United States District Court, E.D. Pennsylvania
January 15, 2004.
COTTMAN TRANSMISSION SYSTEMS, LLC, Plaintiff
RONALD BENCE, Defendant
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
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
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
II. STANDARD OF REVIEW
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
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
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
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