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WARNER v. MUTUAL LIFE INS. CO.

March 26, 1998

ELLICE WARNER
v.
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, ET. AL.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 March 26, 1998

 This case is once again before the Court upon plaintiff's motion and supplemental motion to remand the matter to the state court in which it was originally filed. After careful consideration, the motions to remand shall be granted and this case shall be ordered returned to the Court of Common Pleas of Philadelphia County.

 Facts

 Plaintiff brought this suit for breach of contract against all of the defendants and for bad faith under 42 Pa.C.S. § 8371 against the Mutual Life Insurance Company of New York ("MONY"). According to the complaint, on May 8, 1991 defendant Milnazik, acting as the agent of defendants Marciano and MONY, went to plaintiff's office and conducted a personal history interview, and prepared and submitted plaintiff's application for a disability income insurance policy to be issued by MONY. (Pl's Complaint, Ps 13-15). MONY subsequently issued Plaintiff a disability income insurance policy on May 20, 1991, which policy had an annual premium of $ 1,992.20. (Pl's Complaint, Ps 16-18). Five years later, in May, 1996, Ms. Warner submitted a claim to MONY for basic monthly income benefits under the disability policy asserting that she was totally disabled from her regular occupation due to chronic pain syndrome and fibromylagia. (Pl's Complaint, Ps 21-24). Following defendants' denial of this claim in March, 1997, plaintiff brought this suit in the Court of Common Pleas of Philadelphia County in August, 1997. On August 22, Defendant MONY removed the action to this Court on the basis of diversity jurisdiction. On September 16, 1998, Plaintiff moved for remand on the grounds that, contrary to defendant's notice of removal, the district court does not have diversity jurisdiction given that M.J. Milnazik & Associates is a citizen of Pennsylvania.

 Discussion

 The principles and procedures governing removal of actions from a state court to a federal forum are set forth in 28 U.S.C. § 1441, which states in pertinent part:

 
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending...
 
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

 Thus, as § 1441(a)'s language indicates, removal under that section is proper only if the federal district court would have had original jurisdiction if the case was filed in federal court. Brown v. Francis, 33 V.I. 385, 75 F.3d 860, 864 (3rd Cir. 1996). This jurisdictional prerequisite to removal is an absolute, non-waivable requirement in recognition of the fact that any action taken by a federal court in the absence of jurisdiction is necessarily void. Id., citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3rd Cir. 1985); In Re Comcast Cellular Telecommunications Litigation, 949 F. Supp. 1193, 1199 (E.D.Pa. 1996). Thus, the removal statute is to be strictly construed and all doubts resolved in favor of remand. If there is any doubt as to the propriety of removal, that case should not be removed to federal court. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3rd Cir. 1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991); Ferraro v. Bell Atlantic, Co., Inc., 955 F. Supp. 354, 356 (D.N.J. 1997).

 Motions to remand, in turn, are governed by 28 U.S.C. § 1447. That statute provides, in relevant part:

 
(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded....

 It has long been recognized that on a motion to remand, the removing party, as the party urging the existence of jurisdiction, bears the burden of proving that jurisdiction exists. Sanderson, Thompson, Ratledge & Zimny v. Awacs, Inc., 958 F. ...


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