United States District Court, M.D. Pennsylvania
September 1, 2005.
THOMAS McFARLAND and THERESA McFARLAND, his wife, Plaintiffs,
MOHAMUD MUSE, Individually and t/d/b/a MUSE TRUCKING and ABDIKADIR LIBAN, Defendants.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Plaintiff filed a Writ of Summons in the Court of Common Pleas
of Luzerne County on April 28, 2005 (Doc. 1, Ex. A.) Defendants
removed the case to this Court, asserting that federal
jurisdiction existed based on diversity of citizenship and an
amount in controversy in excess of $75,000.00. The former is
alleged in the Notice of Removal, as is the latter. The Writ is
silent as to diversity and an amount in controversy, and
Plaintiff never filed a complaint. The Defendants argue that
statements by Plaintiff in interrogatories in aid of preparation
of the complaint and a letter from Plaintiffs' counsel describing
the Plaintiffs' injuries, establish the amount in controversy
Defendants removed to federal court based on the Writ of
Summons. However, a Writ of Summons, which is used in
Pennsylvania state courts to initiate an action, is not an
"initial pleading" removable to federal court under
28 U.S.C. § 1446(b).
Section 1446(b) provides, in relevant part: The notice of removal of a civil action or proceeding
shall 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
28 U.S.C. § 1446(b).
"At a minimum, there must have been an `initial pleading
setting forth the claim for relief' received by the defendant
before a defendant may invoke this provision." Gervel v. L & J
Talent, 805 F. Supp. 308, 308 (E.D. Pa. 1992).
"[T]he Federal Rules and the removal statute presuppose that an
initial pleading setting forth a claim for relief has been filed
. . . Without such an initial pleading, the removal of a Writ of
Summons alone is premature since [the federal court] cannot have
subject matter jurisdiction." Gervel, 805 F. Supp. at 309
(citing Cf. Easton Area Joint Sewer Authority v. Bushkill-Lower
Lehigh Joint Sewer Authority, 517 F. Supp. 583 (E.D. Pa. 1981)).
See also Craig v. Lake Asbestos of Quebec, Ltd.,
541 F. Supp. 182 (E.D. Pa. 1982); Rowe v. Marder, 750 F. Supp. 718 (W.D. Pa.
1990), aff'd 935 F.2d 1282 (3d Cir. 1991); Cf. Mitchell v.
Joseph's Supermarkets, Inc., 712 F. Supp. 59, 64 (W.D. Pa.
Moreover, letters from counsel cannot serve as a basis to
establish jurisdiction. See, MP III Holdings v. Hartford Cas.
Ins. Co., No. 05-1569, 2005 U.S. Dist. LEXIS 10654, *13-14 (E.D.
Pa. 2005). The Writ of Summons does not set "forth the claim for
relief upon which such action is based." 28 U.S.C. § 1446(b).
Accordingly, the Writ of Summons is not an initial pleading
subject to removal under § 1446(c), and therefore the case will
be remanded to the Court of Common Pleas of Luzerne County.
An appropriate Order follows. ORDER
NOW, this 1st day of September, 2005, upon consideration of
the Plaintiffs' Motion for Remand (Doc. 4), and for the reasons
set forth in the foregoing Memorandum, IT IS HEREBY ORDERED
that Plaintiffs' Motion for Remand (Doc. 4) is GRANTED, and
this case is REMANDED to the Court of Common Pleas of Luzerne
The Clerk of Court is directed to close this case.
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