United States District Court, Eastern District of Pennsylvania
April 3, 2001
RICHARD A. SPRAGUE, PLAINTIFF,
AMERICAN BAR ASSOCIATION, ABA JOURNAL AND TERRY P. CARTER, DEFENDANTS.
The opinion of the court was delivered by: Yohn, District Judge.
MEMORANDUM AND ORDER
On October 2, 2000, Richard Sprague ["plaintiff"] initiated
this libel action against the American Bar Association ["ABA"],
the ABA Journal, and Terry P. Carter ["defendants"] in the Court
of Common Pleas, Philadelphia County, Pennsylvania. Defendant
Carter was served with a copy of the writ of summons and a civil
cover sheet on October 6, 2000. The remaining two defendants
were served with a copy of the writ of summons and a civil cover
sheet on October 12, 2000. The writ of summons identified the
names and addresses of both plaintiff and defendants. The civil
cover sheet indicated that the case type was "libel/slander" and
that the amount in controversy was more than $50,000. On January
11, 2001, plaintiff filed the instant complaint. The date
defendants were served with that complaint is not evident from
the record. Nonetheless, it is evident that on January 24, 2001,
thirteen days after the filing of plaintiff's complaint,
defendants removed plaintiff's action to this court. On February
12, 2001, plaintiff moved for remand alleging that defendants'
removal was untimely because it was filed more than thirty days
after defendants received adequate notice of federal
jurisdiction. Because I find that defendants' removal was
timely, plaintiff's motion to remand will be denied.
As to timeliness, the procedure for removal is outlined in
28 U.S.C. § 1446(b). That statute provides in pertinent part:
The notice of 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,
or within thirty days after the service of summons
upon the defendant if such initial pleading has then
been filed in court and is not required to be served
on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b).
Plaintiffs sole contention is procedural — that defendants'
removal was improper because defendants were served with the
writ of summons in October 2000, three months before defendants
removed the action to federal court. Defendants counter that the
Supreme Court's recent decision in Murphy Brothers, Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322,
143 L.Ed.2d 448 (1999), requires the court to hold that a writ
of summons cannot trigger the running of the thirty-day time
period for removal. Alternatively, defendants argue that because
the writ of summons did not provide sufficient notice of federal
diversity jurisdiction, the removal period did not begin to run
until service of the complaint.
In Murphy Brothers, the Supreme Court addressed "a
closely-related, yet different question:
whether the named defendant must be officially
summoned to appear in the action before the time to
remove begins to run. Or, may the 30-day period start
earlier, on the named defendant's receipt, before
service of process of a `courtesy copy' of the filed
complaint faxed by counsel for the plaintiff?"
Davidson v. Nat'l R.R. Passenger Corp., No. Civ. A. 00-1226,
2000 WL 795881, at *2 n. 2 (E.D.Pa. June 9, 2000) (citing
Murphy Brothers, 526 U.S. at 347, 119 S.Ct. 1322
). The Court
held that the thirty-day removal period does not commence by
"mere receipt of the complaint unattended by any formal
service." Murphy Brothers, 526 U.S. at 348, 119 S.Ct. 1322
Defendants argue that this holding requires the court to find
that their removal period did not begin to run until formal
service of the complaint. I conclude, however, that defendants
read the Supreme Court's holding too expansively. First, the
issue in Murphy Brothers concerned whether receipt of a
"courtesy copy" of a complaint, as opposed to official service,
sufficed to commence the removal period. The Court held that
official service was required. In the instant case, defendants
did receive formal service of the writ of summons. Moreover,
Murphy Brothers concerned Alabama civil procedure which does
not allow for a writ of summons to commence an action, as does
Pennsylvania procedure. Accordingly, the portion of the Supreme
Court's holding applicable to this case is that official service
of the initial pleading is required to trigger the thirty-day
period. Because not faced with the question, the Court did not
hold that the "initial pleading" necessarily must be the
complaint. Therefore, the law of this circuit in place before
Murphy Brothers will serve to guide the instant inquiry. See,
e.g., Davidson, 2000 WL 795881, at *2 n. 2 (distinguishing
Murphy Brothers); Steff v. Township of Salisbury, No. Civ. A.
