United States District Court, W.D. Pennsylvania
November 9, 2005.
WILLIAM S. KARN, Plaintiff,
QUICK & REILLY INCORPORATED and FLEET BOSTON FINANCIAL COMPANY, Defendants.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
This action was originally filed in the Court of Common Pleas
of Allegheny County, Pennsylvania, Civil Division, in February
2004. The Class Action Complaint alleged "a termination of a
bailment contract by defendant with failure by defendant to
restore to plaintiff bailor the personal property which was held
by defendant bailee." Complaint, at ¶ 3.
On or about September 23, 2005, Plaintiff requested leave of
Court to amend his Class Action Complaint to include, inter
alia, two counts which purport to set forth causes of action
under the Fifth and Fourteenth Amendments of the Constitution of
the United States. By Order of Court dated September 23, 2005,
the Honorable R. Stanton Wettick, granted Plaintiff's Motion for
Leave to Amend.
On October 18, 2005, Defendants timely filed a Notice of
Removal pursuant to 28 U.S.C. § 1441(a), in which they allege
that this case is removable because the Amended Class Action
Complaint alleges causes of action against Defendants that are
within the original jurisdiction conferred on the District Courts
of the United States by 28 U.S.C. § 1331.
On October 20, 2005, Plaintiff filed with this Court "Objection
to Notice of Removal," in which he argues, inter alia, that the
word "original" should not be read as "exclusive," that "the federal constitutional issues presented in
the state court complaint are that some small (but not total or
substantial) remedial effort was effected to the plaintiff by a
defendant," and that "it seems premature to involve the federal
court. . . ." Pl's Objection. The Court shall deem Plaintiff's
Objections as a Motion to Remand pursuant to
28 U.S.C. § 1441(c).*fn1 On November 8, 2005, Defendants filed a Reply
Brief in opposition to Plaintiff's Objection to Notice of Removal
(Document No. 3).
It is not disputed that both Pennsylvania state courts and
federal courts have concurrent jurisdiction over the federal
claims alleged in the Amended Class Action Complaint. However,
the general rule is that "absent an express provision to the
contrary, the removal right should be respected when there is
concurrent jurisdiction." Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction 3d § 3739; see Bradshaw v.
General Motors Corp., 805 F.2d 110, 112-13 (3d Cir. 1986)
(section 1981 claims are removable because state and federal
courts have concurrent jurisdiction).
Because the Amended Class Action Complaint includes two counts
which purport to set forth causes of action under the Fifth and
Fourteenth Amendments of the Constitution of the United States,
Plaintiff's "Objection to Notice of Removal," which has been
treated as a Motion to Remand, is DENIED. So ORDERED.
© 1992-2005 VersusLaw Inc.