Summary
In Pierchalski v. Sanders, 2019 WL 1904297, at *1 (W.D. Pa. Apr. 12, 2019), for example, the court was faced with similar circumstances as here where the defendant claimed that a writ of summons, followed by a demand letter outlining the factual allegations and setting forth the alleged amount in controversy, would commence the thirty-day removal period under 1446(b) and allow for removal.
Summary of this case from Signature Bldg. Sys. of Pa., LLC v. Motorist Mut. Ins.Opinion
2:18-CV-01540-CRE
04-12-2019
GEMMA L. PIERCHALSKI, JOSEPH B. ABRAHAM, HER HUSBAND; Plaintiffs, v. SAMUEL SANDERS, D. PARTHENIA COGDELL, Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
Presently before the court is Plaintiffs Gemma L. Pierchalski and Joseph B. Abraham's motion to remand to state court (ECF No. 4). The motion is fully briefed and ripe for disposition. (ECF Nos. 4, 8, 9, 17). 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
This civil action was initiated by writ of summons on or about March 19, 2018 in the Allegheny County Court of Common Pleas, Pennsylvania. On November 5, 2018, counsel for Plaintiffs sent a demand letter to Defendants' counsel outlining the factual allegations of their claims and demanding $300,000. On November 9, 2018, Defendants served Plaintiffs with a rule to file complaint, making the response to that motion due December 13, 2018. Prior to a response or complaint being filed in state court, Defendants noticed removal of this action on November 15, 2018. As of this report, it is undisputed that no complaint has been filed in state court. Plaintiffs now move to remand this case to state court pursuant to 28 U.S.C. § 1447. For the reasons that follow, it is respectfully recommended that Plaintiffs' motion be granted.
b. Discussion
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). 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). In Sikirica v. Nationwide Ins. Co., 416 F.3d 214 (3d Cir. 2005), the Court of Appeals for the Third Circuit held that "a writ of summons alone can no longer be the 'initial pleading' that triggers the 30-day period for removal" under Section 1446(b). Therefore, removal is not proper until a complaint has been filed in state court. Here, it is undisputed that no complaint has yet been filed in state court, therefore the court must remand this case to state court. While the court's analysis need go no further, Defendants' arguments against remand will be addressed.
See Binder v. Weststar Mortg., Inc., No. 14-7073, 2015 WL 790203, at *2 (E.D. Pa. Feb. 25, 2015) (a writ of summons and a court's administrative conference memorandum do not constitute an "initial pleading" under Section 1446); Wisinski v. American Commerce Group, Inc., No. 07-346, 2008 WL 339461, *1 (W.D.Pa. Feb. 5, 2008) (a writ of summons, motion to compel arbitration, and motion for reconsideration, without a complaint, are not an "initial pleading" under Section 1446); Lane v. CBS Broadcasting Inc., No. 08-777, 2008 WL 910000, at *5, 7 (E.D.Pa. April 2, 2008) (a writ of summons and notice of discovery are not an "initial pleading" under Section 1446); Quigley Corp. v. Wachovia Services, Inc., No. 07-1343, 2007 WL 2031780, at *3 (E.D.Pa. July 6, 2007) (an unfiled draft of a complaint is not an "initial pleading" under Section 1446); Campbell v. Oxford Elecs., Inc., CIV A 07-0541, 2007 WL 2011484, at *2 (E.D. Pa. July 5, 2007) (applying Sikirica and holding a writ of summons alone is not an "initial pleading" under Section 1446); Gabriel v. Giant Eagle, Inc., CIV.A. 14-0980, 2014 WL 7071034, at *8 (W.D. Pa. Dec. 12, 2014) (explaining case law after Sikirica).
Defendants argue that Plaintiffs' demand letter setting forth the factual allegations of their claims and an itemization of damages exceeding the $75,000 threshold triggered the removal process. Defendants cite to no legal authority that a writ of summons in conjunction with a demand letter is an "initial pleading" under Section 1446(b) post-Sikirica. A finding that a writ of summons and a demand letter constitutes an "initial pleading" under Section 1446(b) would defeat the obvious rationale underlying Sikirica's holding and Defendants' argument is rejected.
Defendants also argue that diversity jurisdiction exists in this case and therefore removal is appropriate. This argument puts the proverbial cart before the horse: that Plaintiffs seek an amount exceeding the jurisdictional threshold or whether diversity citizenship exists is not yet ripe for this court to consider, as removal was procedurally inappropriate.
Defendants further argue that remanding the case would cause undue delay, because a remand would force Plaintiff to file a complaint in state court, and the Defendants would again seek removal of the action to federal court. This argument is unequivocally rejected, as Defendants - not the Plaintiffs or the court in its adherence to the Federal Rules of Civil Procedure - are the sole source of the delay. Instead of waiting for the complaint to be filed, or waiting for Plaintiffs to respond to the rule to file a complaint in state court around December 13, 2018 by virtue of the rule to file a complaint, Defendants, against the weight of legal authority from this circuit, decided to seek removal on the basis of the writ of summons and demand letter alone and issued the notice of removal on November 15, 2018. Arguably, Defendants need have only waited one month for Plaintiffs to file a complaint in state court to properly remove it. Defendants cannot now in good faith argue undue delay from their own failure to follow the Federal Rules of Civil Procedure and applicable legal authority.
Defendants also argue that the demand letter was an "other paper" under Section 1446(b) which triggered the removal process. Defendants' argument fails, as Section 1446(b) does not contemplate that an "other paper" exchanged prior to the complaint being filed or served triggers the 30-day removal period. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885-86 (9th Cir. 2010) (a finding that a document received before receipt of the initial pleading would constitute an "other paper" and trigger the removal process is "nonsensical."); Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992) ("By its plain terms the statute requires that if an 'other paper' is to trigger the thirty-day time period of the [removal statute], the defendant must receive the 'other paper' only after [the defendant] receives the initial pleading."); Bracken v. Dolgencorp, LLC, CV 18-4703, 2018 WL 6249715, at *5 n. 45 (E.D. Pa. Nov. 29, 2018) ("to constitute an 'other paper' which would trigger the thirty-day removal period, . . . the defendant must receive the paper after the plaintiff files the complaint.") (emphasis in original); Rosenfield v. Forest City Enterprises, L.P., 300 F. Supp. 3d 674, 679 (E.D. Pa. 2018) (correspondence exchanged between counsel prior to the filing and service of a complaint was not an "other paper" and did not trigger the thirty-day removal period).
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