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Penn Patio Sunrooms, Inc. v. Ohio Casualty Insurance Co.

March 31, 2008

PENN PATIO SUNROOMS, INC., PLAINTIFF,
v.
OHIO CASUALTY INSURANCE COMPANY AND OHIO CASUALTY GROUP, DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

Presently before the Court is Plaintiff Penn Patio Sunrooms, Inc.'s motion to remand this case to the Court of Common Pleas of Luzerne County. (Doc. 5.) Because Defendants' motion to remand is outside of the one (1) year limitation for removal in diversity cases, the Court will grant Plaintiff's motion and remand the case to the Court of Common Pleas of Luzerne County.

LEGAL STANDARD

On a motion to remand, the removing party bears the burden of establishing the propriety of removal. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991). Furthermore, "removal statutes are to be strictly construed against removal and all doubts resolved in favor of remand." Id.

BACKGROUND

On January 27, 2006, Plaintiff commenced this action in the Court of Common Pleas of Luzern County by filing a Writ of Summons. On January 7, 2008, Plaintiff filed its Complaint in state court. (Doc. 1 Ex. 1.) Defendants timely filed a notice of removal to the Middle District of Pennsylvania on January 18, 2008 pursuant to 28 U.S.C. § 1446(b).

28 U.S.C. § 1447(c). The motion is fully briefed and ripe for disposition.

DISCUSSION

Plaintiff advances two arguments regarding the propriety of remand in this case. First, Plaintiff argues that Defendants did not timely file their Notice of Removal within thirty (30) days of the "amended pleading" or other papers. Second, Plaintiff argues that even if Defendants did timely file within thirty (30) days, they are barred from federal court by the one (1) year exception to removal in diversity cases.

I. Filing Within Thirty (30) Days of Initial or Amended Pleading

The first issue is whether the Defendants timely filed their Notice of Removal within thirty (30) days of the "initial" or "amended" pleading or other papers. The federal removal statute provides, in relevant part, that

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b) (emphasis added).

Plaintiff filed a Writ of Summons on January 27, 2006. 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. ยง 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.'" McFarland v. Muse,No. 3:05-CV-1155, 2005 WL 2133672, at *1 (M.D. Pa. Sept. 1, 2005) (Caputo, J.) (quoting Gervel v. L & J Talent, 805 F. Supp. 308, 308 (E.D. Pa. 1992)). In Gervel, the court held that the Writ of Summons did not amount to such an initial pleading, as it indicated only the court involved, the parties to the action, and a notification of suit. Id. "'[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.'" Id. ...


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