Opinion
Civil Action 3:22-CV-00890
09-12-2022
FARIDA B. RAHMAN, Plaintiff, v. LISA S. GELB, J., Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, CHIEF UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Farida B. Rahman (“Rahman”) commenced this civil rights action in the Court of Common Pleas of Luzerne County, Pennsylvania, by filing a writ of summons against Defendant Lisa S. Gelb (“Gelb”) on May 11, 2022. (Doc. 1-1). On May 12, 2022, the Deputy Sheriff of Luzerne County served the writ of summons upon Gelb. (Doc. 1-2, at 1). On June 7, 2022, Plaintiff removed this action to the United States District Court for the Middle District of Pennsylvania, ostensibly pursuant to 28 U.S.C. § 1441, 28 U.S.C. § 1446, and 42 U.S.C. § 1983. (Doc. 1). On June 29, 2022, the Court ordered Rahman to furnish a copy of all processes, pleadings, and orders served upon Gelb to accompany the notice of removal. (Doc. 5). On July 13, 2022, Rahman filed a letter with the Court, stating: “I did not file no complaint in Luzerne County Court, because I was told I must have to file a Notice of Removal in your court in person, so I did that.” (Doc. 6). For the following reasons, it is recommended that the action be remanded to state court for lack of jurisdiction.
I. Discussion
“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010); see also Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003) (stating that a “court can raise sua sponte subject-matter jurisdiction concerns.”). “[T]he burden of establishing the [existence of subject-matter jurisdiction] rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
The statute governing the procedures for removing a civil case to federal court provides, in part, that “[t]he notice of removal of a civil action or proceeding 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)(1). It is well settled that the federal removal statutes confine the right of removal from a state court to federal district court to a defendant; there is simply no statutory authorization for a plaintiff, the party who chose to initiate litigation in the state forum, to remove his own action to federal court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104-05 (1941); Conner v. Salzinger, 457 F.2d 1241, 1242-43 (3d Cir. 1972) (holding that prisoner civil rights case originally filed in state court and removed by plaintiff himself to federal court should be dismissed “for want of jurisdiction”); Untracht v. Fikri, 454 F.Supp.2d 289, 328 (W.D. Pa. 2006); Moses v. Ski Shawnee, Inc., No. 00-CV-3447, 2000 WL 1053568, at *1 (E.D. Pa. July 31, 2000) (“A restriction by Congress on who may bring or remove an action at all would seem to implicate jurisdiction. The Supreme Court has referred to this restriction as jurisdictional.”). Therefore, the undersigned finds that the Court lacks subjectmatter jurisdiction over this matter. Accordingly, “the plain language of 28 U.S.C. § 1447(c) mandates that the matter be remanded to the state court from which it was removed.” Bromwell v. Mich. Mut. Ins. Co., 115 F.3d 208, 213 (3d Cir. 1997); see also 28 U.S.C. § 1747(c) (“If at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.”) (emphasis added).
In addition, the undersigned notes that removal in this matter is premature. The Third Circuit has made clear that a writ of summons is not an “ ‘initial pleading' that triggers the 30-day period for removal under the first paragraph of 28 U.S.C. § 1446(b).” Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 223 (3d Cir. 2005). This “ruling has been interpreted in this District to mean that removal is not proper until a complaint has been served on the defendants.” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 941 F.Supp.2d 568, 571 (E.D. Pa. 2013) (quotation marks omitted). As such, “the removal of a Writ of Summons alone is premature” because a Court “cannot find in the Writ of Summons a case or controversy sufficient to satisfy the requirements of Article III of the Constitution and statutes and rules establishing [a federal court's] jurisdiction.” Gervel v. L & J Talent, 805 F.Supp. 308, 309 n.4 (E.D. Pa. 1992).
Here, Rahman filed a writ of summons against Gelb. (Doc. 1-1). Moreover, Rahman has made clear that she has yet to file a complaint in either state or federal court. (Doc. 6). Without a complaint, the undersigned may not otherwise establish if this Court would have subject-matter jurisdiction. See Gervel, 805 F.Supp. at 309 n.4. Accordingly, it is recommended that this matter be remanded to state court for lack of subject-matter jurisdiction. See 28 U.S.C. § 1447(c); see also In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 941 F.Supp.2d at 571 (finding remand appropriate even when “it appears likely that once complaints have been filed the state-court actions will be removable”).
II. Recommendation
Based on the foregoing reasons, it is respectfully recommended that this action be REMANDED to the Court of Common Pleas for the Luzerne County pursuant to 28 U.S.C. § 1447(c) for lack of subject-matter jurisdiction. On remand, the state court shall address whether Rahman is entitled to proceed in forma pauperis. (Doc. 4).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated September 12, 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.