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WILLIS v. CITY OF PHILADELPHIA

February 10, 2004.

MICHAEL WILLIS
v.
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 Page 2 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 this Court.

  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 Page 3 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 performed properly:
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 Page 4 Salisbury, No. 99-2931, 1999 U.S. Dist. LEXIS 14966, *1 (E.D. Pa. Sept. 21, 1999) (same).

  III. DISCUSSION

 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 Page 5 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 sufficient).

  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 Page 6 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 Page 7 noted, courts must strictly construe the removal statutes and resolve any questions in favor of ...


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