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Seville v. Stowitzky


March 17, 2009


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


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 is effective on delivery by the prisoner to a prison official, the Court gave a lengthy exposition of the challenges faced by incarcerated pro se litigants who are trying to meet filing deadlines:

The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped "filed" on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access-the prison authorities-and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.

Id. at 270-72. Houston demonstrates that "the Judiciary may, in certain unique situations, deem a jurisdictional requirement to have been met in specific contexts where strong policy concerns weigh in favor of doing so." Gutierrez v. Gonzales, 125 Fed. Appx. 406, 414 (3d Cir. 2005) (holding that a habeas petitioner had satisfied the "custody" requirement of 28 U.S.C. § 2241 even where the petitioner had already been removed from the United States).

Although plaintiff's motion to remand was marked "filed" by the Eastern District of Pennsylvania's electronic filing system on August 26, 2008, it was signed and dated on August 8, 2008.*fn3 August 8, 2008 was fewer than thirty days from the date defendants filed their notice of removal on July 15, 2008. If this court considers plaintiff's remand motion to have been made at the time of its signing, then that motion was timely. Even if this court were to treat August 8, 2008 not as a date of service but rather as a date of probable mailing, the motion would still have arrived well before the expiration of the thirty days plaintiff had to file.

Douglas Seville is incarcerated and appearing pro se. The same policy concerns that animated the Court in Houston v. Lack and Estelle v. Gamble apply with equal strength to the instant matter.*fn4 Like the Federal Appellate Rules of Procedure at issue in Houston, § 1447(c) does not specify when the moment of filing occurs. Moreover, the statute requires only that plaintiff's motion to remand "must be made" -- not filed -- "within 30 days after the filing of the notice of removal." 28 U.S.C. § 1447(c) (emphasis added).*fn5 Finally, this court takes note that defendants filed their removal notice egregiously late without any reasonable justification.

Thus, in consideration of Estelle's instructions that this court liberally construe pro se pleadings, Houston's observations regarding the filing difficulties faced by incarcerated pro se litigants, and the language of 28 U.S.C. § 1447(c), this court holds that plaintiff's motion to remand was timely made. Defendants' untimely removal notice is therefore grounds for remand.

Accompanying this memorandum is an order of remand.


AND NOW, this 17 day of March, 2009, upon review of defendants' notice of removal and plaintiff's motion to remand, it is hereby ORDERED that this case is REMANDED to the Philadelphia Court of Common Pleas.

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