United States District Court, E.D. Pennsylvania
AARDVARK EVENT LOGISTICS, INC.
BOBCAR MEDIA, LLC and GOLDBERG AND COHEN, LLP and MORRIS E. COHEN
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.
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.
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.
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.
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).
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.
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. §
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
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.
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