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WILLIS v. CITY OF PHILADELPHIA

United States District Court, E.D. Pennsylvania


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 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 Page 8 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 Page 9 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 of § Page 10 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.

  ORDER Page 11

  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.


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