurisdiction upon another. Additionally, the undersigned has issued a recommendation that the Pierchalski case be remanded to state court for defective removal, which, if adopted, could not be the basis to confer supplemental jurisdiction over the instant action as Defendant Sanders argues. --------
Lastly, while an order remanding the case "may require the payment of just costs and any actual expenses, including attorney's fees, incurred as a result of the removal[,]" because Plaintiffs do not specifically seek these costs and fees, it is not recommended that any costs or fees be imposed against Defendants. 28 U.S.C. § 1447(c).
c. Conclusion
Based on the foregoing, it is respectfully recommended that Plaintiffs' motion to remand be granted and this case be remanded to the Court of Common Pleas of Allegheny County, Pennsylvania.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until April 26, 2019 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due May 10, 2019. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: April 12, 2019.
Respectfully submitted,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge cc: Honorable David S. Cercone
Senior United States District Judge
via electronic filing
Counsel of record via CM/ECF electronic filing