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Aardvark Event Logistics, Inc. v. Bobcar Media, LLC

United States District Court, E.D. Pennsylvania

December 21, 2016

AARDVARK EVENT LOGISTICS, INC.
v.
BOBCAR MEDIA, LLC and GOLDBERG AND COHEN, LLP and MORRIS E. COHEN

          MEMORANDUM

          O'NEILL, J.

         Plaintiff Aardvark Event Logistics, Inc. filed suit in Pennsylvania state court against three New York citizens-defendants Bobcar Media LLC, Bobcar's intellectual property counsel Morris E. Cohen and Attorney Cohen's firm Goldberg Cohen LLP-alleging that defendants intentionally disparaged plaintiff in an effort to gain a competitive advantage over plaintiff and interfere with its existing and prospective business relations. On November 14, 2016, defendants filed a notice removing the case to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff now seeks to remand the case back to state court due to the alleged untimely nature of the removal notice. For the following reasons, I will deny the remand.

         FACTUAL BACKGROUND

         Plaintiff initiated suit in the Pennsylvania Court of Common Pleas for Montgomery County on September 21, 2016, alleging tortious interference with existing and prospective contractual relations, defamation and civil conspiracy. Thereafter, plaintiff served a copy of its complaint on defendants via certified mail through the United States Postal Service with return receipt requested. Pl.'s Mot. to Remand, Ex. C, ECF No. 7-4. The affidavit of service for defendant Morris Cohen reveals that plaintiff served him on September 26, 2016 at his place of business at “1350 Avenue of the Americas, Suite 435, New York, NY 10019.” Id. (emphasis added). The accompanying postal receipt, however, indicates that he was served at “1350 Avenue of the Americas, Suite 425, New York, NY 10019, ” and that service was accepted by “S. Little.” Id. (emphasis added). The affidavit of service for defendant Goldberg and Cohen LLP (GC) reveals that it was also served on September 26, 2016 at “1350 Avenue of the Americas, Suite 435, New York, NY 10019, ” while the accompanying postal receipt again indicates service at “1350 Avenue of the Americas, Suite 425, New York, NY 10019, ” with acceptance of service by “Emily Dalton.” Id. (emphasis added). Finally, the affidavit of service for defendant Bobcar Media, LLC reveals that it was served on September 26, 2016 at “110 Wall Street, 4th Floor, New York, NY 10005” with the postal receipt reflecting the same address and signed by a “Steve Cordon.” Id.

         On November 4, 2016, having received no responsive filings, plaintiff mailed a Notice of Intent to File Praecipe for Judgment by Default to each defendant. Pl.'s Mot. to Remand, Ex. D, ECF No. 7-5. The accompanying certificates of service for these three defendants were sent to the same addresses as listed in the foregoing affidavits of service for the complaint. Id. Ten days later, on November 14, 2016-the same day default judgment was to be entered- defendants filed a notice of removal to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Notice of Removal, ECF No. 1. In the notice, defendants alleged that they had never effectively been served with the complaint and that the notice of removal was therefore timely. Id. ¶ 3.

         On November 22, 2016, plaintiff filed the current motion to remand on the ground that the notice of removal was not timely filed within the thirty-day removal period set forth in 28 U.S.C. § 1446(b). Pl.'s Mot. to Remand, ECF No. 7. Defendants responded on December 6, 2016, and plaintiff submitted a reply brief on December 13, 2016. Defs.' Resp., ECF No. 9 and Pl.'s Reply, ECF No. 11.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 1441(a), a defendant may remove a civil action filed in a state court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of plaintiff's service of the complaint upon defendant. See 28 U.S.C. § 1446(b). The defendants bear the burden of establishing removal jurisdiction and compliance with all pertinent procedural requirements. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

         Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court. Id. Remand to the state court is appropriate for “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process.” PAS v. Travelers Ins. Co., 7 F.3d 329, 352 (3d Cir. 1993). Remand is mandatory and can occur at any time during the litigation if the court determines that it lacks federal subject matter jurisdiction. Kimmel v. DeGasperi, No. 00-143, 2000 WL 420639, at *1 (E.D. Pa. Apr. 7, 2000), citing 28 U.S.C. § 1447(c). A motion to remand the case on the basis of any defect in the removal procedure, however, must be submitted within thirty days after filing of the notice of removal under section 1446(a). 28 U.S.C. § 1447(c); N. Penn Water Auth. v. BAF Sys. Aerospace Elec., Inc., No. 04-5030, 2005 WL 1279091, at *5 (E.D. Pa. May 25, 2005). Upon a motion to remand, “it is always the removing party's burden to prove the propriety of removal, and any doubts about the existence of federal jurisdiction must be resolved in favor of remand.” Lumbermans Mut. Cas. Co. v. Fishman, No. 99-0929, 1999 WL 744016, at *1 (E.D. Pa. Sep. 22, 1999), citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992); see also Boyer, 913 F.2d at 111 (holding that the removal statutes “are to be strictly construed against removal and all doubts should be resolved in favor of remand.”), quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).

         DISCUSSION

         Plaintiff does not challenge this court's subject matter jurisdiction, but rather seeks remand because defendants did not timely file the notice of removal. Under 28 U.S.C. § 1446(b):

The notice of removal of a civil action or proceeding 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, or within thirty days after the service of the summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

Id. § 1446(b). This thirty day limitations period for removal is mandatory and cannot be expanded by the court. See Ogletree v. Barnes, 851 F.Supp. 184, 190 (E.D. Pa. 1994). The Court of Appeals has held that the term “initial pleading” triggering the start of the thirty-day removal period in § 1446(b) refers to the complaint, as opposed to a summons or praecipe for writ of a summons. Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 222-23 (3d Cir. 2005), citing Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344 (1999); Polanco v. Coneqtec Universal, 474 F.Supp.2d 735, 737 (E.D. Pa. 2007). “Thus, removal is not proper until a complaint has been served on the defendants.” Campbell v. Oxford Elec., Inc., No. 07-541, 2007 WL 2011484, at *2 (E.D. Pa. Jul. 5, 2007). Proper service of process, or a valid waiver, is required for the thirty day clock to begin to run on removal rights. See Murphy Bros., 526 U.S. at 350.

         Plaintiff alleges that defendants' notice of removal is untimely on its face. Specifically, plaintiff asserts that Pennsylvania Rules of Civil Procedure 403 and 404 permit service outside the Commonwealth to be effected by certified mail with a return receipt requested. In accordance with these dictates, plaintiff mailed the complaint to defendants in New York on September 22, 2016 via certified mail, and the receipts were Dated: September 26, 2016. Plaintiff then filed affidavits of service on October 10, 2016 and October 13, 2016. Nonetheless, defendants did not submit their notice of removal ...


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