United States District Court, E.D. Pennsylvania
SAMUEL W. MORRISSEY and TONI K. MORRISSEY, Plaintiffs,
STATE FARM FIRE & CASUALTY COMPANY, Defendant.
LAWRENCE F. STENGEL, District Judge.
This insurance contract dispute was removed to this court on September 10, 2014 based on diversity of citizenship of the parties. The plaintiffs move to remand this action to state court. I will deny this motion.
I. PROCEDURAL HISTORY
Plaintiffs Samuel and Toni Morrissey initiated this action in Berks County, Pennsylvania based on several state law claims arising out of a dispute with Defendant State Farm Fire and Casualty Insurance Company, their homeowner's insurance provider. They served State Farm with the complaint on August 11, 2014. Prior to formally filing the complaint and serving it, the plaintiffs filed a "Praecipe for Summons" and "Notice of Records Deposition in Aid of Drafting a Complaint" on March 27, 2014. The Writ of Summons and the Notice of Records Deposition in Aid of Drafting a Complaint were served on the defendant on April 17, 2014.
The defendant removed the action to this court on September 10, 2014 based on diversity of citizenship under 28 U.S.C. § 1332. The plaintiffs are Pennsylvania residents. The defendant is incorporated in Illinois. From what has been pled, the amount in controversy appears to be in excess of $75, 000. On September 18, 2014, the plaintiffs moved to remand to state court, claiming that the defendant's removal was untimely. The plaintiffs also contest that the defendant is a citizen of Illinois for the purposes of diversity jurisdiction.
a. The Defendant's Removal Was Timely
Pursuant to 28 U.S.C. § 1446(b), a notice of removal "shall be filed within thirty 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...." The plaintiffs argue that § 1446 required the removal of an action to federal court within thirty days of the service of the Writ of Summons.
It is well-established law that the plaintiffs' Writ of Summons could not trigger the 30-day period for removal. A writ of summons cannot serve as an "initial pleading" that triggers the 30-day period for removal under 28 U.S.C. § 1446(b). Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 347-48 (1999). See Sikirica v. Nationwide Insurance Co. , 416 F.3d 214, 222 (3rd Cir. 2005)("A summons may not serve as an initial pleading under Murphy Bros."). Where a complaint is received after service of the summons, the "time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, through service or otherwise, ' after and apart from service of the summons..." Murphy Bros. , 526 U.S. at 347-48. "[I]f the defendant is served with the summons but the complaint is furnished to the defendant sometime after, the period for removal runs from the defendant's receipt of the complaint." Id . at 354.
As Murphy Bros. explained, Congress intended to make the removal period uniform for all states. Id . at 351-52. Congress recognized that in some states, like Pennsylvania, the service of summons initiates an action "plac[ing] the defendant in the position of having to take steps to remove a suit to Federal court before he knows what the suit is about." Id . at 352.
Under this same line of thinking, the plaintiffs' Notice of Records Deposition in Aid of Drafting a Complaint would not serve as an initial pleading as well. The notice itself indicated that the plaintiffs needed State Farm's documents in order to even draft their complaint against State Farm. If the plaintiffs aren't even entirely clear of their claims against the defendant, it would be difficult to see how the defendant would be put on notice of the plaintiffs' claims. Section 1446(b) further provides in pertinent part:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable....
Neither the Writ of Summons nor the Notice of Records Deposition provided the defendant with information from which it could be ascertained that the case is removable. See Plaintiff's Motion to Remand, Doc. No. 5, Ex. A and B. There are no facts, allegations, or information in the Notice of Records Deposition to determine that the amount in controversy exceeded the $75, 000 jurisdictional limit or even to determine what allegations and claims were being asserted against State Farm. Neither can serve as the "initial pleading" to trigger the 30-day period for removal. Rather, in line with established case law, the complaint was the triggering "initial pleading."
State Farm filed the Notice of Removal on September 10, 2014, within thirty days of receipt of the complaint filed on August 11, 2014. State ...