United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is the plaintiff's motion to remand.
(Doc. 2). Upon review, the plaintiff's motion will be
of relevant background, the plaintiff filed the instant
action on May 18, 2017, in the Court of Common Pleas of
Luzerne County alleging violations of Title VII of the Civil
Rights Act of 1964 and her rights under the First Amendment
through the Civil Rights Act, 42 U.S.C. §1983. By
petition dated June 12, 2017, the action was removed to this
court by the defendant, Pennsylvania Department of Health,
(“PDH”), only. (Doc. 1).
13, 2017, the plaintiff filed the instant motion to remand
the action to the state court. (Doc. 2). A brief in support
of the plaintiff's motion was filed on June 22, 2017.
(Doc. 5). On June 29, 2017, the defendant filed a brief in
opposition to the plaintiff's motion for remand. (Doc.
6). A reply brief was filed by the plaintiff on July 10,
2017. (Doc. 7).
plaintiff initially argues that the instant action should be
remanded because not all of the defendants have joined in the
removal in accordance with 28 U.S.C. §1446.
Specifically, the plaintiff argues that the defendant
Commonwealth of Pennsylvania and defendant Koszalka have not
joined in the removal.
28 U.S.C. §1446 provides, in pertinent part:
(a) A defendant or defendants desiring to remove any civil
action or criminal prosecution from a State court shall file
in the district court of the United States for the district
and division within which such action is pending a notice of
removal signed pursuant to Rule 11 of the Federal Rules of
Civil Procedure and containing a short and plain statement of
the grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.
(b) The notice of removal of a civil action or proceeding
shall be filed within thirty 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, or within thirty
days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is
addition to the requirements found in §1446, the
“rule of unanimity” provides that all defendants
must join in or consent to the removal of an action to
federal court. Ogletree v. Barnes, 851 F.Supp. 184,
186 (E.D.Pa. 1994) (citing Gableman v. Peoria, D. &
E. Ry. Co., 179 U.S. 335, 337 (1900); Chicago, R.I.
& P. Ry. Co. v. Martin, 178 U.S. 245 (1900)).
“Under this ‘rule of unanimity, ' all
defendants must join in the notice of removal or otherwise
consent to the removal within the thirty-day period set forth
in §1446(b) in order to perfect removal.”
are, however, some exceptions to the “rule of
unanimity”. One such exception is that
“defendants who have not been served with the initial
pleadings pursuant to 28 U.S.C. § 1446(b) at the time
the notice of removal is filed are [ ] not required to join
in the notice of removal or otherwise consent to
removal.” Id. Once an action has been properly
removed, “the subsequent service of additional
defendants who do not specifically consent to removal does
not require or permit remand on a plaintiff's
motion.” Lewis v. Rego Co., 757 F.2d 66, 69
(3d Cir.1985). In a situation where not all defendants have
been served at the time of removal, and therefore have not
joined in or consented to the removal, removal may
nevertheless be effective provided the notice of removal
alleges that the defendants not joining in the notice of
removal were not served in the state court action.
Id. at 68.
statutes governing removal are strictly construed against
removal and all doubts should be resolved in favor of remand.
Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d
Cir.1990) (quoting Steel Valley Auth. v. Union Switch and
Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987)).
case, to the extent that the plaintiff argues that the
Commonwealth of Pennsylvania was named as a separate party
but did not join in the removal, the defendant PDH argues
that there is no indication from the complaint that the
Commonwealth of Pennsylvania was named as a separate and
distinct party. The court agrees. The caption of the
plaintiff's complaint lists as defendants
“Pennsylvania Department of Health, Commonwealth of
Pennsylvania, Douglas P. Koszalka, Individually.”
Within the complaint, the plaintiff uses “Pennsylvania
Department of Health, Commonwealth of Pennsylvania”,
“Pennsylvania Department of Health” and
“Commonwealth of Pennsylvania” interchangeably,
with no single allegation directed toward the Commonwealth of
Pennsylvania as a separate and distinct party. Thus, there is
no indication from the plaintiff's complaint that the
Commonwealth of Pennsylvania was named as a separate or
respect to defendant Koszalka, the defendants' materials
indicate that as of the time of removal he had yet to be
served with the complaint. The plaintiff does not challenge
this fact in her reply brief, but argues only that defendant
PDH did not file a corrected notice of removal to include
defendant Koszalka, who was apparently served subsequent to
it is undisputed that defendant Koszalka had not been served
with the complaint at the time it was removed, as discussed
above, he was not required to expressly join in or consent to
the removal. However, despite this, defendant PDH's
notice of removal is defective because it does not provide
that defendant Koszalka was not joining in the notice of
removal because he had yet to be served in the state court