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Vigilante v. Statharos

February 16, 2009

THEODORE J. VIGILANTE, PLAINTIFF,
v.
STEVEN STATHAROS AND PATRICK BRONTE, DEFENDANTS.



The opinion of the court was delivered by: Pollak, J.

OPINION

Defendant Steven Statharos has filed a Motion for Reconsideration (Docket No. 9) of a preliminary injunction entered by the Philadelphia Court of Common Pleas on July 1, 2008, prior to the removal of plaintiff's lawsuit to this court. Statharos's motion is ripe for review.

I. Background

On the basis of the several pleadings on file, the following facts appear not to be in dispute:

In April of 2008, plaintiff Theodore Vigilante, a resident of New Jersey, brought suit in the Philadelphia Court of Common Pleas against Statharos, a resident of New York, and defendant Patrick Bronte, a resident of New Zealand, alleging various tort claims and a trademark claim. Pl.'s Amended Complaint; Def. Statharos's Answer ¶¶ 1 -2. Vigilante is an attorney practicing in southeast Pennsylvania. Compl. ¶¶ 8 - 10. Vigilante complains that he authorized Statharos to obtain, on his behalf, email and internet website addresses useful to promoting Vigilante's law practice. Id. ¶¶ 15 - 16. Instead of doing as directed, Statharos allegedly misused the addresses to benefit a competitor attorney in southeast Pennsylvania, and then transferred control of the addresses to his friend, defendant Bronte. Id. ¶¶ 24 - 29. Vigilante contends that he launched an expensive advertising campaign for his law practice that included the website and email addresses, only to discover that these addresses did not operate as expected and were not within his control. Id. ¶¶ 20 - 21, 34.

Starting in late April 2008, Vigilante sent his complaint and subsequent filings to Statharos and Bronte by mail at addresses in New York and New Zealand, respectively. Def.'s Mem. in Support of Reconsideration at ¶¶ 4-15. In support of his motion for reconsideration, Statharos attests that he never received any of the mailings, that service was faulty, and that he only learned of the lawsuit via an electronic message from Bronte on June 26, 2008. Def.'s Motion at Ex. E (Statharos affidavit).

After filing his original and an amended complaint, Vigilante sought a preliminary injunction directing the defendants to surrender control of the disputed addresses. Pl.'s Response (Docket No. 18) at 3. Notice of the injunction hearing was issued to the defendants on May 16, 2008. Def.'s Motion at Ex. B (show cause order). Statharos attests that he did not receive notice of the injunction hearing. Id. at Ex. E (Statharos affidavit). The injunction hearing was conducted ex parte after Vigilante offered in-court testimony that he attempted to serve both defendants under the Pennsylvania rules. Def.'s Reply at Ex. A. The requested injunction was granted by Common Pleas Judge Gary F. DiVito on July 1, 2008. Def.'s Motion at Ex. D (order of Judge DiVito). To date, both defendants have complied with the injunction. Def.'s Motion at Ex. E (Statharos affidavit).

Statharos asserts that, on July 18, he filed a motion for reconsideration of the injunction in the Court of Common Pleas. Def.'s Reply at 2. Statharos removed the lawsuit to this court on July 21 on diversity grounds. Id. On August 12, 2008, Statharos filed the current motion for reconsideration of the injunction.*fn1 Vigilante's motion to remand, filed on July 23, was denied by this court on September 10, 2008.

II. Analysis

A. Timing of the Motion

The procedures concerning removal are clear, as is the impact of removal on state court injunctions. What remains murky are the procedures available for challenging state court equitable relief once a lawsuit is properly in federal court. Removal is complete, and a state court can proceed no farther, once a defendant has filed notice of removal with the federal district court and furnished notice to the state court and all adverse parties. 28 U.S.C. § 1446(d). Following removal by a defendant, an injunction obtained in state court "shall remain in full force and effect until dissolved or modified by the district court." 28 U.S.C. § 1450.

In order to challenge the injunction entered by Judge DiVito on July 1, Statharos has, as noted above, utilized as a procedural vehicle a "Motion for Reconsideration." Rule 7.1(g) of the Local Rules of Civil Procedure requires that motions for reconsideration "shall be served and filed within ten (10) days after the entry of the judgment, order, or decree concerned." The ten-day period only comprises "business days." Rule 7.1, Comment 6(a). The difficulty with application of this rule to a removal situation is that the state-court decree may have been entered a number of days or even weeks prior to the lawsuit properly coming into federal court. The rule does not specify whether, when the "judgment, order, or decree" sought to be reconsidered has emanated from a state court, the date of "entry" of the "judgment, order, or decree" is the date of filing in the state court or the date of removal to federal court.

Grounds exist for a federal district court to review a motion to dissolve a preliminary injunction apart from the procedural rules governing a motion for reconsideration. 28 U.S.C. § 1450 keeps an injunction in place "until dissolved or modified by the district court." In Resolution Trust Co. v. Nernberg, 3 F.3d 62, 68 (3d Cir. 1993), the Third Circuit formulated and adopted the following "supervisory rule":

In all cases removed to the district court after judgment has been entered by a state court, the parties may, within thirty days of the date the case is docketed in the district court, file motions to alter, modify, or open the judgment. After briefing or argument as it deems advisable, ...


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