Opinion
Civil Action 3:21-CV-01624
01-18-2022
CAROL KELSEY, Plaintiff, v. GEMMA DAVIS, et al., Defendants.
MANNION, D.J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Chief United States Magistrate Judge.
Before the Court is a motion to remand to the Philadelphia County Court of Common Pleas filed by Plaintiff Carol Kelsey (“Kelsey”) on October 7, 2021. (Doc. 5). Kelsey initiated this action in the Court of Common Pleas of Philadelphia County on August 10, 2021, against Gemma Davis, Anthony Cohen, Alto's Express, Inc., Angelo Keyes, and Metallix Refining, Inc. (collectively, the “Defendants”). (Doc. 1-1, at ¶ 2-7). Kelsey requests that the current matter be remanded back to state court because Defendants' removal violates the “forum defendant rule” and “rule of unanimity.” (Doc. 6, at 4). For the following reasons, it is respectfully recommended that the Court grant Kelsey's motion to remand. (Doc. 5).
I. Background and Procedural History
Kelsey initiated this case with the filing of a complaint in the Court of Common Pleas for Philadelphia County on August 10, 2021. (Doc. 1-1, at 2). Kelsey completed service upon Defendant Davis on August 24, 2021. (Doc. 5-1, at 20; Doc. 6, at 3). On September 1, 2021, Kelsey completed service upon Defendants Cohen and Alto's Express, Inc. (Doc. 5-1, at 25, 30; Doc. 6, at 3). On September 10, 2021, Defendant Davis filed preliminary objections to the complaint. (Doc. 5-1, at 35; Doc. 6, at 3). On September 20, 2021, Defendants Keyes and Metallix Refining, Inc. (the “Removing Defendants”), filed a notice of removal to remove this action to the United States District Court for the Middle District of Pennsylvania pursuant to diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1, at 3-4). No. other Defendants have filed a notice of removal, joined in the notice of removal, or otherwise stated to the Court their intent to join in the notice of removal.
On October 7, 2021, Kelsey filed the motion to remand to state court. (Doc. 5). On November 12, 2021, Kelsey filed her brief in support of the motion, arguing that Removing Defendants' removal to federal court does not sufficiently establish diversity of citizenship between the parties. (Doc. 6, at 4). On December 1, 2021, Kelsey filed a certificate of concurrence/non-concurrence, stating that counsel for Kelsey sought concurrence in the motion to remand from counsel for Defendants; However, Defendants have not responded to counsel for Kelsey. (Doc. 7, at 1). More than thirty days have passed since Kelsey filed the brief in support of the motion to remand. As of the date of this Order, Defendants have not filed a brief in opposition as required by Local Rule 7.6, so Defendants are deemed to not oppose Kelsey's motion to remand. The motion is ripe for disposition. (Doc. 5; Doc. 5).
United States District Court for the Middle District of Pennsylvania Local Rule 7.6 provides:
Any party opposing any motion, . . . shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with such motion is deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition.
II. Removal Standard
The removal of cases from state courts to federal courts is governed by 28 U.S.C. §§ 1441-1455. Under § 1441(a), a defendant may remove “any civil action brought in a state court of which the district courts of the United States have original jurisdiction . . . to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). In the case at bar, Defendants filed a notice of removal pursuant to 28 U.S.C. § 1441(b), invoking diversity of citizenship under 28 U.S.C. § 1332(a). (Doc. 1, at 2). This provision states that a district court “shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, ” between “citizens of different states.” 28 U.S.C. § 1332(a)(1).
Section 1446 of the removal statute further sets forth the procedures for removal, explaining that a defendant seeking removal of an action must file a petition for removal with the district court that contains “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants” in the state court action. 28 U.S.C. § 1446(a). In addition, a notice of removal “shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.].” 28 U.S.C. §§ 1446(b). After a case has been removed, a plaintiff may move to remand the action back to state court under 28 U.S.C. § 1447(c) for “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure.” Ramos v. Quien, 631 F.Supp.2d 601, 607 (E.D. Pa. 2008) (quoting PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.1993)). However, a “motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal[.].” 28 U.S.C. § 1447(c).
Because federal courts are courts of limited jurisdiction, both the Supreme Court of the United States and the Third Circuit Court of Appeals have recognized that removal statutes are to be strictly construed against removal with all doubts resolved in favor of remand. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). “If the citizenship of the parties is not disclosed in the complaint, the case is not removable unless the defendant can affirmatively plead and later prove the existence of diversity.” Balilaj v. Marshalls, Inc., No. 03-5908, 2004 WL 437448, at *2-4 (E.D. Pa. Mar. 2, 2004) (citing 16 James Wm. Moore et al., Moore's Federal Practice ¶ 107.14 (3d ed. 2002)); see also Rosenfield v. Forest City Enter., L.P., 300 F.Supp.3d 674, 674-75 (E.D. Pa. 2018) (“[W]here, as here, it is not apparent from the face of the complaint that a case is removable, a defendant may remove within thirty days of receipt of an amended complaint, motion, order, or ‘other paper' from which it may first be ascertained that the case is removable.”) (citing 28 U.S.C. § 1446(b)3)). The Third Circuit has also repeatedly held that “the party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); see also Samuel-Bassett, 357 F.3d at 396. Moreover, “a defendant utilizing diversity for removal must show that diversity existed not only upon removal but also at the time of commencement of the action in state court.” Fiorentino v. Huntingside Ass'ns, 679 F.Supp. 3, 5 (E.D. Pa. 1987) (citing Kerstetter v. Ohio Casualty Ins. Co., 496 F.Supp. 1305, 1307 (E.D. Pa. 1980)); Ellerbee v. Union Zinc, Inc., 881 F.Supp. 162, 164 (E.D. Pa. 1995).
