United States District Court, E.D. Pennsylvania
February 10, 2004.
CITY OF PHILADELPHIA
The opinion of the court was delivered by: HERBERT HUTTON, District Judge
MEMORANDUM AND ORDER
Currently before the Court are Plaintiff's Motion for Remand and
Attorney's Fees (Docket No. 2), Defendant's Response thereto (Docket No.
4), Plaintiff's Reply to Defendant's Response (Docket No. 7), and
Defendant's Motion to Dismiss (Docket No. 3).
I. PROCEDURAL BACKGROUND
Plaintiff Michael Willis ("Plaintiff") commenced this action in the
Court of Common Pleas of Philadelphia County by filing a praecipe for a
writ of summons on May 5, 2003. Defendant City of Philadelphia
("Defendant") was served with the summons on or about the same day. On
May 13, 2003, the court, upon praecipe of Defendant, entered a rule upon
Plaintiff to file a complaint within 20 days or suffer a judgment of non
pros. Plaintiff did not file a complaint within the allotted 20 days and a
judgment of non pros was entered against him on July 15, 2003. On July
24, 2003, Plaintiff filed a petition for relief from the non pros. In
accordance with Pa. R. Civ. P. 237.3, Plaintiff attached his proposed
complaint to the petition that indicated the action had federal subject
matter jurisdiction. On September 8, 2003, the
state court granted Plaintiff's petition, vacating the judgment of
non pros and allowing Plaintiff's case to move forward. On September 12,
2003, Plaintiff filed the formal Complaint and served it on Defendant.
Then, on September 24, 2003, 16 days after the non pros was vacated but
62 days after Plaintiff petitioned the court for relief with a proposed
complaint, Defendant filed a removal notice and the case was removed to
Plaintiff seeks remand arguing that the removal notice is procedurally
flawed because it was filed after the 30 day period proscribed by
28 U.S.C. § 1446(b). Defendant argues that the 30 day period did not
begin until after the state court vacated the judgment of non pros, thus,
the removal notice was timely.
II. LEGAL FRAMEWORK
In general, a defendant may remove a civil action filed in state court
if the federal court would have had original jurisdiction to hear the
matter. 28 U.S.C. § 1441(b). Notice of removal must 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. . . ."
28 U.S.C. § 1446(b) (emphasis added). The federal court may remand the
case to state court if there was a procedural defect in removal, such as
filing the removal notice 30 days after receipt of the initial pleading.
28 U.S.C. § 1447(c). The Court of Appeals for the Third Circuit has
defined the initial pleading as a writ of summons, praecipe, or complaint
which themselves provide adequate notice of federal jurisdiction. See
Foster v. Mutual Fire, Marine & Island Ins. Co., 986 F.2d 48, 53 (3d
Cir. 1993). The determination is based only on the four corners of the
initial pleading and it alone must indicate that federal jurisdiction is
present. See id. at 53-54. (adopting reasoning of Rowe v. Marder,
750 F. Supp. 718 (W.D. Pa. 1990)).
The Supreme Court of the United States recently visited removal and
remand procedures in Murphy Brothers v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999). The Court stressed that service of process on a
defendant is a key factor in deciding whether or not removal was
An individual or entity named as a defendant is not
obliged to engage in litigation unless notified of the
action and brought under a court's authority by formal
process. Accordingly, we hold that a named defendant's
time to remove is triggered by simultaneous service of
summons and complaint, or receipt of the complaint,
"through service or otherwise," after and apart from
service of summons, but not by mere receipt of the
complaint unattended by any formal service.
Murphy Bros., 526 U.S. at 347-48 (quoting § 1446(b)). Thus, what
constitutes an "initial pleading" in this case must conform with the
Third Circuit's definition in Foster and with the general requirements
set forth by the United States Supreme Court in Murphy Brothers. See
Sprague v. Am. Bar Ass'n, 166 F. Supp.2d 206, 208 (E.D. Pa. 2001) (holding
Foster is still good law in this circuit after Supreme Court decided
Murphy Brothers); Steff v. Twp. of
Salisbury, No. 99-2931, 1999 U.S. Dist. LEXIS 14966, *1 (E.D. Pa. Sept.
21, 1999) (same).
A. Motion to Remand
The Court must decide whether a petition to strike a judgment of non
pros filed in Pennsylvania state court will trigger the start of the 30
day removal period. The initial burden is on Plaintiff, as the moving
party, to show that removal was improper. See Batoff v. State Farm
Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992). Plaintiff argues that
Defendant's removal notice simply was not filed in time because Defendant
was served with summons, received the complaint indicating the federal
cause of action and triggering the 30 day period, and then failed to file
for removal before the 30 days expired. The Court agrees.
