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Donato-Cook v. State Farm Fire & Casualty Co.

July 20, 2009

GLORIA DONATO-COOK AND THOMAS COOK, PLAINTIFFS,
v.
STATE FARM FIRE & CASUALTY COMPANY, DEFENDANT.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court is Plaintiffs Gloria Donato-Cook and Thomas Cook's Motion to Remand (Doc. 8) this action to the Lackawanna County Court of Common Pleas pursuant to 28 U.S.C. § 1447(c). For the reasons stated below, the Court will grant Plaintiffs' motion.

BACKGROUND

The facts as alleged in Plaintiffs' Complaint are as follows. Plaintiffs are residents of Pennsylvania and Defendant State Farm Fire and Casualty Company ("State Farm") has its principal place of business in Illinois. (Compl. ¶¶ 1-2, Doc. 1, Ex. A.) Plaintiffs own a home at 639 Fairview Road, Clarks Summit, Pennsylvania, which they insured with a homeowner's policy through State Farm. (Id. ¶¶ 3, 5.) On May 8, 2006, the home was damaged in a fire. (Id. ¶ 8.) Defendants notified State Farm of the losses and made claims for payment under their homeowner's policy for real property damage, personal property damage, and living expenses. (Id. ¶¶ 9, 11, 14-16.) State Farm paid Plaintiffs less than the amounts they requested and, in April of 2007, notified Plaintiffs that it considered Plaintiffs' claims to have been paid in full in October of 2006. (Id. ¶¶ 14-17.) In May of 2007, State Farm made one more payment to Plaintiffs, but since that time Plaintiffs have not received a certificate of occupancy for their home and have incurred $144,403.01 in additional expenses and losses. (Id. ¶¶ 19-20, 33.)

On April 24, 2007, Plaintiffs filed a writ of summons in the Lackawanna County Court of Common Pleas pursuant to PA. R. CIV. P. 1007 naming State Farm and John Ryan ("Ryan"), a non-diverse Pennsylvania insurance agent, as defendants. (Id. ¶ 21.) On May 9, 2007, State Farm filed a praecipe pursuant to PA. R. CIV. P. 1037(a) to compel Plaintiffs to file a complaint. (Compl. ¶ 22.) This praecipe was stayed on September 19, 2007. (Id. ¶ 26.)

On March 9, 2009, Plaintiffs filed a complaint in the Lackawanna County Court of Common Pleas seeking $144,403.01 in damages from State Farm. (Mot. to Remand ¶ 3, Doc. 8; Compl. ¶¶ 19, 33.) (hereinafter "Mot.") On March 31, 2009, State Farm filed a notice of removal pursuant to 28 U.S.C. § 1446(b). (Mot. ¶ 4.) On April 29, 2009, Plaintiffs filed the current motion to remand the action to the Lackawanna County Court of Common Pleas. (Doc. 8) This motion is fully briefed and is ripe for disposition.

LEGAL STANDARD

The burden to establish subject matter jurisdiction in a removal case founded on diversity jurisdiction under 28 U.S.C. § 1332 is on the party seeking removal. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir. 2005) (citing Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004)). "[R]emoval statutes are to be strictly construed against removal and all doubts resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

DISCUSSION

I. The Thirty-Day Removal Period of 28 U.S.C. § 1446(b)

Plaintiffs first argue that the present case should be remanded because State Farm's notice of removal was filed more than thirty days after it received an initial pleading or documents indicating that the action was removable. (Mot. ¶ 5; Pls.' Br. 2-4.) The federal removal statute states, in relevant part, that:

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 ...


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