Opinion
CIVIL 4:23-CV-1706
04-11-2024
GEORGE HENRY WHALEY, JR., Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, Defendant.
Mariani Judge
REPORT AND RECOMMENDATION
Daryl F. Bloom United States Magistrate Judge
I. Introduction
The plaintiff, George Whaley, Jr., filed a “Notice of Removal” in the instant action on October 13, 2023. (Doc. 1). While Whaley's filings are, at best, enigmatic, it appears that Whaley has attempted to remove his state criminal case in Lycoming County, Pennsylvania, into federal court via the Notice of Removal. He has also filed a motion to dismiss his criminal case. (Doc. 7). Moreover, it appears that the named defendant in this action, the Commonwealth of Pennsylvania, has never been served.
Accordingly, for the following reasons, we recommend that this matter be dismissed.
II. Discussion
The plaintiff instituted this federal action by filing a Notice of Removal. (Doc. 1). “[R]emoval statutes ‘are to be 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) (citations omitted). Thus, the party removing the case to federal court “bear[s] the burden of establishing removal jurisdiction” and complying with all procedural requirements. Shadie v. Aventis Pasteur, Inc., 254 F.Supp.2d 509, 514 (M.D. Pa. 2003) (citing Boyer, 913 F.2d at 111).
One such requirement is that the court must have jurisdiction over the matter. Accordingly, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Federal courts have jurisdiction over the removal of state criminal matters in only very specific, limited circumstances. See e.g., 28 U.S.C. § 1442 (where a federal officer or agency is the criminal defendant); § 1442a (where the defendant is a member of the United States armed forces); § 1443 (a criminal action involving civil rights that cannot be enforced in state court). In fact, this court has dismissed a similar matter brought by Whaley, finding that the court lacked subject matter jurisdiction over the removal of Whaley's state criminal case. See Whaley v. Commonwealth of Pennsylvania, et al., No. 4:21-CV-1760, 2021 WL 5179204 (M.D. Pa. Nov. 8, 2021) (Carlson, M.J.), report and recommendation adopted, 2022 WL 2421106 (M.D. Pa. Mar. 14, 2022).
Here, a review of Whaley's filings does not establish any of the narrow circumstances described above conferring subject matter jurisdiction on this court over Whaley's state criminal matter. Accordingly, we recommend that this case be dismissed.
We further note that, to the extent Whaley's pleadings can be construed as an attempt to bring a civil rights action against the Commonwealth, he has failed to properly serve this defendant. Rule 4 of the Federal Rules of Civil Procedure governs the methods by which a plaintiff must serve a summons and a copy of the complaint. Rule 4(m) provides that the plaintiff must serve the defendant within 90 days after the complaint is filed. Fed.R.Civ.P. 4(m). To the extent Whaley has sued the Commonwealth of Pennsylvania, Rule 4(j) provides that a state “must be served by: (A) delivering a copy of the summons and complaint to its chief executive officers; or (B) serving a copy of each in the manner prescribed by that state's law for serving summons or like process on such a defendant.” Fed.R.Civ.P. 4(j)(2). Pennsylvania does not permit service upon the Commonwealth by mail. See Pa. R. Civ. P. 422; Dougherty v. Dupes, 2018 WL 1696651, at *12 (M.D. Pa. April 6, 2018) (finding that service on the Commonwealth was not proper where the plaintiff attempted service by mail).
On March 1, 2024, we issued a show cause order directing the plaintiff to show cause as to why the Commonwealth had not been properly served. (Doc. 11). In response, Whaley filed a 37-page document, which contains some indication that he may have attempted service by certified mail. (See Doc. 13 at 33-34). This method of serving the Commonwealth simply does not satisfy Rule 4.
III. Recommendation
Accordingly, for the foregoing reasons, we recommend that this matter be DISMISSED WITH PREJUDICE for lack of subject matter jurisdiction.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.