United States District Court, Middle District of Pennsylvania
Conner Chief Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
This case, which comes before the court on a motion to remand this action to the Court of Common Pleas of Dauphin County, illustrates some of the procedural shoals which must be navigated by litigants when engaging in federal removal practice. Our legal system is one that is marked by overlapping jurisdiction between state and federal courts, with both court systems exercising concurrent authority over a wide array of cases and controversies. Recognizing this fundamental truth regarding the architecture of our court system, and acknowledging that some matters commenced in state court may be better suited for resolution in federal court, Congress has by statute prescribed procedures for the removal of cases from state court into a federal legal forum. See 28 U.S.C. §1446. However, while Congress has provided a path for removal of cases from state courts, it has done so in a fashion which also acknowledges that untrammeled removal of matters would be inconsistent with the considerations of comity that guide our dual court system, and could be potentially disruptive of judicial economy. Therefore, by enacting 28 U.S.C. §1446, Congress has prescribed both substantive requirements for removal and set time lines and procedures for the exercise of removal jurisdiction, procedures which command parties to make prompt and timely removal decisions.
In some instances, like this case, those procedures and time lines can create a challenge for counsel. First, counsel must ensure that removal is proper, and may not prematurely seek to remove a case to federal court prior to ensuring that the opposing party has stated a claim that is cognizable in federal court. Therefore, counsel are enjoined that they may not act too hastily in filing a notice of removal. At the same time the removal statute requires counsel to move promptly when removing an action, and instructs counsel that: “[t]he 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 [removal] action or proceeding is based.” 28 U.S.C. §1446. Therefore, counsel are also forbidden from delaying too long in seeking removal of a lawsuit from state court into a federal forum after the nature of the federal claim becomes apparent.
Thus, in practice, litigants must often endeavor to steer a course between the Scylla of § 1446's prohibition against the filing of premature removal notices and the Charybdis of §1446's time limits for removal. In this case, the motion to remand filed by the plaintiffs calls upon us to assess whether the defendant properly navigated these legal shoals. Finding that the defendant steered a true legal course in this matter, for the reasons set forth below we recommend that the motion to remand be denied.
II. Statement of Facts and of the Case
The plaintiffs, who were initially proceeding pro se, commenced this action by filing a writ of summons against the defendant, State Farm, on October 9, 2013. (Doc. 8. Ex. B.) That writ of summons was a spare document, which provided no legal or factual basis for removal of this action. This writ of summons was served upon, and received by, State Farm by October 15, 2013. (Id.) State Farm then promptly responded to this pro se pleading, with counsel entering an appearance and filing a praecipe and rule to file a complaint on October 23, 2013. (Doc. 8, Ex. A.)
When State Farm’s counsel did not receive a copy of any complaint, on January 17, 2014, State Farm filed a Notice of Intent to File Praecipe to enter a Judgment of Non Pros which recited that State Farm had not received a complaint from the plaintiffs. (Id.) In fact, unbeknownst to State Farm, the pro se plaintiffs had placed a complaint upon the Common Pleas court docket on December 11, 2013, and had certified that a copy of the complaint had been mailed to defense counsel. Counsel for State Farm attests, however, that no such complaint was received by them, and their actions in filing a Notice of Intent to File Praecipe to enter a Judgment of Non Pros on January 17, 2014, confirm their lack of knowledge regarding this pro se filing. Instead, it appears undisputed that State Farm first learned of this filing when it was contacted on January 29, 2014, by the newly retained counsel for the plaintiffs and advised that a complaint, in fact, had been filed by the plaintiffs. (Doc. 8.) Having learned of this development, State Farm moved promptly, filing a Notice of Removal within two days, on January 31, 2014. (Doc. 1.)
It is against this factual backdrop that we consider the plaintiffs’ motion to remand. (Doc. 6.) For the reasons set forth below, it is recommended that this motion be denied.
Removal of cases is governed 28 U.S.C. §1146, which provides as follows:
(a) Generally.--A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements; generally.--(1) 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 ...