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Sacko v. Greyhound Lines, Inc.

United States District Court, Third Circuit

May 30, 2013

MAHADY SACKO, JR. Plaintiff,
v.
GREYHOUND LINES, INC. Defendant/Third Party Plaintiff,
v.
U.S. SECURITY ASSOCIATES, INC. Third Party Defendant.

MEMORANDUM

WILLIAM H. YOHN, District Judge.

On April 12, 2013, defendant Greyhound Lines, Inc. ("Greyhound") filed a notice of removal in the Eastern District of Pennsylvania, removing this case from the Court of Common Pleas of Philadelphia County. Presently before me is plaintiff Mahady Sacko, Jr.'s motion to remand. For the reasons stated below, Sacko's motion to remand will be denied.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The events underlying this lawsuit occurred on December 1, 2010, when an assailant allegedly slashed Sacko in the face with a knife while he waited in line to purchase a bus ticket at the Greyhound terminal located at 1001 Filbert Street in Philadelphia, Pennsylvania. While the facts of that day may be further explored in later proceedings, more pertinent to the motion currently before me is the procedural history of the case.

On November 27, 2012, Sacko filed a praecipe to issue a writ of summons in the Court of Common Pleas of Philadelphia County. (Pl.'s Mem. Law in Supp. Mot. to Remand to Phila. Ct. Com. Pl. [hereinafter "Pl.'s Mem."], Ex. A 4.) The writ was issued the same day and reissued on both January 9, 2013, and February 11, 2013. ( Id ., Ex. A 5-6.) Sacko served Greyhound with the writ of summons on February 19, 2013. ( Id ., Ex. A 6.) Sacko then filed his complaint with the Court of Common Pleas on March 28, 2013. ( Id ., Ex. A 9.)

Greyhound filed preliminary objections to the complaint on April 8, 2013. ( Id .) Two days later, on April 10, 2013, it filed a joinder complaint against U.S. Security Associates, Inc. ( Id ., Ex. A 10.) On April 12, 2013, fifty-two days after being served with the writ of summons and fifteen days after Sacko filed his complaint, Greyhound filed a notice of removal in the Eastern District of Pennsylvania. (Notice of Removal, ECF No. 1.) On April 15, 2013, Greyhound filed an amended notice of removal. (Am. Notice of Removal, ECF No. 2.) Sacko filed this motion to remand on April 26, 2013. (Mot. to Remand, ECF No. 8.)

II. LEGAL STANDARD

The statute governing the removal of cases to federal court, 28 U.S.C. § 1446, states the following:

The notice of removal of a civil action or proceeding shall be filed within 30 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 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1). "In considering a motion to remand, the removing party bears the burden of demonstrating that removal was proper." Mirarchi v. Mangan , No. 12-5749, 2013 WL 56112, at *2 (E.D. Pa. Jan. 3, 2013) (citing Boyer v. Snap-On Tools Corp. , 913 F.2d 108, 111 (3d Cir. 1990)). Removal is proper when the federal district court would have had original jurisdiction over the matter originally brought in state court. See In re Processed Egg Prods. Antitrust Litig. , 836 F.Supp.2d 290, 294 (E.D. Pa. 2011). "It is settled that the removal statutes are to be strictly construed against removal and that all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch and Signal Div ., 809 F.2d 1006, 1010 (3d Cir. 1987).

III. DISCUSSION

Greyhound argues that removal was proper because notice of removal was timely and because the court has original jurisdiction over this case pursuant to 28 U.S.C. § 1332: the parties are completely diverse and the amount in controversy exceeds $75, 000. Sacko does not dispute subject-matter jurisdiction, but instead argues that removal was improper due to procedural errors. In the motion to remand, Sacko advances two arguments as to why removal fails on procedural grounds. First, he argues that the case should be remanded to the Court of Common Pleas because, having filed the notice of removal fifty-two days after receipt of the writ of summons, Greyhound's notice of removal was untimely. Second, he asserts that Greyhound waived its right to remove by filing preliminary objections and a joinder complaint with the Court of Common Pleas prior to filing its notice of removal in the Eastern District of Pennsylvania. These arguments run afoul of case law within this circuit; thus, the motion to remand will be denied.

A. Untimely Removal

First, Sacko argues that the writ of summons served on Greyhound on February 19, 2013, constitutes an "initial pleading." Thus, pursuant to § 1446, which states that a party must file a notice of removal within thirty days of being served with an initial pleading, Sacko argues that Greyhound's notice of removal was untimely. To support this argument, Sacko cites Efford v. Milam , 368 F.Supp.2d 380 (E.D. Pa. 2005), which stated that a writ of summons could serve as an initial pleading for purposes of ...


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