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Seville v. Stowitzky

March 17, 2009

DOUGLAS SEVILLE, PLAINTIFF
v.
PAUL J. STOWITZKY, WARDEN OF S.R.F.C. MERCER, ET AL., DEFENDANTS



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

MEMORANDUM

Before the court are plaintiff's motion to remand and defendants' response. See Docket Nos. 7, 11. According to the complaint, plaintiff Douglas Seville is currently incarcerated at State Correctional Facility Mercer in Mercer, PA. See Docket No. 1 at 7. Mr. Seville filed his original complaint pro se in the Philadelphia Court of Common Pleas on November 5, 2007. That court granted plaintiff leave to proceed in forma pauperis on February 21, 2008. Defendants filed their answer to plaintiff's complaint on February 25, 2008. On July 15, 2008, defendants filed their notice of removal with this court. See Docket No. 1. For the reasons that follow, this court will grant plaintiff's motion to remand. An appropriate order follows.

The Removal Statutes, 28 U.S.C. §§ 1441-1452, govern the removal of a state court case to a federal district court. Defendants removed the instant matter to this court in compliance with the substantive requirements of 28 U.S.C. § 1441*fn1 and the procedural requirements of 28 U.S.C. § 1446(a).*fn2

Under 28 U.S.C. § 1446(b), a motion for removal must be timely filed. § 1446(b) provides, in pertinent 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 based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

Defendants were thus required to file their notice of removal within thirty days of being served with plaintiff's complaint.

Defendants answered plaintiff's complaint on February 25, 2008. Defendants did not file their notice of removal until more than four months later. Defendants state in their brief that "as a result of inter-agency miscommunication, [defendants] indeed filed for removal beyond the statutory 30 day period." Defendants therefore did not comply with 28 U.S.C. § 1446(b).

The timeliness requirements for plaintiff's motion to remand are governed by 28 U.S.C. § 1447(c), which provides, in pertinent part:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).

This court's electronic filing system assigned plaintiff's motion to remand a "date filed" of August 26, 2008, 42 days after defendants had filed their removal notice.

There is no dispute that defendants' notice of removal was untimely filed. Untimely filing warrants remand, and defendants have given no compelling explanation for their late filing. The issue for this court to resolve is whether Mr. Seville waived this court's authority to remand his case.

"I]t is well-established that an untimely filed removal notice" is a "non-jurisdictional defect" that is "waived if not objected to within the thirty-day window afforded by 28 U.S.C. § 1447(c)." Calloway v. Boro of Glassboro Dept. of Police, 89 F. Supp. 2d 543, 549 n. 13 (D.N.J. 2000) (citing Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989)).

In this Circuit, "[w]e have become accustomed to dealing differently, and more liberally, with litigants who appear Pro se." Cervase v. Office of Federal Register, 580 F.2d 1166, 1179 (3d Cir. 1978) (Garth, J., dissenting) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Under Estelle, it is settled law that pro se complaints are to be "liberally construed" and "held to 'less stringent standards than formal pleadings drafted by lawyers.'" 429 U.S. at 106 (citations omitted).

In Houston v. Lack, the Supreme Court held that an incarcerated pro se litigant had timely filed a notice of appeal when that notice was delivered to prison officials three days before the 30-day filing deadline, even though the notice itself was ultimately filed with the court later than the formal deadline. 487 U.S. 266 (1988). Houston noted that although Federal Rules of Appellate Procedure 3(a) and 4(a)(1) "specify that the notice should be filed 'with the clerk of the district court'" within thirty days, that specification does not resolve the issue of "whether the moment of 'filing' occurs when the notice is delivered to the prison authorities or at some later juncture in its processing." Id. at 272-73 (citations omitted). Explaining its holding that filing ...


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