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Marinkovic v. Mercer County Tax Claim Bureau

United States District Court, W.D. Pennsylvania

March 27, 2017

M. MARINKOVIC, Plaintiff,
v.
MERCER COUNTY TAX CLAIM BUREAU, et al, Defendants.

          OPINION

          DAVID STEWART CERCONE UNITED STATES DISTRICT JUDGE.

         M. Marinkovic ("plaintiff") commenced this civil action in the Court of Common Pleas of Mercer County on January 4, 2016.[1] In his initial complaint plaintiff named Mercer County Tax Claim Bureau ("Bureau") as defendant and alleged six causes of action pursuant to the Civil Rights Act, 42 U.S.C. § 1983. All of the causes of action were premised on asserted violations under the Ninth and Fourteenth Amendments to the United States Constitution. The Bureau filed preliminary objections to the initial complaint on January 25, 2016. Plaintiff filed preliminary objections to the Bureau's preliminary objections and motion to strike on February 1, 2016.

         Plaintiff filed an amended complaint ("first amended complaint") on February 10, 2016, adding as defendants Mercer County and Mercer County Commissioners Scotty Boyd ("Boyd"), Timothy McGonigle ("McGonigle"), and Matthew McConnell ("McConnell"), in their individual capacities. Plaintiff alleged nine causes of action in the first amended complaint, seven of which asserted claims pursuant to the Civil Rights Act predicated on asserted violations of numerous amendments to the United States Constitution.

         The Bureau, Mercer County, and Commissioners Boyd, McGonigle, and McConnell ("defendants") removed the action on March 11, 2016, pursuant to 28 U.S.C. §§ 1441(a) and (c). Defendants then filed a motion to strike the first amended complaint in its entirety and brief in support on April 4, 2016. Plaintiff filed a brief in opposition to this motion on May 5, 2016. Plaintiff filed a motion to remand to state court on April 11, 2016 and defendants submitted a brief in opposition to this motion on May 20, 2016.

         On June 6, 2016, plaintiff filed a notice/motion to 1) dismiss all federal claims without prejudice, 2) permit the filing of a second amended complaint limited to state law claims and 3) remand the action to state court. Defendants submitted a brief in opposition to these filings on June 15, 2016.

         Plaintiff essentially seeks to limit his complaint to claims grounded in state law and return to state court. Defendants maintain that the action must remain in federal court. For the reasons set forth below, plaintiff will be permitted to proceed on the second amended complaint and the action will be remanded to state court.

         Defendants were entitled to remove the action based on the first amended complaint. Removal of a state action to federal court is proper only if the action "originally could have been filed in federal court." Caterpillar v. Williams, 482 U.S. 386, 392 (1987); see also 28 U.S.C. § 1441.[2] Absent diversity of citizenship, federal-question jurisdiction is required to support removal. Id. at 392.

         The question of whether federal question jurisdiction exists is determined by the "well-pleaded complaint rule, " which requires that a federal question be "presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392; see also Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir. 1995). Generally, the well-pleaded complaint rule "makes the plaintiff the master of the claim." Id. at 392; see also Trans Penn, 50 F.3d at 228 (same). The rule permits the plaintiff to "avoid federal jurisdiction by exclusive reliance on state law." Id. at 392.

         The gravamen of plaintiff's complaint is that defendants exceeded their authority under Pennsylvania's Real Estate Tax Sales Law when the Bureau accepted his bid of $400.00 on real estate placed for tax sale and thereafter informed him that an additional $1, 600.00 would be due for transfer taxes. These transfer taxes were based on an assessed value of $20, 000.00 for the real estate, and not the $400.00 bid plaintiff had submitted and the Bureau had accepted. Plaintiff also takes issue with the length of time the Bureau informed him it would take to receive a deed, contending that the purported three year delay in the transaction violates his rights to due process and entitles him to declaratory relief and self-help remedies to expedite the process.

         The first amended complaint accompanying the removal petition is replete with claims and accusations grounded in the Ninth and Fourteenth Amendments to the United States Constitution. It follows that federal question jurisdiction existed on the date of removal and the court has pendent jurisdiction over any concomitant state law claims subsumed within the complaint.