The petition for relief from the non pros, combined with service of the
writ of summons, constituted an initial pleading. Under Foster, an
initial pleading is a writ of summons, praecipe, or complaint, or
combination thereof, that provides notice to the defendant of federal
jurisdiction. See Foster, 986 F.2d at 54. A pleading must be, at a
minimum, "something of the type filed with a court." Id. (quoting Rowe,
750 F. Supp. at 721 n.1); Schnable v. Drexel Univ., No. 95-21, 1995 U.S.
Dist. LEXIS 9787, *6 (E.D. Pa. July 10, 1995) (explaining that Foster
does not require that the document actually have been filed with a
court, or even that the
document be served). Here, Plaintiff served Defendant with a writ of
summons on May 5, 2003. Then, on July 24, 2003, Defendant received
Plaintiff's proposed complaint, which was filed with the state court as a
mandatory exhibit to Plaintiff's petition to strike the non pros. Pa. R.
Civ. P. 237.3. Those two procedural facts are sufficient to meet the
basic requirements of § 1446(b), Foster, and Murphy Brothers. See, e.g.,
Murphy Bros., 526 U.S. at 353 ("[I]f the defendant is served with the
summons but the complaint is furnished to the defendant sometime after,
the period for removal runs from defendant's receipt of the complaint.");
Asante v. Audio Visual and Labs, Inc., No. 00-6399, 2001 U.S. Dist. LEXIS
15862 (E.D. Pa. Sept. 19, 2001) (holding that service of a writ of
summons with a draft complaint attached constitutes the initial pleading
under Foster and triggers the 30 day removal period); Dubin v. Principal
Financial Group, No. 01-79, 2001 U.S. Dist. LEXIS 4910 (E.D. Pa. Apr.
23, 2001) (service of summons and separately mailed complaint are
sufficient); Fumo v. Gallas, No. 00-4774, 2001 U.S. Dist. 1140 (E.D. Pa.
Feb. 6, 2001) (service of summons and separately mailed proposed amended
complaint, filed as an exhibit to a petition to amend the complaint, are
The burden now shifts to Defendant. Defendant argues that, upon first
glance, Plaintiff's argument is correct. Defendant continues, however,
that based on the relationship between Pennsylvania rules of civil
procedure and the United States Supreme
Court's holding in Murphy Brothers, the petition for relief from the non
pros could not have started the 30 day removal period. As Defendant points
out, Murphy Brothers stands for the "bedrock principle" that an
individual is not obliged to engage in litigation before formal service
of process because service triggers a court's authority over the
individual. See Murphy Bros., 526 U.S. at 347-48. Based on this
principle, Defendant acknowledges that the 30 day clock would have started
if Plaintiff had served a complaint on Defendant before the state court
entered the judgment of non pros. Once the non pros was entered,
however, Defendant asserts that the case essentially was terminated,
ending any jurisdiction the court had over Defendant. At that point,
Defendant claims it ceased to be a party to the action and the action
itself no longer existed. Defendant contends that a defendant cannot be
expected to remove an action where a non pros has been entered against
the plaintiff because, based on Murphy Brothers, the state court has no
authority over him and the action itself has ceased to exist. Def.'s
Mot. in Opp. at 6 (Docket No. 4). Defendant concludes that the
responsibility to remove the action to federal court was triggered and
the 30 day period began to run only after the state court granted
Plaintiff's petition to strike the non pros.
Although compelling, Defendant's argument ultimately fails. First, as
explained above, Plaintiff's motion meets the basic requirements to
remand this case and, as the Third Circuit has
noted, courts must strictly construe the removal statutes and resolve any
questions in favor of remand. See, e.g., Boyer v. Snap-On Tools Corp.,
913 F.2d 108, 111 (3d Cir. 1990).
Second, the constitutional concerns raised in Murphy Brothers are not
implied in this case. In Murphy Brothers, the plaintiffs filed a
complaint with the court and mailed a "courtesy copy" of the complaint to
the defendants. One month later, the defendant was served according to
Alabama state law. The defendant filed a notice of removal less than 30
days after being served, but more than 30 days after receipt of the
courtesy copy of the complaint. The Supreme Court was troubled that the
30 day period could start to run before the defendant was formally
served; "i.e., before one is subject to any court's authority." Murphy
Brothers, 526 U.S. at 356. Here, Defendant was served on May 5, 2003, and
was thereafter subject to the state court's authority. Pennsylvania Rule
of Civil Procedure 1037(a) allows a court to enter upon a plaintiff a
judgment of non pros, or non suit, if the plaintiff chooses to commence
the action with a writ of summons and subsequently fails to file a
complaint within a certain time period.*fn1 After a non pros is
entered, the plaintiff has a ten day window to have the judgment
removed. See Pa. R. Civ. P. 237.3(b). During that time, the case
remains on the state court's docket and only after the ten days does the
non pros become a final, appealable judgment. See Sahutsky v. H.H.
