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Spanier v. Freeh

United States District Court, M.D. Pennsylvania

November 26, 2014



MALACHY E. MANNION, District Judge.

This case's unusual procedural background has brought it before this court for a determination of whether its removal to this venue was proper and whether plaintiff's motion to remand the matter to the Centre County Court of Common Pleas must be granted. Pursuant to Pennsylvania procedure, plaintiff commenced this action by filing a writ of summons in state court on July 11, 2013. Because there is a criminal matter underlying the instant suit, the state court judge stayed the case pending resolution of the criminal case, and, despite defendants' attempts to fight the stay and force plaintiff to file a complaint, no complaint has yet been filed in the case. Anxious that if they did not remove the case within 28 U.S.C. §1446(c)(1)'s one-year time limit on the removal of diversity cases, their path to federal court would be permanently barred, defendants removed the case on July 9, 2014 despite the fact that no complaint had been filed. Plaintiff moves to remand on several bases, including that the removal was premature because no initial pleading has been served in the case. After considering briefs and oral argument on the matter, the court has determined that the removal was premature and that the case must be remanded to the Court of Common Pleas of Centre County.


Plaintiff Graham Spanier is a former president of the Pennsylvania State University ("Penn State"). During his tenure, the sexual abuse of children by former Penn State football coach Jerry Sandusky came to light. In November of 2012, plaintiff was charged with various crimes in Pennsylvania state court in connection with the Sandusky matter. No date has been set for trial in the plaintiff's criminal case.

Plaintiff instituted this suit against defendants Louis Freeh, Freeh Sporkin & Sullivan LLP ("FSS"), and Pepper Hamilton LLP by filing a writ of summons in the Centre County Court of Common Pleas on July 11, 2013. He filed an amended writ of summons against Louis Freeh and FSS on September 12, 2013, dropping Pepper Hamilton LLP from the case. The civil cover sheet for the state court writ indicates that "slander/libel/defamation" is the cause of action for the suit, (Doc. 1-2, at 2), a claim arising from the report issued by Freeh and FSS in connection with its investigation of the Sandusky matter.

After receiving the amended writ, defendants ruled plaintiff to file a complaint. (Doc. 1-5). Instead of doing so, plaintiff moved to stay the proceedings in the civil case until his underlying criminal case is resolved. Defendants opposed the motion. A hearing on the stay was held in January 2014. Pennsylvania Court of Common Pleas Judge Jonathon Grine applied the six-part test governing whether a stay ought to be entered to protect a party's Fifth Amendment privilege, and determined that the balancing of the factors led to a conclusion that issuing the stay was appropriate on February 25, 2014. (Doc. 1-6). Defendants moved for reconsideration of the decision to impose a stay, but their motion was denied.

Defendants then appealed the motion to stay to the Superior Court of Pennsylvania, arguing various positions, including that the decision to stay the case put their right to remove the case to federal court in jeopardy. The Superior Court denied the appeal for lack of jurisdiction on June 30, 2014, because the order to stay proceedings did not qualify as a final appealable order. The Superior Court noted its belief that the claim would not be irrevocably lost if review were postponed until judgment in the case was final, because there is a chance that a federal court would find an equitable reason to allow defendants to remove the case outside of the one-year statutory deadline for removal of diversity cases mandated by 28 U.S.C. §1446. Following the denial of their appeal, the defendants removed the case to this court on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§1332, 1441, and 1446. (Doc. 1). Plaintiff moved to remand the case to the Court of Common Pleas of Centre County. (Doc. 7). The matter has been briefed, (Docs. 8, 18, 21), and the court heard oral argument on the motion to remand on November 14, 2014.


"Under 28 U.S.C. §1441(a), defendants may generally remove civil actions from state court to federal district court so long as the district court would have had subject-matter jurisdiction had the case been originally filed before it." A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014). Upon a motion to remand a removed action, the removing party bears the burden of demonstrating that removal was proper. Scanlin v. Utica First Ins. Co., 426 F.Supp.2d 243, 246 (M.D. Pa. 2006) ( citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). "The party asserting jurisdiction bears the burden of showing the action is properly before the federal court." Id . "[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" A.S. ex rel. Miller, 769 F.3d, at 208 ( quoting Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir.1992)).


Defendants removed this action despite that fact that no complaint has yet been filed in the case. Defendants represent that they took this course of action to protect their rights because, due to the stay of the proceedings in state court, their ability to remove the case within the constraints presented by various sections of 28 U.S.C. §1446 has been jeopardized.

28 U.S.C. §1446(b)(1) provides that:

"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 ...

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