The opinion of the court was delivered by: Slomsky, J.
Before the Court is Defendants' Motion for Reconsideration of the September 6, 2011 Order Granting Plaintiff's Motion for Remand. (Doc. No. 19.) The Court has reviewed Defendants' Motion and supporting exhibits, Plaintiff's Response to Defendants' Motion for Reconsideration (Doc. No. 20), the Court Order dated September 6, 2011 granting the Motion to Remand (Doc. No. 18), and the Opinion accompanying the September 6, 2011 Order (Doc. No. 17). For reasons that follow, the Court will grant Defendants' Motion for Reconsideration, restore this case to the Court's docket, and direct the Clerk of Court to obtain the case file from the Court of Common Pleas of Philadelphia County.
This case involves a claim of legal malpractice. On May 19, 2011, Plaintiff Anastasios Papadopoulous filed his original Complaint in the Court of Common Pleas of Philadelphia County against Defendants Peter G. Mylonas, Esquire, and Peter G. Mylonas, P.C. 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 an untimely Motion to Remand and requested that the Court not deny the Motion for being filed untimely but to consider it on the merits. (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.*fn1 (Doc. No. 13.)
Plaintiff sought remand based on the "forum defendant rule." The forum defendant rule is codified in 28 U.S.C. § 1441(b), which provides that where the basis for removal is diversity of citizenship jurisdiction, a defendant may not remove the case from a state court to a federal court where the defendant is a citizen. A motion to remand must be filed within 30 days of removal. 28 U.S.C. 1447(c). Plaintiff did not file the motion within the 30-day time period. As noted, despite the Motion to Remand being untimely filed, Plaintiff asked the Court to extend the 30-day requirement because of "excusable neglect" under Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure. In the Second Motion to Remand, Plaintiff asked the Court again to remand the case to state court, and to delay ruling on the citizenship of Plaintiff until deciding whether the "forum defendant rule" precludes removal here.
Plaintiff Anastasios Papdopolous is a Greek citizen 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 Corinthian shareholders retained Defendant Peter Mylonas to draft a Stockholders' Agreement. (Doc. No. 3, Ex. 2) ("the Agreement"); (Doc. No. 10, ¶¶ 11-12, 15-16.)
In the Amended Complaint, Plaintiff alleges that at some point after the Agreement was executed, Defendant Mylonas transferred Corinthian stock to two other shareholders without his consent. Plaintiff claims that this stock transfer violated a restrictive covenant in 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 his initial Complaint in state court, alleging one count of professional negligence against Defendant Mylonas and his law firm Peter G. Mylonas, P.C. On June 27, 2011, Defendants filed the Notice of Removal to this Court pursuant to 28 U.S.C. § 1441. (Doc. No. 1.) Defendants asserted diversity of citizenship jurisdiction pursuant to 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 and a Response in Opposition to the Motion to Dismiss (Doc. No. 5). On July 25, 2011, the Motion to Dismiss was denied 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 the parties to 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, where Defendants presented evidence that Plaintiff is a citizen of Greece. Plaintiff failed to present any evidence to the contrary. At the hearing, Plaintiff also made the oral Motion to Remand, arguing for the first time that the "forum defendant rule" of 28 U.S.C. § 1441(b) prohibits removal to this Court sitting in the Eastern District of Pennsylvania 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 based on the "forum defendant rule." (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 Responses in Opposition to both Motions to Remand. (Doc. Nos. 14 & 15.) Defendants asserted 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 made by motion no later than 30 days after the filing of the Notice of Removal. In this case, the date of removal was June 27, 2011. Plaintiff first made the Motion to Remand at the hearing on August 2, 2011, more than 30 days after the filing of the Notice of Removal. On August 3, 2011, Plaintiff filed the written Motion to Remand. Thus, as Defendants have argued, the Motion to Remand was untimely filed. With respect to Plaintiff's request that the Court decide the Motion to Remand prior to determining the citizenship of Plaintiff, Defendants asserted that because the citizenship of Plaintiff is critical to the Court's diversity of citizenship jurisdiction, the citizenship of Plaintiff must be determined initially.
In the September 6, 2011 Opinion, this Court agreed with Defendants that it must determine the citizenship of Plaintiff to establish subject matter jurisdiction. Thus, the Court in effect denied Plaintiff's request that the Court consider the Motion to Remand prior to determining the citizenship of Plaintiff. Further, the Court agreed with Defendants that the "forum defendant rule" is procedural in nature and does not concern the subject matter jurisdiction of the Court. The Court ...