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Mang v. Lutheran Children and Family Service of Eastern Pennsylvania

United States District Court, E.D. Pennsylvania

August 12, 2014

ZA MANG, Plaintiff,
v.
LUTHERAN CHILDREN AND FAMILY SERVICE OF EASTERN PENNSYLVANIA, et al., Defendant.

MEMORANDUM RE: PLAINTIFF'S MOTION TO REMAND

MICHAEL M. BAYLSON, District Judge.

I. Introduction

Plaintiff Za Mang, care of his Guardian ad Litem, Peter I. Danielle, filed a lawsuit in the Court of Common Pleas of Philadelphia County in March of 2013, alleging state law negligence claims against Defendants Liberty Lutheran Services ("LLS"); Lutheran Immigration and Refugee Service ("LIRS"); Lutheran Children and Family Service of Eastern Pennsylvania as itself, and as operator of Luther Place Group Home ("LCFS"); and Mary Ellen Glick, an employee of LCFS. Defendants removed the case to federal court. Plaintiff now moves this Court to remand to state court.

II. Facts

Plaintiff Za Mang came to the United States from a refugee camp in Burma in 2006, at the age of 13, through the United Nations High Commissioner for Refugees. ECF 10 (LIRS' Br. in Supp. of Removal), Ex. 1 (Pl.'s Compl.) ¶ 5. When Mr. Mang arrived in the United States, defendant LIRS was assigned responsibility for him. Id . LIRS, a wholly-owned subsidiary of LLS, is one of two agencies responsible for placing refugees through the Unaccompanied Refugee Minor program under the Office of Refugee Resettlement, a division of Health and Human Services. Id . ¶¶ 4-5.

After Mr. Mang's arrival, he was placed in a domestic foster care program in southeast Pennsylvania operated by LCFS and was later moved to a group home, also operated by LCFS in Pennsylvania. Id . ¶¶ 5-6, 10-11. Mr. Mang has special needs, including autism, social difficulties, and possibly some mental retardation. Id . ¶ 6.

Mr. Mang has alleged that the group home primarily housed juvenile delinquents. Id . Mr. Mang has further alleged that he repeatedly told the managers of the home that he was being harassed and bullied. Id . Mr. Mang was sexually assaulted by three minors and one adult living in the home. Id . All four of the attackers were criminally prosecuted and convicted. Id . ¶ 7.

Plaintiff Mang filed suit against Defendants in state court for (1) negligently placing him in an inappropriate group home and (2) causing him extreme emotional distress as a result of Defendants' failure to protect him from the other children at the group home. Id . ¶¶ 7-10.

Defendants LCFS and Mary Ellen Glick filed a Notice of Removal to this Court on April 3, 2014, contending that the suit must be removed to federal court under § 1441 (b).[1] ECF 1. Plaintiff filed a Motion to Remand on April 16, 2014, arguing inter alia that removal was improper because this Court did not have original jurisdiction and the removing Defendants had not received the consent of the remaining Defendants to remove the case to federal court. ECF 2 at 3.

LIRS asserts that it did not receive the Notice of Removal until April 23 but, at a status conference with the Court, confirmed that it consented to removal. ECF 7. LCFS and Mary Ellen Glick then filed a supplemental brief in support of removal on June 12, 2014. ECF 9. For the first time in their Supplemental Brief, Defendants LCFS and Mary Ellen Glick contended that removal was proper under§ 1442(a)(1). Id. at 4.

LIRS also filed a Supplemental Brief in Support of Removal on June 13, 2014. ECF 10. Defendant LIRS argued only that it could properly consent to removal at that late date. Id. at 5.[2]

The state court docket reflects that Plaintiff personally served LLS with his state court Complaint on December 18, 2013. However, at the time this Memorandum was filed, LLS was unrepresented by counsel and had not filed an appearance, in either state or federal court. See No. CP-13-CV-131201769, Dkt. Entry of 1/6/2014 (Ct. Comm. Pl. Phila.).

III. Legal Standard

Civil actions filed in state court may be removed to federal court under 28 U.S.C. § 1441. Defendants must follow the parameters set forth in 28 U.S.C. § 1446 to file a Notice of Removal, including stating the grounds for removal, and submit the Notice in accordance with Rule 11 of the Federal Rules of Civil Procedure. 28 U.S.C. § 1446(a). The ...


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