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FISCHMAN v. FISCHMAN

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


May 2, 1979

May S. FISCHMAN
v.
Harry FISCHMAN and the Old Reading Brewery, Inc.

The opinion of the court was delivered by: HUYETT

ON MOTIONS TO VACATE AND TO ENJOIN

Plaintiff commenced this action in the Court of Common Pleas of Philadelphia County on October 23, 1978. On December 27, 1978, defendant Old Reading Brewery, Inc. filed a removal petition with the Clerk of this court. Plaintiff expressed her intention to move to remand the case to state court, and by an Order of January 19, 1979, she was directed to file her motion by March 1, 1979. No motion was ever filed. On March 27, 1979, however, plaintiff filed an affidavit of service in the Court of Common Pleas. Defendant Harry Fischman has now filed with this court a "motion to vacate and enjoin attempted service of process and other action in suit removed from Pennsylvania state court to the United States District Court for the Eastern District of Pennsylvania."

 28 U.S.C. § 1446(e) provides that

 

Promptly after the filing of (a removal petition of a civil case) and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

 Process after removal is discussed in § 1448 of the same Title. That section provides that

 

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.

 That section has been interpreted to mean that

 

where the defendant has never been put on notice of the state court proceeding prior to removal . . . the federal court cannot "complete" the state process by permitting it to be served after removal; rather the federal court must issue new process pursuant to Rule 4 of the Federal Rules of Civil Procedure. The state court process becomes null and void on the date the action is removed to the federal court.

 Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir. 1967). See also Allman v. Hanley, 302 F.2d 559 (5th Cir. 1962); DiCesare-Engler Productions, Inc. v. Mainman Ltd., 421 F. Supp. 116 (W.D.Pa.1976).

 Plaintiff has filed a memorandum of law in opposition to defendant's motion. In her memorandum, plaintiff states that she "was under the misapprehension that service of process was to continue in the state court with respect to the unserved defendant, even after Old Reading had filed its petition for removal. Admittedly, plaintiff was wrong. Plaintiff has already taken steps to effectuate service of process through the proper procedures of this Court." Plaintiff's memorandum contra defendant Harry Fischman's motion to vacate and enjoin service of process and other action in suit removed from Pennsylvania state court to the United States District Court for the Eastern District of Pennsylvania at 2. Plaintiff's memorandum suggests no reason, however, why defendant's motion should not be granted.

 We agree with defendant that following removal, exclusive jurisdiction of this action is vested in this court. See Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975); Barrett v. Southern Railway Co., 68 F.R.D. 413 (D.S.C.1975). We therefore believe that plaintiff's actions in reinstituting her complaint in state court and filing an affidavit of service in that action are void and should be vacated. Defendant also requests that we enjoin plaintiff from taking any further action whatsoever in this case in the Court of Common Pleas. We believe, however, that plaintiff's memorandum reveals that plaintiff's actions in state court were the result of a "misapprehension" rather than part of an attempt to harass defendant. We therefore decline to enjoin plaintiff at this time. A plaintiff may not, however, attempt to avoid the effect of the removal statutes. See Brown v. Seaboard Coast Line Railroad Co., 309 F. Supp. 48 (N.D.Ga.1969). Defendant may renew his motion in this regard if necessary.

19790502

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