         Plaintiff has filed a "notice of dismissal of federal claims without prejudice, or in the alternative, a motion to dismiss federal claims without prejudice and amendment." Through this filing plaintiff seeks to withdraw all federal claims and file an amended complaint that contains only state law claims. Defendant opposes the motion to the extent it seeks to divest the court of jurisdiction in the case.

         Federal Rule of Civil Procedure 41 provides for the voluntary dismissal of an action without court order if the plaintiff files the notice of dismissal before the opposing party serves either an answer or a motion for summary judgment, or if all parties who have appeared sign the stipulation of dismissal. Fed.R.Civ.P. 41(a)(1)(A). In all other incidences, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2).

         Defendants concede that at this juncture plaintiff has the right to dismiss his federal causes of action. They do not address whether the dismissal of those claims should be with or without prejudice. The court will thus assume that defendants oppose a dismissal that is without prejudice.

         All of the claims in the first amended complaint were predicated on federal law. Thus, recognizing the notice or granting the alternative motion has the practical effect of dismissing all of the claims in the first amended complaint. Although it appears that plaintiff is entitled to gain a dismissal of all of the claims in the first amended complaint through the filing of a notice alone, plaintiff's submissions will be treated as a motion to dismiss.

         Whether to grant or deny a motion for voluntary dismissal under Rule 41(a)(2) falls within the sound discretion of the district court. Protocomm Corp. v. Novell, Inc., 171 F.Supp.2d 459, 470-71 (E.D. Pa. 2001) (citing Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991), and Ferguson v. Eakle, 492 F.2d 26, 28 (3d Cir. 1974)). "The purpose of the grant of discretion under Rule 41(a)(2) . . . is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions." Charles A. Wright & Arthur R. Miller, 9 Fed. Prac. & Proc. Civ. § 2364 nn.18-19 (3d ed. 2016) (collecting some of the "many, many cases" so holding). When considering dismissal under Rule 41(a)(2), "it becomes necessary to decide the presence or extent of any prejudice to the defendant." Ferguson, 492 F.2d at 29. A plaintiff's decision to seek dismissal of his claims with or without prejudice creates a distinct analysis the court must undertake. Id.

         Where the dismissal will be without prejudice, a district court must consider various factors such as: (1) the excessive and duplicative expense of a second litigation; (2) the effort and expense incurred by the defendant in preparing for trial; (3) the extent to which the current suit has progressed; (4) the plaintiff's diligence in bringing the motion to dismiss and explanation thereof; and (5) the pendency of a dispositive motion by the nonmoving party in deciding the motion. Bezarez v. Pierce, 107 F.Supp.3d 408, 415 (D. Del. 2015) (citing Schandelmeier v. Otis Div. of Baker-Schandelmeier, 143 F.R.D. 102, 103 (W.D. Pa. 1992)); Dodge-Regupol, Inc. v. RB Rubber Products, Inc., 585 F.Supp.2d 645, 652 (M.D. Pa. 2008); Maxim Crane Works, LP v. Smith Transp. Servs., 2016 U.S. Dist. LEXIS 95598, at *8 (W.D. Pa. July 22, 2016) (citing Young v. Johnson & Johnson Corp., 2005 U.S. Dist. LEXIS 26232, at *2-3 (E.D. Pa. Nov. 2, 2005) (listing the above factors to consider and adding whether the dismissal is designed to evade federal jurisdiction)); Maleski v. DP Realty Trust, 162 F.R.D. 496, 498 (E.D. Pa. 1995) (same).

         The court concludes that these factors weigh in favor of plaintiff's motion to dismiss without prejudice. This case is in its infancy in that it has not progressed to the point where the pleadings are closed. And although defendants have filed a motion to strike plaintiff's entire first amended complaint pursuant to Rule 12(f), and responded to the motions filed by plaintiff, there has been little progress towards a comprehensive resolution of the litigation.[3] In other words, it cannot be said that defendants have made significant efforts or incurred significant expenses in preparing the case for trial. In addition, plaintiff diligently pursued his motion to dismiss and appears merely to want to proceed on state law claims. His purpose in doing so is to ...


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