The opinion of the court was delivered by: Rufe, J.
Before the Court is a Motion for Partial Dismissal by Defendants Trustees of the University of Pennsylvania ("UPenn"), James Bean, and Bill Chenoweth [doc. no. 3]. Before the Court may decide this motion, it must satisfy itself that it has subject matter jurisdiction over this case.*fn1 Because this Court concludes it does not have subject matter jurisdiction, it will remand this case to state court*fn2 and dismiss the pending motion as moot.
On June 24, 2010, Defendants UGL UNICCO, Ed Andrews, Sal Ruggiero,
UPenn, Bean, and Chenoweth removed this matter from the Philadelphia
County Court of Common Pleas on the grounds that Plaintiff Gerald
McDonough's Second Amended Complaint provides this Court
with subject matter jurisdiction pursuant to 28 U.S.C. §
1331.*fn3 The Second Amended Complaint added new
defendants as well as federal claims under the Family and Medical
Leave Act ("FMLA").*fn4 Plaintiff's First Amended
Complaint had alleged exclusively state claims*fn5 and
Defendants did not seek to remove it to federal court. When Defendants
removed the Second Amended Complaint, Plaintiff did not move for
remand. Defendants UPenn, Bean, and Chenoweth then filed a Motion for
Partial Dismissal, seeking to dismiss one of the state claims against
them.*fn6 Plaintiff's Response in Opposition, which
attached the state court docket report as an appendix,*fn7
informed this Court that the state court had never granted
Plaintiff's motion for leave to file the Second Amended Complaint
before Defendants removed it.*fn8 Defendants did not
contest, much less address, that contention in their Reply.
Upon review of the state court docket, the Court finds that Plaintiff is correct. Plaintiff filed his original complaint in the Court of Common Pleas of Philadelphia County on August 4, 2009, stating claims for wrongful interference with an employment relationship and intentional infliction of emotional distress against Defendants UGL UNICCO, Ruggiero, and Andrews.*fn9
After those Defendants filed their Preliminary Objections on September 3, 2009,*fn10 Plaintiff filed his First Amended Complaint on September 22, 2009.*fn11 Months later, on May 25, 2010, after the time period for amending as of right pursuant to Rule 1028(c)(1) of the Pennsylvania Rules of Civil Procedure had passed, Plaintiff sought leave to file a Second Amended Complaint pursuant to Rule 1033.*fn12 Plaintiff's Second Amended Complaint proposed to add Defendants UPenn, Bean, and Chenoweth, as well as to add new claims for wrongful termination and federal FMLA violations.*fn13 On June 2, 2010, Defendants UGL UNICCO, Ruggiero, and Andrews filed a response in opposition to Plaintiff's motion to amend in state court, asserting inter alia that the proposed federal claims were time barred.*fn14 The state court did not rule on Plaintiff's motion for leave to amend prior to Defendants' removal of the case to this Court on June 24, 2010.*fn15
Because the First Amended Complaint did not state federal claims,*fn16 and the state court never granted leave to file the Second Amended Complaint including federal claims, the Court must address whether, under these circumstances, removal prior to receipt of permission to amend deprives this Court of subject matter jurisdiction over the case. This Court concludes it does. It must therefore remand this case to state court for further proceedings.*fn17
Though some courts have held that a complaint becomes removable upon mere notice of a motion for leave to amend that, if granted, would provide federal subject matter jurisdiction over the matter, this is the minority view.*fn18 While the Third Circuit has not yet addressed this question, this Court finds the better rule (and the majority view) is that an amended complaint that would provide a basis for subject matter jurisdiction does not become removable until the motion to amend is granted and the amended complaint becomes effective.*fn19 Under 28 U.S.C. § 1446(b), where a case is not initially removable, a defendant may timely remove only after receiving "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"*fn20 -not one that may become removable. And a proposed amended complaint that on its face would provide a basis for subject matter jurisdiction does not become removable until it becomes the operative complaint in the case. Where leave to amend is required, an amended complaint cannot be operative until that leave has been granted. Simply put, in federal court, there is simply no such thing as "contingent" subject matter jurisdiction.*fn21
Thus where the First Amended Complaint asserts only state claims, there is no diversity jurisdiction, Plaintiff needs permission to file the Second Amended Complaint, Defendants have opposed the motion for leave to amend on the grounds that the federal claim was time-barred, and the state court never granted leave to amend, the case is not yet removable and the Court lacks subject matter jurisdiction. The Court notes that restraint is particularly important in this case where pro forma approval of Plaintiff's motion to amend cannot be assumed given Defendants' opposition to the very claims that would give rise to federal jurisdiction and for reasons that could very well lead to denial of Plaintiff's motion. Despite Rule 1033's permissive approach to amending to add new claims, state courts must deny such motions where the new claims are time-barred.*fn22 Unless and until the state court grants Plaintiff's motion for leave to amend and that amended complaint becomes effective, the operative complaint in this matter-the First Amended Complaint-simply does not state a federal claim or otherwise give rise to federal jurisdiction.
Accordingly, this Court finds it lacks subject matter jurisdiction over this matter and this matter will be remanded to state ...