United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
January 3, 2017, defendant State Farm Mutual Automobile
Insurance Company (“State Farm”) filed a notice
of removal in this court. (Doc. 1). Currently before the
court are a motion to remand, (Doc. 4), and a motion to
strike, (Doc. 8), filed by the plaintiffs, Joan Steele and
Cheryl McIvor. In addition, before the court is a motion to
amend the notice of removal, (Doc. 10), filed by State Farm.
For reasons more fully discussed below, the plaintiffs'
motion to remand is GRANTED and State Farm's motion to
amend is DENIED. The plaintiffs' motion to strike is
DENIED as moot.
September 15, 2014, the plaintiffs were involved in a car
accident with a non-party to this action. On November 29,
2016, the plaintiffs filed a complaint against State Farm,
plaintiff Steele's insurance policy holder, in the Court
of Common Pleas of Pike County. State Farm was served on
December 5, 2016. Defendant Allstate Insurance Company
(“Allstate”) was served on December 6, 2016.
January 3, 2017, State Farm removed the plaintiffs'
action from state court by filing a notice of removal in this
court. (Doc. 1). The notice alleged diversity of
citizenship as the basis for removal. The notice did not
attach a copy of the plaintiffs' complaint as an exhibit.
Upon filing, defendant Allstate Insurance Company
(“Allstate”) was entered on the docket in this
case. However, the notice of removal did not contain a
signature or any representation from an Allstate agent
indicating that Allstate agreed to the removal. An attorney
for Allstate has not separately entered his or her appearance
and Allstate remains a pro se party.
January 10, 2017, the plaintiffs filed a motion to remand
with a brief in support. (Docs. 4-5). The plaintiffs'
motion highlighted the fact that State Farm forgot to attach
a copy of the underlying complaint. State Farm filed the
complaint immediately after the plaintiffs' motion to
remand was filed. (Doc. 7). In response to this, the
plaintiff filed a second motion seeking to strike the filed
complaint. (Doc. 8). Thereafter, on January 13, 2017, State
Farm filed a formal motion to amend its notice of removal
with a brief in support. (Docs. 10, 12). The motions are now
ripe for review.
STANDARD OF REVIEW
1441(a) of Title 28 of the United States Code provides that
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant . . . to the
district court of the United States.” 28 U.S.C.
§1441(a). At all times this removal statute should 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).
to remand may allege “(1) lack of district court
subject matter jurisdiction or (2) a defect in the removal
procedure.” Balazik v. County of Dauphin, 44
F.3d 209, 213 (3d Cir. 1995). If the motion to remand is made
on jurisdictional grounds, “[t]he party asserting
jurisdiction bears the burden of showing the action is
properly before the federal court.” Scanlin v.
Utica First Ins. Co., 426 F.Supp.2d 243, 246 (M.D. Pa.
2006) (quoting Sikirica v. Nationwide Ins. Co., 416
F.3d 214, 219 (3d Cir. 2005)). Similarly, the defendant also
bears the burden of establishing that all procedural
requirements have been met. Baldy v. First Niagara
Pavilion, C.C.R.L., LLC, 149 F.Supp.3d 551, 555 (W.D.
Pa. 2015); A.R. v. Norris, No. 3:15cv1780, 2015 WL
695 1872, at *1 (M.D. Pa. Nov. 11, 2015).
jurisdictional error is simply a technical error in the
notice, “[d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.”
28 U.S.C. §1653. “Section 1653 gives both district
and appellate courts the power to remedy inadequate
jurisdictional allegations, but not defective jurisdictional
facts.” USX Corp. v. Adriatic Ins. Co., 345
F.3d 190, 204 (3d Cir. 2003). Although an amendment after the
30 day filing period may not allege new grounds for
jurisdiction, it may be allowed to cure technical
deficiencies. See, e.g., Xia Zhao v. Skinner Engine
Co., Civ. Action No. 11-7514, 2012 WL 1758145, at *2
(E.D. Pa. 2012).
plaintiffs' motion seeks remand based on State Farm's
failure to show diversity of citizenship, State Farm's
failure to attach a copy of the complaint, and State
Farm's failure to obtain Allstate's consent to
removal. In response, State Farm argues that it should be
allowed to cure jurisdictional defects in the notice and
requests that the court allow the late filing of the
complaint. However, one defect in State Farm's notice of
removal is not merely technical. State Farm's failure to
obtain to Allstate's consent before filing the notice of
removal is a procedural defect that cannot be cured at this
time and remand is appropriate.
removal statute provides that “[w]hen a civil action is
removed solely under 1441(a), all defendants who have been
properly joined and served must join in or consent to the
removal of the action.” 28 U.S.C. §1446(b)(2)(A).
Defendants are given thirty (30) days after service of the
complaint to remove the action to federal court. Id.
§1446(b). Though courts are split on this issue,
most circuits and this district has found that a defendant
cannot verify a codefendant's consent to removal.
Norris, 2015 WL 6951872, at *3 (collecting cases).
“A codefendant's consent to removal must take the
form of: (1) clearly and unambiguously joining in the
removing defendant's notice of removal; or (2) filing a
separate written consent to removal with the court.”
Id. With respect to the timing of the consent,
“district courts within [this circuit] require that all
codefendants join in the notice of removal or give their
consent to removal within thirty days after receiving service
of plaintiff's complaint, ” applying the removal
statute strictly. Id. at *4 (collecting cases).
Farm requests that this court allow the case to proceed
without Allstate's consent and, essentially, requests
that this court ignore the thirty (30) day requirement
because Allstate is pro se. State Farm does not
assert that it has ever received Allstate's consent. The
language in the removal statute is clear and its requirements
must be strictly construed. Allstate has not consented to
removal. Even if Allstate decided to consent at some later
time, their consent would fall outside of the thirty day time
period provided by the statute. The fact that ...