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United States District Court, E.D. Pennsylvania

January 15, 2004.


The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge


On September 30, 2003, pursuant to 28 U.S.C. § 1441, Defendant Ronald Bence removed this case from the Court of Common Pleas of Montgomery County, Pennsylvania to this Court asserting federal diversity jurisdiction under 28 U.S.C § 1332. Presently before this Court is Plaintiff Cottman Transmission Systems, LLC's ("Cottman") motion to remand. For the reasons that follow, Plaintiff's motion is denied.


  This action originated as two separate actions filed in the Court of Common Pleas of Montgomery County, Pennsylvania. In the first action, filed on February 10, 2003, Plaintiff sought damages in the amount of $46,884.48 arising from Defendant's alleged default on a promissory note. In the second action, filed on February 25, 2003 against the same Defendant, Plaintiff asserted, inter alia, separate claims of fraud and breach of a franchise agreement. On August 7, 2003, Plaintiff filed a motion to consolidate these two actions. Defendant agreed to the proposed consolidation and prepared a Joint Stipulation containing the language set forth in the proposed order attached to Page 2 Plaintiff's motion. Thereafter, on September 16, 2003, the Honorable Calvin S. Drayer, Jr. of the Montgomery County Court of Common Pleas entered an order consolidating the two actions and stating as follows:

Counsel for plaintiff Cottman Transmission Systems, LLC, William B. Jamison, Esquire, and counsel for defendant Ronald Bence, Cipriani & Werner, P.C. and Anthony W. Hinkle, Esquire, hereby stipulate to the consolidation of the above referenced [sic] actions to the first filed matter bearing Civil Action No. 03-02402. The pleadings in the respective actions hereby consolidated will remain as pleadings in the consolidated action, and the findings, verdicts and judgments in the consolidated action will be entered as if the said actions had been originally commenced as a single action.
(Def.'s Mem. of Law in Opp'n to PL's Mot. to Remand at 2.) On September 30, 2003, Defendant removed the consolidated case to the United States District Court for the Eastern District of Pennsylvania asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332. On November 3, 2003, Plaintiff filed a motion to remand challenging this Court's jurisdiction.


  Under 28 U.S.C. § 1441(a), a defendant in a state court action may remove the action to a federal forum if "the district courts of the United States have original jurisdiction" over the action. 28 U.S.C. § 1441(a) (2003). Federal district courts have original jurisdiction over all civil actions between citizens of different states if the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1) (2003). The burden of demonstrating the existence of federal jurisdiction rests with the defendant and the defendant's right to remove is determined according to the plaintiffs' pleading at the time of the petition for removal. Pullman Co. v. Jenkim, 305 U.S. 534, 537, 540 (1939); see also Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Page 3 Cir. 1985) ("Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand.").

  In addition to satisfying the amount in controversy and diversity requirements, a defendant must comply with the procedures for removal contained in 28 U.S.C. § 1446. Specifically, § 1446(b) requires a defendant to file a notice of removal within thirty days after receipt of the initial pleading. 28 U.S.C. § 1446(b) (2003). Importantly for purposes of this motion, however, the statute also provides that where an initial pleading is not removable as originally filed, but subsequently becomes subject to removal through some later event:

[A] notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Id. If the federal court determines that it does not have subject matter jurisdiction over a removed action because any of the preceding requirements have not been met, the court must remand the action to the state court where it originated. 28 U.S.C. § 1447(c) (2003).


  Determining whether jurisdiction is proper in this Court requires the resolution of two disputed issues: (1) whether the state court consolidation order created a single action for purposes of meeting the $75,000 amount in controversy requirement; and (2) whether Defendant's notice of Page 4 removal was timely filed.*fn1

  The general rule is that claims brought by a single plaintiff against a single defendant can be aggregated when calculating the amount in controversy, regardless of whether the claims are related to each other. Snyder v. Harris, 394 U.S. 332, 335 (1969) ("Aggregation has been permitted . . . in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant."); Suber v. Chrysler Corp., 104 F.3d 578, 588 (3d Cir. 1997); see also 14C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3725, at 100 (3d ed. 1998) ("[I]t is well-settled that two or more claims between a single plaintiff and a single defendant may be aggregated for purposes of determining whether the jurisdictional amount requirement has been met for removal purposes."). The fact that Plaintiff's claims were aggregated by virtue of a state court consolidation order does not disturb application of the general rule. The consolidation order in this case, which was instigated by Plaintiff's own motion, makes clear that the combined actions are to be treated as if they "had been originally commenced as a single action." See Keefer v. Keefer, 741 A.2d 808, 811 (Pa. Super. 1999) ("When a judge orders several cases consolidated . . . the individual cases shed their separate identities and merge into a single action . . . only one action retains its identity and the others are absorbed by it.") (internal quotation omitted). Furthermore, other courts have held that a defendant may properly remove an action to federal court if the jurisdictional threshold is met by virtue of a state court consolidation order. See Tonyco, Inc. v. Equity Mktg., Inc., No. 99-74995, 2000 U.S. Dist. LEXIS 6801, at *9, 2000 WL 654957, at *3 (E.D. Mich. Apr. 24, 2000) (noting that "had these two actions been consolidated in the state courts, then Page 5 Defendant would be able to properly remove them to this Court if the aggregated amount in controversy exceeded $75,000); WRIGHT ET AL., at 100 n.51 (citing Bley v. Travelers Ins. Co., F. Supp. 351 (S.D. Ala. 1939)); 114 n.76 (citing Parkhill Produce Co. v. Pecos Valley S. Ry. Co., 6 F. Supp. 404 (S.D. Tex. 1961)). Accordingly, when Plaintiff's claims against the Defendant are aggregated, the amount in controversy exceeds the $75,000 jurisdictional threshold.

  With respect to the timing issue, Plaintiff asserts that Defendant's notice of removal was untimely because it was filed approximately seven months after the filing of the original state court complaints. Prior to the consolidation, however, the state court actions were not removable because they did not meet the threshold jurisdictional requirements. As stated above, § 1446(b) provides that removal may be initiated within thirty days after filing of an "order or other paper" from which it may first be ascertained that the case is one subject to removal. 28 U.S.C. § 1446(b). This action became removable upon the entry of the state consolidation order and was timely removed sixteen days later.

  In conclusion, this Court finds that the instant action was properly removed because the underlying claims satisfy the jurisdictional requirements for diversity and the notice of removal was timely filed within thirty days from when the action became removable. An appropriate Order follows.


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