992931, 1999 WL 761134, *1 (E.D.Pa. Sept. 21, 1999) (finding
that Murphy Brothers did not overrule Third Circuit precedent
concerning when removal period begins); but see Whitaker v.
Fresno Telsat Inc., No. 99 Civ. 6059(SAS), 1999 WL 767432, at
*1-2 (S.D.N.Y. Sept. 28, 1999) (holding that Murphy Brothers
requires that removal period is triggered only by proper service
of complaint and not by service of Summons with Notice);
Quinones v. Minority Bus Line Corp., No. 98-Civ. 7167(WHP),
1999 WL 225540, at *2 (S.D.N.Y. April 19, 1999) (same).
The Third Circuit has addressed the issue of when the
thirty-day period provided for by § 1446(b) begins. See Foster
v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 54 (3d
Cir. 1993). In Foster, the plaintiff argued that
"correspondence accompanying the summons should, together with
the summons, constitute sufficient notice of [federal]
jurisdiction as to trigger the thirty-day limit." Id. at 53.
The correspondence at issue constituted correspondence between
counsel that had been served on the defendant along with the
summons. See id. at 53.
The Third Circuit first concluded that "the relevant test is
not what the defendant purportedly knew, but what the
documents said." Id. at 54. The Foster court then adopted
the rationale of the district court in Rowe v. Marder,
750 F. Supp. 718, 721 n. 1 (W.D.Pa. 1990), aff'd, 935 F.2d 1282 (3d
Cir. 1991), which concluded that "at a minimum, anything
considered a pleading must be something of the type filed with a
court." Foster, 986 F.2d at 54. Finally, the Third Circuit
held as follows: "§ 1446(b) requires defendants to file their
Notices of Removal within thirty days after receiving a writ of
summons, praecipe, or complaint which in themselves provide
adequate notice of federal jurisdiction[.]" Id. at 54.
In this case, defendants were served with a writ of summons
and a civil cover sheet. Although the precise language in the
Foster holding leaves open the question whether courts should
consider a civil cover sheet as part of the initial pleading,
this court has held that a civil
cover sheet is clearly "something of the type filed with a
court." See, e.g., Scerati v. Lewellyn Mfg., Inc., No. Civ. A.
693628, 1996 WL 334376, at *2-3 (E.D.Pa. June 18, 1996); see
also, e.g., Mangano v. Halinca No. Civ. A. 97-1678, 1997 WL
697952, at *2-3 (E.D.Pa. Nov. 3, 1997) (holding same).
Accordingly, the inquiry, limited to the four corners of the
pleading, is "whether the documents inform the reader, to a
substantial degree of specificity, whether all the elements of
federal jurisdiction are present." Foster, 986 F.2d at 53
(citation omitted). In other words, do the writ and civil cover
sheet alert defendants that (1) plaintiff and defendants are
citizens of different states, and (2) the amount in controversy
exceeds $75,000. See 28 U.S.C. § 1332(a)(2) (West 1997).
Because the writ and cover sheet do not sufficiently inform
defendants of the presence of these two jurisdictional
prerequisites, I find that the removal period did not begin to
run upon service thereof.
First, the writ contains nothing more than the names of the
parties and their respective addresses. Jurisdiction pursuant to
§ 1332(a)(2), however, requires that the citizenship of the
parties, and not merely their residences or addresses, be of
different states. See Krasnov v. Dinan, 465 F.2d 1298 (3d Cir.
1972); Icipa S.R.L. v. Learjet, Inc., No. Civ. A. 97-2725,
1997 WL 400024, at *1 (E.D.Pa. July 10, 1997) (requiring express
allegation of citizenship and not mere address) (citations
omitted); Sepulveda v. General Motors Corp., No. Civ. A.
