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Russo v. Wal-Mart Stores East, L.P.

United States District Court, M.D. Pennsylvania

May 8, 2017

SALVATORE RUSSO, Plaintiff
v.
WAL-MART STORES EAST, L.P., Defendant

          MEMORANDUM

          JAMES M. MUNLEY United States District Judge

         Before 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 the motion.

         Background

         Plaintiff's 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).

         Based 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.

         Legal Standard

         Federal 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).

         Discussion

         To 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.

         A 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 become removable.

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. § 1446(c)(1).

         In the 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.

         As 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 ...


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