United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
February 16, 2018, plaintiffs Antonello Boldrini,
Michael J. Pega, Jr., and Daniele A. Boldrini, filed, pro
se, a Notice of Removal, (Doc. 1), seeking to remove a
case which was filed in the Court of Common Pleas of Luzerne
County, Pennsylvania, namely, PEGA Real Estate Trust Notice
of Audit filed February 17, 2017, Docket No. 4009-1634,
regarding the cases of Estate of Mirella Pega and the Estate
of Giuseppina Boldrini, Docket Nos. 4004-0411 and 4009-1357.
Pending before the court is the report and recommendation of
Judge Saporito, (Doc. 8), recommending that
plaintiffs' action be remanded to state court pursuant to
28 U.S.C. §1447(c) for lack of subject matter
jurisdiction. After being granted extensions of time,
plaintiffs filed objections to Judge Saporito's report on
April 20, 2018. (Doc. 35). For the following reasons, the
report and recommendation is ADOPTED,
plaintiffs' action will be REMANDED to
state court, and plaintiffs' objections will be
STANDARD OF REVIEW
objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review de
novo those portions of the report to which objections
are made. 28 U.S.C. §636(b)(1): Brown v.
Astrue. 649 F.3d 193. 195 (3d Cir. 2011). Although the
standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and
the court may rely on the recommendations of the magistrate
judge to the extent it deems proper. Rieder v.
Apfel. 115 F.Supp.2d 496. 499 (M.D.Pa. 2000) (citing
United States v. Raddatz. 447 U.S. 667. 676 (1980)).
those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good
practice, "satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72(b). advisory committee
notes; see also Univac Dental Co. v. Dentsply Intern..
Inc.. 702 F.Supp.2d 465.469 (M.D.Pa. 2010) (citing
Henderson v. Carlson. 812 F.2d 874. 878 (3d Cir.
1987) (explaining judges should give some review to
every report and recommendation)). Nevertheless, whether
timely objections are made or not, the district court may
accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. $636(b)(1): Local Rule 72.31.
Saporito correctly indicates that since plaintiffs were not
defendants in the underlying actions filed in state court,
this federal court lacks subject matter jurisdiction over the
removed action. Judge Saporito states that "there is
simply no statutory authorization for a plaintiff, the party
who chose to initiate litigation in the state forum, to
remove his own action to federal court." (Doc. 8 at 2-3)
(citations omitted). Judge Saporito also points out that
since the issue in this case is a jurisdictional defect in
removal, not a procedural defect, the court can sua
sponte remand the case to state court.
1441 (a) of Title 28 of the United States Code provides that
"any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant... to the
district court of the United States." At all times this
removal statute should be "strictly construed against
removal and all doubts should be resolved in favor of
remand." Steel Vallev Auth. v. Union Switch and
Signal Div.. 809 F.2d 1006. 1010 (3d Cir. 1987).
"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 should be resolved in favor of
remand." Abels v. State Farm Fire & Cas.
Co.. 770 F.2d 26. 29 (3d Cir. 1985).
Oravic v. Target Corporation, 2017 WL 511250, *1 (M.D.Pa.
Feb. 8, 2017), the court explained:
Federal courts, being courts of limited jurisdiction, have a
continuing duty to satisfy themselves of jurisdiction before
addressing the merits of a case. Packard v. Provident
Nat'l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993). Moreover,
federal courts have an obligation to address issues of
subject matter jurisdiction sua sponte. Zambelli
Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d Cir.
2010) (citation omitted); Shaffer v. GTE North, Inc., 284
F.3d 500, 502 (3d Cir. 2002).
In the removal context, a district court has the
authority-indeed the obligation-to remand a case sua
sponte for lack of subject matter jurisdiction. 28
U.S.C. §1447(c) ("If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded."); see
Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742,
750 (3d Cir. 1995) ("[Section 1447(c)] allows and indeed
compels a district court to address the question of
jurisdiction, even if the parties do not raise the
issue."). Following Third Circuit law, we strictly
construe the removal statutes against removal and resolve all
doubts in favor of remand. Steel Valley Auth. v. Union Switch
& Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
are attempting to challenge a Notice of an Audit filed in
state court regarding two estates, namely, Estate of Mirella
Pega and the Estate of Giuseppina Boldrini. Plaintiffs allege
that PEGA Real Estate Trust and the other named defendants in
their petition for removal have "since 2004 purposely
knowingly and in conspiracy misused Racketeering pursuant to
Pa. 18 C.S.A. [§]911(h)(1)(iii) - 'the altar of the
due process' to deprive all the plaintiffs of their
property, liberty and life, allegedly causing the death of
Giuseppina Boldrini." Plaintiffs also state that their
petition for removal was based upon their constitutional
right to equal protection under the law.
plaintiffs' contentions in their objections that Judge
Saporito erred regarding the correct basis of their petition
for removal, at bottom, plaintiffs are not defendants in the
underlying state court actions which they seek to remove
depriving this federal court of subject matter jurisdiction.
Thus, as Judge Saporito correctly points out in his report,
the issue here is whether this court has jurisdiction
pursuant to the removal statute, 28 U.S.C. §1441. As
support for his finding that this court lacks subject matter
jurisdiction, Judge Saporito cites to Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 103, 61 S.Ct. 868 (1941), in
which the Supreme Court affirmed the decision of the Fifth
Circuit that "the plaintiff in the state court was not a
'defendant' within the meaning of section 28 of the