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YELLOW CAB CO. v. GASPER

February 9, 1998

YELLOW CAB COMPANY of PITTSBURGH, a Corporation, Plaintiff,
v.
CARL GASPER, an Individual, GASPER TRANSPORTATION COMPANY, a Corporation, CARRIAGE LIMOUSINE SERVICE, a Corporation, LANDMARK TRANSPORTATION SERVICES, INC., a Corporation, Defendants.



The opinion of the court was delivered by: SMITH

 D. BROOKS SMITH, District Judge.

 This is a trademark and unfair competition dispute between Yellow Cab Company and one of its competitors. It arises largely out of a television commercial which depicted passengers in a Yellow Cab being subjected to an unpleasant, unsafe and untimely journey while passengers in the competitor's limousine enjoyed a safe, comfortable, luxurious trip. Yellow Cab filed suit in the Court of Common Pleas of Allegheny County, where a preliminary injunction was entered and where defendants' preliminary objections were for the most part denied. Defendants then removed the action to this court; presently before me is plaintiff's motion to remand. For the following reasons, I will grant the motion.

 I.

 Yellow Cab has a long history of providing taxicab service in the Pittsburgh area which needs no extensive recitation, except to recount that it holds the exclusive franchise to provide service for trips originating at Greater Pittsburgh International Airport. Defendants Landmark and Carriage operate a luxury-oriented "executive" service using vans and Lincoln Town Cars to provide "on-call" transportation services to their customers. Defendant Gasper Transportation Company ("GTC") is a recently formed holding company which holds all the stock of Landmark and Carriage. Defendant Carl Gasper is the President of all three corporate defendants.

 According to plaintiff, defendants "falsely and disparagingly portrayed Yellow Cab in a negative light, orally and in various media . . ., with actual intent to deceive and to cause pecuniary loss to Yellow Cab." Plaintiff specifically takes exception to a "particular commercial video advertisement in which a vehicle in the trade dress of a Yellow Cab was purportedly [traveling] from the Greater Pittsburgh International Airport to downtown Pittsburgh. . . ." Plaintiff contends that this advertisement, which was allegedly displayed on the "Jumbotron" screen at Pittsburgh Penguins hockey games and on at least one local television station, "put Yellow Cab in a false light, disparaged, defamed, infringed upon and diluted the distinctive quality of the famous Yellow Cab trade names, marks and dress, in violation of the Lanham Act, the Pennsylvania Trademark Protection Act, and the Pennsylvania law of unfair competition, commercial disparagement, defamation, and tortious interference with prospective business relations." Dkt. no. 5, at 1-2 (citations omitted). Defendants, of course, deny any wrongdoing.

 On February 26, 1997, plaintiff commenced this action against defendants Carriage and Landmark in state court. On or about March 31, that court issued a preliminary injunction enjoining those defendants from broadcasting the offending advertisement. Defendants then filed preliminary objections, in accordance with state practice, on or about April 9. These were denied in substance by the court on May 27, although one procedural objection was granted and plaintiff was required to amend its complaint to place its state and federal law trademark claims in separate counts.

 Meanwhile, some discovery had taken place and plaintiff learned that Mr. Gasper had subsequently transferred all of the capital stock of Carriage and Landmark to a new entity he created, GTC, and of which he is an officer, director and sole shareholder. When plaintiff amended its complaint on July 14, it joined GTC and Mr. Gasper as additional defendants; these new defendants were served with the complaint two days later. Attorney Richard F. Andracki entered an appearance on behalf of all defendants, including Carriage and Landmark, on July 30. That same day, he filed a notice of removal to this court based on the presence of plaintiff's federal trademark claim. All defendants purportedly consented to the removal. On August 28, plaintiff filed the instant motion to remand.

 II.

 Plaintiff asserts that defendants' attempt at removal is untimely. I begin my analysis with the axiomatic proposition that "the removal 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) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)). The removing party bears the burden of demonstrating that removal was proper. Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3d Cir. 1995). Under the removal statute:

 
The notice of removal in a civil action or proceeding shall be filed within thirty 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). It is well-settled, although not explicitly set forth in the statute, that all defendants must join in any petition for removal; this is known as the "rule of unanimity." E.g., Chicago. R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 248, 44 L. Ed. 1055, 20 S. Ct. 854 (1900); Ogletree v. Barnes, 851 F. Supp. 184, 186 (E.D. Pa. 1994); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (E.D. Pa. 1982), (citing cases); Crompton v. Park Ward Motors, Inc., 477 F. Supp. 699, 701 (E.D. Pa. 1979) (citing cases).

 
Because of the requirement that all properly served defendants who are not purely nominal must join in the petition for removal, some district courts have held that failure of the first defendant served to file a petition for removal within thirty days of service will prevent all subsequently served defendants from removing the action. Since one defendant always can preclude removal by refusing to join in the removal petition, this result is not unfair when all of the defendants are served simultaneously. However, when some of the defendants are served after the first defendant served has waived the removal right by not exercising it within the statutory period, the subsequently served defendants are deprived of the opportunity to persuade the first defendant to join in the removal petition.

 14A Charles A. Wright et al., Federal Practice & Procedure § 3732, at 531-32 (2d ed. 1985). Moore, in contrast, takes the opposite view:

 
In general, if a case involves multiple defendants and the case is removable at that time, the 30-day removal period begins to run when the first defendant is served. If that defendant does not remove the case within 30 days, a majority of courts hold that the right to remove is waived and subsequently served defendants cannot remove. Thus, any defendant who is served more than 30 days after the initial defendant is served is effectively banned from removing the case. However, some courts hold that this rule ...

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