United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge.
before the court is a motion to remand filed by plaintiffs
Jeffrey Golembewski and Dorothea Golembewski on December 19,
2016, (Doc. 3), and a motion for extension of time filed by
defendants Stanislaw Rusek, Antoni J. Szot and A&A
Express, LLC on December 28, 2016, (Doc. 5). The parties
dispute whether the court must grant the motion to remand
because the defendants failed to file their notice and
petition for removal with the appropriate court within thirty
(30) days of service of the complaint. For the reasons
discussed below, the court will DENY the plaintiffs'
motion for remand and GRANT the defendants' motion for
extension of time.
29, 2016, the plaintiffs filed a complaint in the Court of
Common Pleas of Luzerne County, Pennsylvania. (Doc. 5, Ex.
A). The complaint presents four (4) counts against the
defendants arising from injuries suffered by Jeffrey
Golembewski in a motor vehicle accident on October 15, 2014.
Id. Defendant Stanislaw Rusek was served with the
complaint on August 30, 2016. (Doc. 3, Ex. A).
September 9, 2016, the defendants filed a notice and petition
for removal in the Court of Common Pleas of Luzerne County.
(Doc. 5, Ex. B). That same day, the defendants served a copy
of the same on the plaintiffs' counsel. (Doc. 5,
¶5). The defendants intended to file the notice and
petition for removal in the District Court for the Middle
District of Pennsylvania, but a Luzerne County caption rather
than a Middle District caption was mistakenly used on the
certificate of service. (Doc. 5, ¶3).
November 21, 2016, the defendants discovered the error and
“immediately” filed a “nearly
identical” notice and petition for removal in the
District Court for the Middle District of Pennsylvania. (Doc.
5, p. 2).
December 19, 2016, the plaintiffs filed a motion for remand
based upon the defendants' untimely filing of the notice
and petition for removal.
December 28, 2016, the defendants filed a motion nunc pro
tunc to extend the time to file their notice and
petition for removal.
notice of removal of a civil action or proceeding shall be
filed within 30 days after receipt by the defendant, through
service or otherwise, of a copy of the initial
pleading...” 28 U.S.C. §1446(b). The federal court
may remand the case to state court if there is any defect
other than the lack of subject matter jurisdiction, such as
the failure to file notice to remove within thirty (30) days
of receipt of the initial pleading. 28 U.S.C. §1447(c).
an act may or must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because
of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
“The determination of what sorts of neglect will be
considered ‘excusable' is an equitable one, taking
account of all relevant circumstances.” Pioneer Inv.
Services Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 381,
395 (1993) (holding that “an attorney's inadvertent
failure to file a proof of claim by the bar date can
constitute ‘excusable neglect' within the meaning
of [Bankruptcy] Rule 9006(b)(1).”).
Third Circuit held that a court must, at minimum, balance the
following five factors when considering whether an act or
omission by a party or party's counsel qualifies as
“excusable neglect”: (1) “whether the
inadvertence reflects professional incompetence such as
ignorance of the rules of procedure” (citing Campbell
v. Bowlin, 724 F.2d 484 (5th Cir. 1984)); (2) “whether
the asserted inadvertence reflects as easily manufactured
excuse incapable of verification by the court” (citing
Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1172
(1st Cir. 1978)); (3) “whether the tardiness results
from counsel's failure to provide for a readily
foreseeable consequence” (citing United States v.
Commonwealth of Virginia, 508 F.Supp. 187 (E.D.Va. 1981));
(4) “whether the inadvertence reflects a complete lack
of diligence” (citing Reinsurance Co. of Am., Inc. v.
Administratia, 808 F.2d 1249 (7th Cir. 1987)); (5)
“whether the court is satisfied that the inadvertence
resulted despite counsel's substantial good faith efforts
toward compliance.” Consolidated Freightways Corp. of
Del. v. Larson, 827 F.2d 916, 919 (1987).
plaintiffs contend the matter should be remanded to the
Luzerne County Court of Common Pleas because the defendants
failed to file a timely notice and petition for removal.
(Doc. 4, p. 2). The plaintiffs essentially interpret 28
U.S.C. §1446(b) as a per se rule, requiring
remand whenever a party fails to file their notice of removal
within thirty (30) days. (Doc. 4, p. 3). Therefore, the case
must be remanded because the ...