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Anastasios Papadopoulous v. Peter G. Mylonas

September 6, 2011

ANASTASIOS PAPADOPOULOUS, PLAINTIFF,
v.
PETER G. MYLONAS, ET AL., DEFENDANTS.



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

OPINION

I. INTRODUCTION

This case involves a claim of legal malpractice. It was originally filed by Plaintiff Anastasios Papdopolous in state court. On June 27, 2011, Defendants removed the case to this Court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. No. 1.) Thereafter, Plaintiff filed a Motion to Remand and Request that the Court consider the Motion despite it being untimely filed. (Doc. No. 11.) Plaintiff also filed a Second Motion to Remand requesting that the Court rule on the outstanding Motion for Remand prior to determining the citizenship of Plaintiff. (Doc. No. 13.) Defendants are citizens of Pennsylvania and contend that Plaintiff is a citizen of Greece. This diversity would support removal because there would be diversity of citizenship between Plaintiff and Defendants. Plaintiff's Motions to Remand are now before the Court for disposition.

In the Motion to Remand, Plaintiff requests that the Court remand the case based on the "forum defendant rule." The forum defendant rule is derived from 28 U.S.C. § 1441(b) and provides that where the basis for removal is diversity of citizenship jurisdiction, a defendant may not remove the case from state to federal court if the defendant is a citizen of the state in which the action is brought. Plaintiff requests that despite the Motion to Remand being untimely filed, the Court still consider the Motion because "excusable neglect" under Federal Rule of Civil Procedure 6 allows a court to decide a motion untimely filed. In the Second Motion to Remand, Plaintiff again requests the Court to remand the case to state court and to delay ruling on the citizenship of Plaintiff until it decides whether the "forum defendant rule" precludes removal here.

For reasons that follow, the Court will grant the Motion to Remand (Doc. No. 11), and deny the request made in the Second Motion to Remand (Doc. No. 13) to delay a decision on the citizenship of Plaintiff. Accordingly, the case will be remanded to the Court of Common Pleas of Philadelphia County.

II. BACKGROUND

Plaintiff Anastasios Papdopolous is a Greek citizen*fn1 residing in King of Prussia, Pennsylvania. (Am. Compl., Doc. No. 10 ¶ 2.) Plaintiff was an officer, director, and stockholder of Corinthian Marble and Tile, Inc. ("Corinthian"). (Id. ¶¶ 4-6.) Plaintiff, Corinthian, and the remaining shareholders retained Defendant Peter Mylonas to draft a Stockholders' Agreement (Doc. No. 3, Ex. 2.) ("the Agreement"). (Id. ¶¶ 11-12, 15-16.)

In the Amended Complaint, Plaintiff alleges that at some point after the Agreement was executed, Defendant Mylonas transferred Corinthian stock of two other shareholders without his consent. Plaintiff claims that this stock transfer violated the terms of the Agreement, which provides, in pertinent part as follows:

No stockholder shall sell, assign, mortgage, pledge or otherwise transfer or encumber the shares of the stock of the COMPANY now owned or hereafter acquired by him without the prior written UNANIMOUS consent of all the other STOCKHOLDERS. (Id. ¶ 16.) As a result of the stock transfer, Plaintiff alleges he "was constructively and explicitly removed from his role as director and secretary of the corporation and his interest and control of the corporation was extinguished." (Id. ¶ 31.)

On March 21, 2011, Plaintiff filed a Writ of Summons in the Philadelphia County Court of Common Pleas. On May 19, 2011, Plaintiff filed the Complaint in state court, alleging one count of professional negligence against Defendant Mylonas and his law firm Peter G. Mylonas, P.C. As noted, on June 27, 2011, Defendants filed the Notice of Removal to this Court pursuant to 28 U.S.C. § 1441. (Doc. No. 1.) Defendants assert diversity of citizenship jurisdiction, 28 U.S.C. § 1332, as the basis for the Court's subject matter jurisdiction. (Id. ¶ 5.)

On July 1, 2011, Defendants filed a Motion to Dismiss arguing that the Complaint failed to state a claim upon which relief can be granted. (Doc. No. 3.) On July 22, 2011, Plaintiff filed an Amended Complaint (Doc. No. 4),*fn2 a Response in Opposition to the Motion to Dismiss (Doc. No. 5), and requested leave of court to file a revised Amended Complaint and additional exhibits. On July 25, 2011, the Court denied the Motion to Dismiss as moot in light of the filing of the Amended Complaint. (Doc. No. 6.) That same day, the Court granted Plaintiff's Request for Leave to File of Record the revised Amended Complaint and additional exhibits (Doc. No. 7), which were filed on August 1, 2011. (Doc. No. 10.)

Because the citizenship of Plaintiff was not evident in the Amended Complaint, the Court ordered that the parties appear for a hearing to determine the citizenship of Plaintiff and the subject matter jurisdiction of the Court. (Doc. No. 8.) On August 2, 2011, the Court held a hearing. At the hearing, Defendant presented evidence that Plaintiff is a citizen of Greece. Plaintiff failed to present any evidence to the contrary. Also at the hearing, Plaintiff made an oral Motion to Remand arguing that the "forum defendant rule" of § 1441(b) prohibits removal in this case because Defendants are citizens of the forum state, which is Pennsylvania, the state in which Plaintiff filed the Complaint. Under these circumstances, Defendants would be barred from removing the case based on diversity of citizenship jurisdiction. On August 3, 2011, Plaintiff filed a written Motion to Remand. (Doc. No. 11.) One week later, Plaintiff filed a Second Motion to Remand requesting that the Court decide the outstanding Motion to Remand prior to determining the citizenship of Plaintiff. (Doc. No. 13.)

On August 17, 2011, Defendants filed a Response in Opposition to both Motions to Remand. (Doc. Nos. 14, 15.) Defendants assert that the "forum defendant rule" is procedural in nature and does not concern the subject matter jurisdiction of the Court. Therefore, according to Defendants, a Motion to Remand based on this rule must be raised by motion no later than 30 days after the filing of the Notice of Removal and may not be raised by the Court sua sponte.

Here, Plaintiff filed the Motion to Remand more than 30 days after the filing of the Notice of Removal. Thus, Defendants submit that the Court must deny the Motion to Remand as untimely. With respect to Plaintiff's request that the Court decide the Motion to Remand prior to determining the citizenship of the Plaintiff, Defendants assert that because the citizenship of Plaintiff is crucial to diversity of citizenship jurisdiction of the Court, the citizenship of Plaintiff must be initially determined.

The Court agrees with Defendant that it must determine the citizenship of Plaintiff to establish subject matter jurisdiction over this case. Accordingly, the Court will deny Plaintiff's request that the Court consider the Motion to Remand prior to making a finding on the citizenship of Plaintiff (Doc. No. 13). Further, the Court agrees with Defendant that the "forum defendant rule" is procedural in nature and does not concern the subject matter jurisdiction of the Court. Therefore, a Motion to Remand based on this rule should have been filed within 30 days after the filing of the Notice of Removal. Although the Motion ...


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