United States District Court, W.D. Pennsylvania
M. MARINKOVIC, Plaintiff,
MERCER COUNTY TAX CLAIM BUREAU, et al, Defendants.
STEWART CERCONE UNITED STATES DISTRICT JUDGE.
Marinkovic ("plaintiff") commenced this civil
action in the Court of Common Pleas of Mercer County on
January 4, 2016. 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.
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.
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.
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.
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.
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. Absent diversity of citizenship,
federal-question jurisdiction is required to support removal.
Id. at 392.
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.
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.
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
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.
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).
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.
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.
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.
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)
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. 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 ...