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Violet Foster, As the Administratix of the Estate of Allen B. v. City of Philadelphia

October 25, 2011


The opinion of the court was delivered by: Anita B. Brody, J.



On June 14, 2011, Plaintiff Violet Foster, as the administratix of the estate of Allen Wimberly, Jr., filed this action in the Philadelphia County Court of Common Pleas on behalf of Wimberly's beneficiaries against Dr. Joseph Scogna, the Frankford Hospital of the City of Philadelphia, and the Frankford Hospital Torresdale Campus (collectively, "Medical Defendants"). All parties are residents of Pennsylvania, and the medical malpractice complaint only asserts state law claims. On June 22, 2011, Scogna became a third-party plaintiff when he filed a joinder complaint against the City of Philadelphia and a large group of employees, medical workers, and affiliates of the Philadelphia Industrial Correctional Center ("PICC") and the Philadelphia Prison System ("PPS") (collectively, "Third-Party Defendants"). *fn1 Scogna claims that Third-Party Defendants violated Wimberly's rights under the Eighth and Fourteenth Amendments to the United States Constitution and the decedent Wimberly's general civil rights under 42 U.S.C. § 1983. *fn2 On the basis of Scogna's federal claims, Third-Party Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441. In response, Foster filed a Motion to Remand to the Philadelphia County Court of Common Pleas pursuant to 28 U.S.C. § 1447.


Allen Wimberly, Jr. was an adult prisoner incarcerated at PICC, and Jonathan Jenkins was his cellmate. On March 16, 2009, Jenkins physically attacked Wimberly in their cell. Both men were known to suffer from mental illness and Jenkins had a record of violence against other prisoners. Joinder Compl. ¶¶ 51-52. Although Foster's complaint does not indicate what happened immediately following the attack, Scogna alleges that prison personnel took Wimberly to the prison infirmary to stitch up his wounds but did not bring him to Frankford Hospital's Emergency Department for sixteen hours. Def. Resp. ¶ 4.

Parties dispute what took place upon Wimberly's arrival at the hospital. According to Scogna, he performed emergency surgery (a right frontal parietal craniectomy) "[s]oon after the decedent presented to Frankford Hospital." Id. According to Foster, however, Wimberly did not receive the emergency surgery until four hours after his arrival. Foster claims Wimberly received a CT scan of his brain around 2:00 AM that revealed a large subdural hematoma. Pl.'s Compl. 5. Yet instead of performing surgery, Scogna and the rest of the medical personnel waited approximately two and a half hours until Wimberly became unresponsive and then performed a follow-up CT scan. Id. The scan indicated that the subdural hematoma had grown significantly, and at 6:00 AM, they performed emergency surgery. On March 22, 2009, Wimberly passed away due to his brain injury. Id. at 6.


Third-Party Defendants removed Foster's state court complaint to federal court under federal question jurisdiction. Foster seeks to remand to state court because she argues that Third-Party Defendants are not permitted to remove a case under 28 U.S.C. § 1441.

A defendant may remove a civil action from state court to federal court if the latter has original jurisdiction. 28 U.S.C. § 1441(a). Original jurisdiction can be achieved under 1) Federal Question Jurisdiction (28 U.S.C. § 1331) or (2) Diversity Jurisdiction (28 U.S.C. § 1332). Here, all parties are citizens of Pennsylvania and therefore diversity jurisdiction is not an issue. The Third-Party Defendants, therefore, used Scogna's § 1983 allegation in his joinder complaint as their basis for federal question jurisdiction. Yet Foster points out that her initial state court complaint did not provide any basis for federal question jurisdiction and thus the three originally named Medical Defendants could not -- and did not -- file the notice of removal. Motion to Remand ¶ 4.

Under 28 U.S.C. § 1441, the two relevant subsections state:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

The Third Circuit Court of Appeals has not directly ruled on third-party defendant removal under 28 U.S.C. § 1441. Reviewing the District of New Jersey's award of attorney fees stemming from a dispute over remand, the Third Circuit noted that it "ha[d] not yet decided . . . whether a third-party defendant may properly remove under § 1441(c)." Roxbury Condo. Ass'n, Inc. v. Anthony S. Cupo Agency, 316 F.2d 224, 228 (3d Cir. 2003). In Cook v. Wikler, the Third Circuit held that it did not have jurisdiction to review a district court's timely order remanding a case for improper third-party removal, but it added in a footnote that the Circuit has never directly addressed the question. 320 F.3d 431, 437 n.6 (3d Cir. 2003).

The Sixth Circuit Court of Appeals has ruled that "[t]he majority view is that third-party defendants are not 'defendants' for purposes of § 1441(a)." *fn4 First Nat'l Bank of Pulaski v. Curry, 301 F.3d 456, 461 (6th Cir. 2002) (citations omitted). See also, Spectator Mgmt. Group v. Brown, 131 F.3d 120, 125-26 (3d Cir. 1997) ("In Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941), the Supreme Court noted that the legislative history and language of the removal statute shows that Congress intended to limit removal."); Lewis v. Windsor Door Co., 926 F.2d 729, 733 (8th Cir. 1991) (holding that third-party defendants were not permitted to remove a case from state to federal court); Thomas v. Shelton, 740 F.2d 478, 488 (7th Cir. 1984) ("[I]n the broad run of third-party cases . . . the third-party defendant cannot remove the case under section 1441(c) . . . ."); Addressing subsection (a), Judge Thomas O'Neill of this court recently ruled: '"An overwhelming majority of federal courts . . . have held that third party defendants may not remove state actions to federal court pursuant to 28 U.S.C. ยง 1441(a) ...

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