United States District Court, Eastern District of Pennsylvania
June 8, 2000
TIFFANI CARTWRIGHT AND LARHONDA CARTWRIGHT
THOMAS JEFFERSON UNIVERSITY HOSPITAL ET AL.
The opinion of the court was delivered by: Dalzell, District Judge.
Plaintiffs' motion to remand raises an interesting and little
addressed question of removal procedure.
Plaintiffs Tiffani Cartwright and Larhonda Cartwright allege in
this action that on April 3, 1998, Tiffani Cartwright, a minor,
was injured in a fall and taken to the Thomas Jefferson
University Hospital ("Jefferson") Emergency Department for
treatment. This case stems from allegedly deficient treatment
Jefferson and associated physicians rendered to Tiffani
The Cartwrights filed this action in the Philadelphia Court of
Common Pleas. They alleged (i) negligence against Sharon
Griswold, M.D. and Alan Dias, M.D., the physicians who allegedly
treated Tiffani; (ii) vicarious liability and corporate liability
against Jefferson; (iii) violation of the Emergency Medical
Treatment and Active Labor Act, 42 U.S.C. § 1395dd ("EMTLA")
against Jefferson; and (iv) negligent infliction of emotional
distress against Jefferson, Griswold, and Dias.
Griswold was served with the Complaint on February 29, 2000 and
on March 10, 2000 removed the case to this Court, noting that we
had jurisdiction over this action as a case involving a federal
question under 28 U.S.C. § 1331. In response, the Cartwrights
have filed a motion to remand that contends Griswold was not
entitled to file a notice of removal because the EMTLA count of
the Complaint was asserted against Jefferson, not Griswold, and
no EMTLA claim could in fact be made against Griswold.*fn1 They
also argue that the only defendant who could seek removal is
Jefferson, and that there is no separate and independent claim
against Griswold that is within 28 U.S.C. § 1331 and that would
render the case removable.*fn2
Griswold contends that this Court has original jurisdiction
over this case by virtue of 28 U.S.C. § 1331 because plaintiffs
have asserted a claim under 42 U.S.C. § 1395dd. Additionally, she
notes that Jefferson, once it was served*fn3, would also seek
removal, and she takes plaintiffs to task for failing to cite any
case law to support their contention that only Jefferson could
remove the case.
We begin our analysis with the removal statute.
28 U.S.C. § 1441 states:
(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. . . .
A defendant must remove a case within thirty days after the
defendant's service of the initial pleading setting forth the
plaintiff's claim for relief, see 28 U.S.C. § 1446(b); Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119
S.Ct. 1322, 1329-30, 143 L.Ed.2d 448 (1999).
In general, "the removal statute should be strictly construed,
and all doubts should be resolved in favor of remand," Abels v.
State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985).
Moreover, the burden of establishing removal jurisdiction rests
with the defendant, see Dukes v. U.S. Healthcare, Inc.,
57 F.3d 350, 359 (3d Cir. 1995); see also Abels, 770 F.2d at 29.*fn4
We note initially that the EMTLA claim, based on federal law,
would have granted us original jurisdiction over this case under
28 U.S.C. § 1331 had it been brought here in the first instance.
As the various state law tort claims against the defendants arise
from the same nucleus of facts as the EMTLA claim, we
unquestionably may hear the state law claims as supplemental
under 28 U.S.C. § 1367(a).*fn5 There is thus no question that,
if properly removed, we have jurisdiction to hear this case. The
question before us therefore devolves to whether the case was
indeed properly removed to us.
As discussed above, the Cartwrights raise the question of
whether Griswold, who is not named in the EMTLA count of the
Complaint, had standing to remove. "[I]t is well established that
removal generally requires unanimity among the defendants,"
Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir.
1995).*fn6 In a case with co-defendants where one defendant is
served more than thirty days before other defendants, many courts
and one important commentator conclude that if the first-served
defendant fails to remove the case, that defendant is precluded
from later consenting to removal by a new defendant joined after
the thirty day period, see, e.g., Yellow Cab Co. v. Gasper,
994 F. Supp. 344, 346-47 (W.D.Pa. 1998) (noting that "[t]he majority"
of courts and Moore's Federal Practice espouse this position,
and also noting that "[t]he Third Circuit has not yet decided
Conversely, Wright and Miller contend with much force that such
a result is unfair because it denies the later-served defendants
of an opportunity to convince the first-served defendant to join
in removal, see 14C Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, Federal Practice and Procedure § 3732 at
336-39 (3d ed. 1998) (hereinafter "Wright & Miller"). See also
Yellow Cab Co., 994 F. Supp. at 348-49 (discussing the dissent
between Wright and Miller and Moore's and citing case law on
both sides). Wright and Miller correctly note that this
unfairness is avoided when all defendants are served
simultaneously, in which case the one defendant veto is effective
because it is made after a full thirty day opportunity for the
other defendants to convince the dissenter to change its view,
see 14C Charles Alan Wright, Edward H. Cooper, Arthur R. Miller
§ 3732 at 336-39.
Given the risk that Moore's and Yellow Cab describe, it
seems to us that if a case is removable, any defendant, including
a defendant not named in any federal-law count, must be permitted
to file a notice of removal. A contrary rule would permit a
plaintiff to defeat removal by the simple gambit of manipulating
the order of service of process on various defendants.*fn7
Congress surely never intended that the rights it confers could
be so easily snuffed out by adverse parties.
Thus, the removal here is not defective simply because it was
Griswold and not Jefferson who filed the notice of removal, and
we will consequently deny plaintiffs' motion to remand.