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Boggs v. Harris

United States District Court, W.D. Pennsylvania

December 22, 2016

ROY E. BOGGS, an individual, and ANETTE BOGGS, his wife Plaintiffs,
DARWIND. HARRIS, an individual, and GETAWAY TOURS, INC. Defendants.


          Joy Flowers Conti Chief United States District Judge.

         I. Introduction

         Pending before the court is a motion to remand filed by plaintiffs Roy Boggs and Annette Boggs (“plaintiffs”). (ECF No. 5.) On June 28, 2016, Defendants Darwin Harris (“Harris”) and Gateway Tours, Inc. (“Getaway Tours”) (together “removing defendants”) removed this case to this court based upon diversity of citizenship, after the only nondiverse defendant in the state action was voluntarily dismissed. (ECF No. 1.)

         Plaintiffs argue that the case should be remanded because removing defendants waived their right to remove, or, in the alternative, because they did not file the notice of removal within the thirty-day time limit under 28 U.S.C. § 1446(b). As set forth below, the court finds that removing defendants did not waive their right to remove, but that removing defendants did file an untimely notice of removal. For this reason, plaintiffs' motion to remand will be granted.

         II. Procedural History

         On September 29, 2015, plaintiffs filed a complaint in the Court of Common Pleas of Beaver County against defendants Harris, Gateway Tours, and Conley-Beaver Corporation (“Conley-Beaver”). (ECF No. 1). Harris and Getaway Tours filed a timely answer and asserted a cross-claim against Conley-Beaver. (Id.)

         Plaintiffs are citizens of Pennsylvania. (Id. ¶ 2.) Removing defendants Harris and Getaway Tours are citizens of Michigan. (Id. ¶ 4-5.) Defendant Conley-Beaver is a resident of Pennsylvania. (Id. ¶ 3.) The inclusion of Conley-Beaver as a defendant at the commencement of this action precluded the filing of a federal lawsuit based upon diversity of citizenship.

         On May 17, 2016, counsel for plaintiffs informed counsel for Conley-Beaver that plaintiffs had agreed to dismiss Conley-Beaver from this action upon consent from Harris and Getaway Tours. (ECF No. 5 ¶ 15.) On May 18, 2016, Harris and Getaway Tours consented to the discontinuance of Conley-Beaver via email correspondence sent to counsel for plaintiffs and counsel for Conley-Beaver. (Id. ¶ 16.)[1] On May 18, 2016, Conley-Beaver sent email correspondence to counsel for plaintiffs confirming Harris's and Getaway Tours' consent to the discontinuance of Conley-Beaver, and requesting that plaintiffs prepare a stipulation of discontinuance of Conley-Beaver. (Id. ¶ 17.)

         One May 23, 2016, plaintiffs forwarded all defendants a stipulation for discontinuance of Conley-Beaver for signature. (Id. ¶ 18.) On May 31, 2016, all defendants supplied plaintiffs with executed counterparts of the stipulation for discontinuance. (Id. ¶ 19.) On June 15, 2016, plaintiffs filed the fully executed stipulation with the state court. (Id.)

         On June 28, 2016, Harris and Gateway Tours filed a notice of removal on the basis of diversity jurisdiction. (Id.)

         Since learning on May 17, 2016, about plaintiffs' intent to dismiss Conley-Beaver from this action, defendants Harris and Getaway Tours engaged in the following discovery:

- May 18, 2016, scheduled the independent medical exam (“IME”) for Roy Boggs;
- May 20, 2016, inquired about dates to conduct a vocational interview of Mr. Boggs;
- June 8, 2016, completed the vocational interview; - June 10, 2016, conducted Mr. Boggs' IME;
- June 14, 2016, deposed plaintiffs;
- June 27, 2016, deposed an administrator from Mr. Boggs' place of employment; and
- June 27, 2016, provided notice that a motion to compel would be presented to the Beaver County Court on June 30, 2016. (ECF No. 5 ¶ 12.)

         On July 19, 2016, plaintiffs filed a motion to remand this matter to state court and a brief in support of the motion. (ECF Nos. 5, 6.) On August 9, 2016, the removing defendants filed a response in opposition to the motion for remand and a brief in support of the response. (ECF Nos. 10, 11.)

