United States District Court, E.D. Pennsylvania
J.K., a minor by and through his parents and natural guardians, Thomas Kpakah and Esther Kpakah, THOMAS KPAKAH and ESTHER KAPKAH, in their own right, Plaintiffs,
CSX TRANSPORTATION, RAYMOND WALSH and MICHAEL L. DOYLE, SR., Defendants.
JAN E. DuBOIS, District Judge.
This is a personal injury case. The Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. This case was commenced on December 20, 2013 by plaintiffs - J.K., a minor, and his parents, Thomas and Esther Kpakah - against defendants - CSX Transportation, Inc. ("CSXT"), Raymond Lawrence Wash, and Michael L. Doyle - in the Court of Common Pleas of Philadelphia County, Pennsylvania. (Mem. Law Supp. Def.'s Mot. Set Aside Default J. ("Def.'s Mem. Law") 4.) Plaintiffs allege in the Complaint, inter alia, that J.K. sustained severe personal injuries after he was struck by a CSXT train at a grade crossing in Darby, Pennsylvania on July 9, 2013. (Compl. ¶¶ 10, 13.)
Presently before the Court are defendants' motions to vacate default judgments entered against them by the Court of Common Pleas of Philadelphia and to dismiss portions of plaintiffs' Complaint. For the reasons that follow, the Court grants defendants' Motion to Set Aside Default Judgment, and grants in part and denies in part defendants' Motion to Dismiss.
On February 3, 2014, defendants timely filed a Notice of Removal in this Court pursuant to 28 U.S.C. §§ 1441 and 1446. (Document No. 1.) That Notice was not docketed in this Court until late afternoon on February 4, 2014. Also on February 4, 2014, just hours before the Notice was docketed in this Court, the Court of Common Pleas of Philadelphia entered three separate default judgments against defendants. (Def.'s Mem. Law 4, 6.)
A. MOTION TO VACATE DEFAULT JUDGMENTS
The Court first addresses defendants' Motion to Set Aside Default Judgment. Because the default judgments were entered before the state court was notified of the removal, the Court must address a preliminary question of when the process of removal to this Court was completed.
1. Removal to Federal Court
In order for a case to be properly removed to federal court, the removing defendants must first file a notice of removal in federal court. 28 U.S.C. § 1446(a). Defendants must then promptly give written notice to all adverse parties and file a copy of the notice of removal in the state court from which the case was removed. Id . § 1446(d).
The question of when removal is completed, i.e. when the state court is divested of jurisdiction, is not yet settled in the U.S. Court of Appeals for the Third Circuit. Westfield Ins. Co. v. Interline Brands, Inc., No. 12-6775, 2013 WL 1288194, at *2 n.1 (D.N.J. Mar. 25, 2013). This Court adopts the view that federal jurisdiction attaches as soon as a notice of removal is filed in federal court. See, e.g., Berberian v. Gibney , 514 F.2d 790, 792-93 (1st Cir. 1975). In the time period between the filing of this notice in federal court and full satisfaction of the requirements of 28 U.S.C. § 1446(d), both the state and federal courts have concurrent jurisdiction. See Resolution Trust Corp. v. Nernberg , 3 F.3d 62, 69 (3d Cir. 1993); Boyce v. St. Paul Fire & Marine Ins. Co., No. 92-6525 , 1993 WL 21210, at *3 (E.D. Pa. Jan. 28, 1993). Accordingly, a default judgment entered by a state court after a notice of removal is filed in federal court, but before prompt notice is given to all adverse parties and the state court, is valid and must be treated as if it were entered in federal court. Pennsylvania Nat. Bank & Trust Co. v. Am. Home Assur. Co. , 87 F.R.D. 152, 154 (E.D. Pa. 1980); Burroughs v. Palumbo , 871 F.Supp. 870, 872 (E.D. Va. 1994) (citing Butner v. Neustadter , 324 F.2d 783, 785 (9th Cir. 1963)).
2. Vacating of Default Judgments
In this case, the three default judgments entered against defendants by the Court of Common Pleas of Philadelphia were entered in the interim period between the filing of the Notice of Removal in this Court and full satisfaction of the requirements of 28 U.S.C. § 1446(d). As a result, those judgments are valid and must be treated as if they were entered by this Court. Pennsylvania Nat. Bank , 87 F.R.D. at 154. ...