United States District Court, E.D. Pennsylvania
ANNE M. DIXON, Plaintiff,
ALLSTATE INSURANCE COMPANY et al., Defendants.
E.K. PRATTER United States District Judge.
Dixon moves to remand this action to the Philadelphia Court
of Common Pleas. For the reasons that follow, the Court will
grant Ms. Dixon's motion.
January 21, 2017, Ms. Dixon filed a complaint in the
Philadelphia Court of Common Pleas against (i) Allstate
Insurance Company, Tracey Miller, Wendy McClure, Longacre
Appraisal and Adjustment Service, Inc., Karen Washko, and
Laura Kerns (the “Allstate Defendants”), and (ii)
Steven Feinstein and Zenstein Ballard, P.C. (the
“Zenstein Defendants”). Ms. Dixon alleged
violations of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961 et seq.
(“RICO”), and the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.S. § 201-1
et seq., arising out of Ms. Dixon's dealings
with the Allstate and Zenstein Defendants in connection with
previous litigation. On February 6, 2017, the Allstate
Defendants filed a Notice of Removal. The Notice of Removal
expressly states that it was filed on behalf of the Allstate
Defendants only and that the Zenstein Defendants had not been
served with process at the time the Notice was filed. One
week later, the Allstate and Zenstein Defendants filed
separate motions to dismiss. After Ms. Dixon failed to timely
respond to the Allstate and Zenstein Defendants' motions,
the Court ordered Ms. Dixon to respond. Thereafter, on March
8, 2017, Ms. Dixon filed a motion for summary remand, which
the Allstate and Zenstein Defendants oppose.
1441(a) of 28 U.S.C. authorizes a defendant to remove
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). A defendant
seeking removal must file a notice of removal with the
district court within 30 days of plaintiff's service of
the complaint. 28 U.S.C. § 1446(a), (b). “When a
civil action is removed solely under section 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). “The defendants bear the burden
of establishing removal jurisdiction and compliance with all
pertinent procedural requirements.” Ramos v.
Quien, 631 F.Supp.2d 601, 606 (E.D. Pa. 2008) (citations
omitted). Because federal courts are courts of limited
jurisdiction, the federal removal statutes are to be strictly
construed. Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108-09 (1941); Boyer v. Snap-on Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990). “[A]ll
doubts should be resolved in favor of remand.” In
re Briscoe, 448 F.3d 201, 217 (3d Cir. 2006) (citation
defendant has removed an action, 28 U.S.C. § 1447
authorizes a plaintiff to seek a remand to state court. A
district court can remand a case for lack of subject matter
jurisdiction or for a defect in the removal procedure.
PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.
1993). A motion to remand based on a procedural defect in the
notice of removal must be made within 30 days of the filing
of the notice of removal. 28 U.S.C. § 1447(c). A motion
for remand premised on lack of subject matter jurisdiction
can be made at any time before final judgment. 28 U.S.C.
Dixon argues that the Allstate Defendants did not properly
remove this action because the Zenstein Defendants did not
join in or consent to the removal of this action, even though
the Zenstein Defendants were served with the state court
complaint on February 2, 2017, four days before the Allstate
Defendants filed their Notice of Removal. The Allstate
Defendants respond that their failure to obtain the Zenstein
Defendants' consent is excused because, after exercising
what they describe as reasonable diligence, they determined
that the Zenstein Defendants had not been served. The
Zenstein Defendants take the position that they did consent
to removal because counsel for the Zenstein Defendants
discussed removal with counsel for the Allstate Defendants
and “[t]here was an agreement reached as to removal,
who was going to remove it and when.” Zenstein Def. Br.
Opp. Remand 2 (Doc. No. 11). Notwithstanding these
after-the-fact protestations, the Court will grant Ms.
Dixon's motion for remand because (i) the Allstate
Defendants have not met their burden to establish compliance
with the applicable removal procedures, and (ii) the Zenstein
Defendants' alleged oral consent for removal does not
satisfy the § 1446 procedural requirements.
Relevant Facts Recounted
Dixon filed her state court complaint on January 21, 2017.
The complaint was served on the Allstate Defendants on
January 23, 2017. On January 27, 2017, counsel for the
Allstate Defendants allegedly spoke with Mr. Feinstein (one
of the defendants), who stated that neither he nor his firm,
Zenstein Ballard, had been served with the complaint. The
Zenstein Defendants were, however, served with Ms.
Dixon's complaint on February 2, 2017. The state court
record did not include the information concerning the
February 2 service on the Zenstein Defendants until February
15, 2017. The Allstate Defendants filed their Notice of
Removal on February 6, 2017.
Allstate Defendants' Argument
Allstate Defendants' argument opposing remand is based
entirely on the rule set forth in Laurie v. Nat'l
R.R. Passenger Corp., No. 01-6145, 2001 WL 34377958
(E.D. Pa. Mar. 13, 2001), that when removing an action to
federal court “a defendant is required to obtain
consent only from those codefendants who it knew or should
have known, in the exercise of reasonable diligence, had been
served.” Id. at *1 (citing Milstead Supply
Co. v. Cas. Ins. Co., 797 F.Supp. 569, 573 (W.D. Tex.
1992)). District courts in this Circuit are split on whether
to follow the Laurie inclusion of a
“reasonable diligence” exception into what is now
a statutory consent requirement. Compare Cacoilo v.
Sherwin-Williams Co., 902 F.Supp.2d 511, 522 (D.N.J.
2012) (holding “that the exercise of reasonable
diligence in attempting to obtain consent of all codefendants
prior to removal is not the controlling standard with respect
to the rule of unanimity”); Leuzzi v. Dollar Tree
Stores Inc., No. 05-4814, 2005 WL 2972982, at *1-*2
(E.D. Pa. Nov. 4, 2005) (finding the fact that a state court
docket did not reflect proof of service did not excuse
removing defendant from obtaining consent of co-defendants
where removing defendant knew the identity of its
co-defendants at time of removal); Johnson v. Vertis,
Inc., No. 02-6711, 2002 WL 31388817, at *1 (E.D. Pa.
Oct. 23, 2002) (refusing to excuse failure to obtain consent
of co-defendants prior to removal based on an alleged delay
in proof of service appearing on the state court docket)
with Greco v. YellowPages.com, LLC, No. 09-1502,
2009 WL 3571897, at *1 (M.D. Pa. Oct. 26, 2009) (embracing
Laurie as correctly stating the applicable law);
DiLoreto v. Costigan, Nos. 08-989, 08-990, 2008 WL
4072813, at *4 (E.D. Pa. Aug. 29, 2008) (quoting the
Laurie rule approvingly).
the Court need not decide whether or not the exercise of
reasonable diligence excuses a removing defendant from
obtaining the consent of its co-defendant because the