         A hearing on plaintiffs' motion for remand was held before this court on September 20, 2016. (Minute Entry 9/20/2016.) At that time the court, upon joint request from the parties, permitted both parties to submit supplemental briefing on the narrow question whether a voluntary discontinuance of a defendant via stipulation is analogous to a settlement agreement for the purpose of determining when the thirty-day removal period provided under 28 U.S.C. § 1446(b) commenced. (Id.) The motion is now fully briefed and ripe for disposition.

         III. Statement of Facts

         Plaintiff Roy Boggs asserts a negligence claim against Harris and Getaway Tours. Plaintiff Annette Boggs asserts a loss of consortium claim against Harris and Getaway Tours. Plaintiffs allege in the complaint that:

- on December 26, 2013, Mr. Boggs was operating his vehicle on State Route 18 (ECF No. 1 ¶ 11);
- at approximately 10:39 p.m., Harris, who was operating a bus owned by Getaway Tours, exited a commercial plaza owned by Conley-Beaver (id. ¶ 11-12);
- Darwin Harris negligently crossed over the south bound lane of Route 18 directly into Mr. Boggs' path, resulting in a collision (id. ¶ 12); and
- Mr. Boggs suffered numerous and severe injuries as a result of the collision (id.).

         IV. Discussion

         28 U.S.C. § 1441(a) authorizes a defendant to remove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” The district courts have original jurisdiction over diversity actions “where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of different States.” 28 U.S.C. § 1332(a).[2]

         A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of the plaintiff's service of the complaint upon the defendant or within thirty days of receipt of a copy of an amended pleading, motion, order, or other paper from which the defendant may first ascertain that the case has become removable. 28 U.S.C. § 1446(b). “[T]he burden of establishing removal jurisdiction rests with the defendant.” Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3d Cir. 1995). It is the burden of the party seeking to preserve the district court's jurisdiction, typically the defendant, to show that the requirements for removal have been met. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214 (3d Cir. 1999); Bell Atlantic Mobile, Inc. v. Zoning Bd. of Butler Tp., 138 F.Supp.2d 668 (W.D. Pa. 2001) (noting that defendant bears the burden of proving that removal was proper).

         “Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court.” McGuire v. Safeware, Inc., Civ. Action No. 13-3746, 2013 WL 5272767, at * 1 (E.D. Pa. Sept. 17, 2013) (citing Cook v. Soft Sheen Carson, Inc., Civ. Action No. 08-1542, 2008 WL 4606305, at*1 (D.N.J. Oct. 15, 2008)). “Cases may be remanded under § 1447(c) for (1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993).[3] “It is settled that the removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.” Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987) (footnote omitted).

         Here, plaintiffs make two arguments in favor of remand:

1) removing defendants' removal was untimely, because it did not comply with 28 U.S.C. § 1446(b); and
2) removing defendants waived the right to remove, because they invoked the jurisdiction of the state court and demonstrated a “clear and unequivocal” intent to litigate in state court.

         Plaintiffs' first argument raises a difficult legal question given the existence of conflicting case law with respect to when the thirty-day removal period begins under 28 U.S.C. § 1446(b). If this court were to determine that removing defendants waived the right to removal, this court would be able to resolve this matter without addressing the question whether removing defendants' notice of removal was timely filed. This court will, therefore, first address plaintiffs' second argument regarding defendants' alleged waiver.

         A. Defendants' waiver of the right to remove

         Plaintiffs argue that removing defendants waived their right to remove by demonstrating the intent to litigate in state court. In litigation, a defendant's waiver of removal rights must be “clear and unequivocal.” Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1218 n.15 (3d Cir. 1991). (“In the context of litigation-based waiver, the ‘clear and unequivocal' standard makes sense. Otherwise, in order not to waive the right to remove defendants would have to remain inactive in the state court, running the peril of being held in default should a remand from the district court later occur.”).[4]