III. Discussion
In challenging the removal of this action, Kelsey claims that diversity of citizenship between the parties does not exist. (Doc. 6, at 5). Specifically, Kelsey argues that the matter must be remanded because removal violates the “forum defendant” rule as two Defendants are resident Defendants or citizens of the Commonwealth of Pennsylvania. (Doc. 6, at 5). As discussed supra, “[i]f the grounds [for removal] are premised on diversity, the notice [of removal] must allege diversity at the time of the commencement of the action and at the time of the notice filing.” Moser v. Bostitch Div. of Textron, Inc., 609 F.Supp. 917, 918-19 (W.D. Pa. 1985).
Pursuant to 28 U.S.C. § 1332, “district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a)(1). Thus, “[f]or a district court to have diversity jurisdiction, ‘no plaintiff can be a citizen of the same state as any of the defendants.'” Yoder v. Morrow, 671 Fed.Appx. 27, 28 (3d Cir. 2016) (quoting Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003)). Moreover, “[d]iversity of citizenship must have existed at the time the complaint was filed and at the time of removal and the burden is on the removing party to establish federal jurisdiction.” Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 346 (3d Cir. 2013) (internal citations omitted). “When a defendant removes a case based on diversity of citizenship, however, courts are permitted to look to materials outside the pleadings, including documents appended to a notice of removal or a motion to remand that convey information essential to the court's jurisdictional analysis.” Gosch v. Int'l Chapter of Horseshoers and Equine Trades, Local 947, 200 F.Supp.3d 484, 491 (M.D. Pa. 2016) (citations omitted).
For purposes of determining citizenship, “[a] natural person is deemed to be a citizen of the place where he is domiciled.” Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015). As for corporations, “[t]he federal diversity jurisdiction statute provides that ‘a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.'” Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010) (quoting 28 U.S.C. § 1332(c)(1)). The United States Supreme Court has established that a corporation's principal place of business is “the place where the corporation's high level officers direct, control, and coordinate the corporation's activities.” Hertz Corp., 559 U.S. at 80. In other words, a corporation's principal place of business is its “nerve center.” Hertz Corp., 559 U.S. at 80-81, 92-93. “And in practice it should normally be the place where the corporation maintains its headquarters-provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center,' and not simply an office where the corporation holds its board hearings....” Hertz Corp., 559 U.S. at 93.
Importantly, the parties do not dispute that the amount in controversy in this action exceeds $75,000. (Doc. 1, at 4). Therefore, to remove this action there must be diversity of citizenship among the parties. See 28 U.S.C. § 1332. Here, Removing Defendants' notice of removal avers as follows:
5. This is a civil suit and involves controversy between citizens of different states. Plaintiff, upon information and belief, was at the time of the commencement of the above action a citizen of the State of New York.
6. Defendant, Angelo Keyes, was at the time of the commencement of the above action a citizen of the State of North Carolina.
7. Defendant, Metallix Refining, Inc., is a New Jersey corporation with its principal place of business in Shrewsbury, New Jersey.
8. Upon information and belief, and per the Complaint, Co-Defendant Gemma Davis was at the time of the commencement of the above action a citizen of the State of Pennsylvania.
9. Upon information and belief, and per the Complaint, Co-Defendant Anthony Cohen was at the time of the commencement of the above action a citizen of the State of New Jersey.
10. Upon information and belief, and per the Complaint, Co-Defendant Alto's Express, Inc. is a New Jersey corporation with its principal place of business in Cinnaminson, New Jersey.(Doc. 1, at 3-4). Based on these allegations, Kelsey asserts that the notice of removal does not properly allege diversity existed between the parties at the time she filed this action in state court or upon Removing Defendants' removal. (Doc. 6, at 7).
Removing Defendants concede that there is no dispute that Defendant Davis is a resident of Pennsylvania. (Doc. 1, at 4; Doc. 1-1, ¶ 2). In his preliminary objections to the complaint, Defendant Davis stated that he is a resident of Scranton, Pennsylvania. (Doc. 5-1, at 35). According to Removing Defendants, the notice of removal alleges that Defendant Alto's Express, Inc., is a New Jersey corporation with its principal place of business in Cinnaminson, New Jersey. (Doc. 1, at 4). However, upon review, it is evident that Defendant Alto's Express, Inc., is an active “domestic” corporation registered in the Commonwealth of Pennsylvania, with a registered address at 3010 N. 21st Street, Philadelphia, Pennsylvania 19132. (Doc. 5-1, at 69).
For these reasons, the undersigned finds that there is no diversity of citizenship between the parties and that the notice of removal is defective. (Doc. 1).
Although Kelsey raises another argument in support of remand, the undersigned finds the grounds addressed supra to be dispositive. As such, the undersigned declines to consider any additional bases for remanding this action.
IV. Recommendation
Based on the foregoing, it is respectfully recommended that Kelsey's motion to remand (Doc. 5) be GRANTED, the case be remanded to the Court of Common Pleas for Philadelphia County, and that the Clerk of Court be directed to close this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 18, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.