Knoebel Sons, 566 Pa. 593, 599 (2001); Dombrowski v. Cherkassky,
456 Pa. Super. 801, 804 (1997). Thus, the state court assumed authority
over Defendant on May 5, 2003, upon service of summons, and the court
retained authority over Defendant until Defendant filed the removal
notice on September 24, 2003. The "bedrock principle" enunciated in
Murphy Brothers was not violated under these circumstances.*fn2
Third, cases from this judicial district support this Court's
conclusion. In a case directly on point, Pozgai v. J. Vinch & Sons,
Inc., Judge Fullam held that the 30 day removal period began to run when
defendants received the Plaintiff's petition to strike the judgment of
non pros, together with the proposed complaint. Pozgai, No. 93-1360, 1993
U.S. Dist. LEXIS 5143, *3 (E.D. Pa. April 14, 1999). He remanded the case
to state court because the defendants
had not timely filed the notice of removal. Id.
Lastly, the Court notes that the choice faced by Defendant, although a
difficult tactical decision, is not akin to the "Hobson's choice"
described by Judge Higginbotham writing for the Third Circuit in Foster.
In Foster, as in Murphy Brothers, the courts were concerned that a
defendant would be forced to remove an action before knowing what the
suit is about, risking that a federal court would just remand back to
state court. Murphy Brothers, 526 U.S. at 352 (discussing legislative
history of 28 U.S.C. § 1446(b)); Foster, 986 F.2d at 52-53; Steff v. Twp.
of Salisbury, No. 99-2931, 1999 U.S. Dist. LEXIS 14966, *5 (E.D. Pa.
Sept. 21, 1999). That is not the case here. Proof of federal jurisdiction
was evident from the petition to remove the judgment of non pros.
Further, although courts have recognized that challenging a petition to
remove a non pros is not a merit-based procedure, see Selvaggi v.
Prudential Property and Casualty Insurance Co., 871 F. Supp. 815, 817-18
(E.D. Pa. 1995) (explaining that a judgment of non pros does not operate
as a judgment on the merits and defendant does not waive rights to remove
for seeking one), Defendant should not get an opportunity to forum shop
and have two opportunities to test the validity of Plaintiff's
complaint. For the reasons stated above, the Court holds that
Defendant's notice of removal was not timely filed. The thirty day period
1446(b) began to run on July 24, 2003, when Defendant received
Plaintiff's petition to remove the judgment of non pros with a proposed
complaint attached, not on September 8, 2003, when the state court
actually granted Plaintiff's petition and removed the non pros.
Accordingly, Plaintiff's motion to remand is granted.
B. Motion for Attorney's Fees
28 U.S.C. § 1447(c) states that "[a]n order remanding the case may
require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal." This Court has explained that
an award should be granted "only where the removal of the case was made
in bad faith and was clearly without legal support." Fremponcr-Atuahene
v. City of Phila., 99-1956, 1999 U.S. Dist. LEXIS 17382, *5-6 (E.D. Pa.
Nov. 8, 1999). Defendant's removal was based on a good faith
interpretation of the law and its arguments in opposition to Plaintiff's
motion to remand, although not accepted by this Court, are not "clearly
without legal support." Accordingly, Plaintiff's request for attorney's
fees is denied.
An appropriate Order follows.
AND NOW, this 10th day of February, 2004, upon consideration of
Plaintiff's Motion for Remand and Attorney's Fees (Docket No. 2),
Defendant's Response thereto (Docket No. 4), Plaintiff's Reply to
Defendant's Response (Docket No. 7), Defendant's Motion to Dismiss
(Docket No. 3), and for the reasons set forth in the accompanying
Memorandum, IT IS HEREBY ORDERED that:
(1) Plaintiff's Motion to Remand is GRANTED; (2)
Plaintiff's Motion for Attorney's Fees is DENIED; and
(3) Defendant's Motion to Dismiss is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Clerk of Court REMAND this case to the
Court of Common Pleas of Philadelphia County.