         The Third Circuit Court of Appeals has not specifically addressed what constitutes a “clear and unequivocal” waiver of the right to remove; however, courts typically find that a defendant has waived his right to remove a case under one of two scenarios. First, a defendant waives his right to remove when he “attempts to experiment with the merits of his case in state court and then use removal to get a second chance or ‘alternative appeal' route in federal court.” Haun v. Retail Credit Co., 420 F.Supp. 859, 863 (W.D. Pa. 1976) (citing Rosenthal v. Coates, 148 U.S. 142, 147 (1893); see Sacko v. Greyhound Lines, Inc., Civ. Action No. 13-1966, 2013 WL 2892906 at *2-3 (E.D. Pa. May 31, 2013) (“[W]aiver may be found where a defendant experiments with the merits of the case in state court and then seeks to remove the case to federal court, often after receiving an adverse decision.”).

         Alternatively, a court may find that a defendant has waived his right to remove a case to federal court where the defendant takes an affirmative action evincing an intent to remain in state court. Mancari, 683 F.Supp. at 94 (“In almost all of the cases where waiver has been found, the courts have concluded that the defendant manifested an intention to remain in state court by either asserting its rights in the court or by some other affirmative action taken in the state forum.”); Rockwell v. U.S. Fid. & Guar. Co., 137 F.Supp. 317, 319 (M.D. Pa. 1955) (“The action relied upon [as a waiver] must be inconsistent with a purpose to pursue the right to remove and clearly indicate an intention to submit to the jurisdiction of the state court.”). “The right to remove may also be waived if a defendant takes substantial defensive action in state court before petitioning for removal.” Bryfogle v. Carvel Corp., 666 F.Supp. 730, 733 (E.D. Pa. 1987).

         Under this second scenario, a court will examine the actions taken by the defendant in state court to determine whether they are substantial and demonstrate an intent to litigate in state court. “The majority of courts seem to have held that preliminary conduct by a defendant short of his actual litigation of the merits or his voluntary invocation of state court jurisdiction for his own purposes does not constitute a waiver of his right to remove.” Haun, 420 F.Supp. at 863; Selvaggi v. Prudential Prop. & Cas. Ins. Co., 871 F.Supp. 815, 818 (E.D. Pa. 1995) (“courts generally have held that the right to remove is maintained where there has been no litigation on the merits and no prejudice to any of the parties”).

         District courts within the Third Circuit have found that most actions taken by a defendant prior to removal do not constitute a “clear and unequivocal” waiver of the right to remove. “District courts in our Circuit have found that waiver has not been established when defendants attend and participate in a scheduling conference, file preliminary objections, file a praecipe to file a complaint and a praecipe for judgment of non pros, and file an answer.” Cognetx, Inc. v. Haughton, No. 10-2293, 2010 WL 3370761, at *6 (E.D. Pa. Aug. 26, 2010). District courts have found that conducting discovery does not automatically constitute a waiver, particularly when the parties are in the early stages of discovery. Id.; Cook v. Soft Sheen Carson, Inc., Civ. Action No. 08- 1542, 2008 WL 4606305, at *4 (D.N.J. Oct. 15, 2008); 14C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3731 (4th ed. 2009) (“A defendant's conduct in defending the state court action prior to the end of the two statutory thirty-day periods established by Section 1446(b) will not constitute a waiver of the right to remove.”).

         Courts also closely consider the timing of the defendant's conduct. “It is clear that the stage the case is in should be and is crucial when analyzing whether there has been a waiver of the right to remove. For example, filing a pleading in the early stages of litigation may not be as clear and unequivocable an act as continuing to present evidence in a trial.” Mancari, 683 F.Supp. at 94-95; Selvaggi, 871 F.Supp. at 817 (“pleadings that are filed early in the proceedings are rarely construed as clear waivers of the right to remove.”).

         Other circuit courts of appeals have gone so far as to hold that the right to remove cannot be waived prior to the right existing. Akin v. Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir. 1998) (where the “actions in state court by defendant . . . were taken before it was unequivocally apparent that the case was removable, ” they do not constitute waiver of the right to remove); McKnight v. Illinois Cent. R.R., 967 F.Supp. 182, 186 (E.D. La. 1997) (“[t]he right to remove a case to federal court may be waived by acts taken in the ...

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