96-8299, 1997 WL 22409, at *2 (E.D.Pa. Jan. 21, 1997) (finding
that complaint, and not summons, established diversity of
citizenship where the summons merely set forth the parties'
addresses). For purposes of diversity jurisdiction, an
individual is a citizen of the state in which he is domiciled.
See, e.g., Juvelis ex re. Juvelis v. Snider, 68 F.3d 648, 654
(3d Cir. 1995). Moreover, domicile is not always the same as
residence, and a person may reside in one place, but be
domiciled elsewhere. See, e.g., Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104
L.Ed.2d 29 (1989); Juvelis, 68 F.3d at 651 n. 3 ("`[T]he
domicile of a person is the place where he has his true, fixed
home and principal establishment, and to which, whenever he is
absent, he has the intention of returning. Domicile . . . is
more than an individual's residence, although the two typically
coincide.'") (citing 13B Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3612 (2d ed.
1984)). A corporation, on the other hand, "shall be deemed to be
a citizen of any State by which it has been incorporated and of
the State where it has its principal place of business. . . ."
28 U.S.C. § 1332(c)(1). The writ provides no information about
the state of incorporation or the principal place of business of
the corporate defendant. Therefore, because the writ merely
states the addresses of the parties, it does not allege fully
the citizenship of all parties and defendants were not put on
notice that diversity jurisdiction existed.
Second, the civil cover sheet indicated only that the amount
in controversy was more than $50,000. The question becomes
whether more than $50,000 is sufficient to meet the $75,000
federal jurisdictional threshold. Plaintiff argues that because
other recent Pennsylvania libel actions were worth well more
than $75,000, defendants should have known that the value of
this case likewise exceeded that amount. Foster, however,
instructs that the "relevant test is not what the defendant
purportedly knew, but what the documents said." Foster, 986
F.2d at 54. As such, the value of other Pennsylvania libel
actions is irrelevant to this inquiry. Plaintiff also contends
that the court is permitted to
make an independent valuation of plaintiffs claim. Plaintiffs
cited cases, however, do not support a finding that valuing a
case at more than $50,000 in a civil cover sheet is sufficient
to notify defendants of federal jurisdiction. For example, in
Angus v. Shiley Inc., 989 F.2d 142 (3d Cir. 1993), the Third
Circuit found that where a complaint asserted a claim for
compensatory damages in excess of $20,000 and a punitive damage
claim in excess of $20,000, the $50,000 federal jurisdictional
minimum was met. 989 F.2d at 146.*fn1 The court stated that
"[g]iven that the complaint does not limit its request for
damages to a precise monetary amount, the district court
properly made an independent appraisal of the value of the
claim. . . ." Id. The instant case, however, differs from
Angus because the court there had not just a mere cover sheet,
but an actual complaint complete with factual allegations, to
assist it in valuing plaintiffs claim. Moreover, it is less of a
stretch to conclude that two claims demanding more than $40,000
in compensatory and punitive damages are sufficient to allege a
$50,000 value, than it would be to conclude that a stated value
of more than $50,000 in damages alleges adequately at least a
$75,000 claim. Accordingly, I find that the civil cover sheet
was insufficient to notify defendants that original federal
jurisdiction existed. See Mangano, 1997 WL 697952, at * 5
(finding that plaintiffs statement in the complaint that damages
were in excess of $50,000 was insufficient to establish damages
in excess of $75,000 for purposes of diversity jurisdiction).
Therefore, because the writ of summons and civil cover sheet
did not put defendants on notice that the case was removable,
this pleading did not constitute an "initial pleading" for
purposes of § 1446(b). Moreover, because defendants removed this
case within thirty days of service of the complaint, I conclude
that defendants' notice of removal was timely. Consequently,
plaintiffs motion to remand this action to state court will be
AND NOW, this day of April, 2001, upon consideration of
plaintiffs motion to remand to state court and supporting
memoranda (Doc. Nos. 4, 10), and defendants' response thereto
(Doc. No. 7), IT IS HEREBY ORDERED that plaintiffs motion to
remand is DENIED.