United States District Court, M.D. Pennsylvania
M. MUNLEY United States District Judge
the court for disposition is Plaintiff Salvatore Russo's
(hereinafter “plaintiff”) motion to remand this
case to the Pike County, Pennsylvania Court of Common Pleas.
(Doc. 3). For the reasons that follow, the court will grant
complaint alleges that on September 19, 2014, plaintiff
entered Defendant Wal-Mart Stores East, L.P.'s
(hereinafter “Wal-Mart”) Milford, Pennsylvania
store as a business invitee. (Doc. 1, Ex. D (hereinafter
“Compl.”) ¶ 5). While in the store,
plaintiff sustained injuries after he slipped and fell on
spilled dog food left on the floor. (Compl. ¶ 6).
on these factual allegations, plaintiff filed a praecipe for
writ of summons in the Pike County, Pennsylvania Court of
Common Pleas on March 23, 2016. (Doc. 1, Ex. A). On May 11,
2016, he filed a one-count negligence complaint against
Wal-Mart. (Compl.). On March 13, 2017, Wal-Mart filed a
notice of removal. (Doc. 1). On April 6, 2017, plaintiff
filed the instant motion to remand. (Doc. 3). The parties
have briefed their respective positions and the matter is
ripe for disposition.
law provides that defendants may remove a civil action filed
in a state court if the federal court would have had original
jurisdiction over the action. 28 U.S.C. § 1441(a).
Defendants “asserting federal jurisdiction in a removal
case bears the burden of showing ‘that the case is
properly before the federal court.'” Judon v.
Travelers Prop. Cas. Co. of Am., 773 F.3d 495, 500 (3d
Cir. 2014) (quoting Frederico v. Home Depot, 507
F.3d 188, 193 (3d Cir.2007)). Defendants must also establish
that all pertinent procedural requirements for removal have
been met. Shadie v. Aventis Pasteur, Inc., 254
F.Supp.2d 509, 514 (M.D. Pa. 2003) (citing Boyer v.
Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).
“Because lack of jurisdiction would make any decree in
the case void and the continuation of the litigation in
federal court futile, the removal statute should be strictly
construed and all doubts resolved in favor of remand.”
Abels v. State Farm Fire & Cas. Co., 770 F.2d
26, 29 (3d Cir. 1985) (citations omitted).
remove a case from state to federal court, a defendant must
simply file a notice of removal with the federal district
court for the district and division in which the state court
action is pending. 28 U.S.C. § 1446(a). A
defendant's notice of removal must “be filed within
30 days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(b)(1). Here, the parties
agree that Wal-Mart filed its notice of removal more than
thirty (30) days after receipt of the initial pleading.
defendant may file a notice of removal more than thirty (30)
days after receipt of the initial pleading, however, under
certain circumstances. Specifically:
Except as provided in subsection (c), if the case stated by
the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
28 U.S.C. § 1446(b)(3). Under subsection (c), a case may
not be removed under these circumstances on the basis of
diversity jurisdiction “more than 1 year after
commencement of the action, unless the district court finds
that the plaintiff has acted in bad faith in order to prevent
a defendant from removing the action.” 28 U.S.C. §
instant matter, plaintiff filed a motion to remand under 28
U.S.C. § 1447(c), alleging that Wal-Mart's notice of
removal is untimely, and therefore, procedurally defective.
Wal-Mart, however, argues that it filed its notice of
removal: (1) within thirty (30) days from which it could
first be ascertained that the case became removable; and (2)
within one (1) year from the commencement of the action.
After a careful review, we agree with plaintiff.
stated above, a case is removable when it can “first be
ascertained” that the case is subject to federal
diversity jurisdiction. See 28 U.S.C. §
1446(b)(3). The party attempting removal bears the burden of
proof “to assess and ascertain the amount in
controversy within the 30-day time limit for removal provided
in Section ...