United States District Court, W.D. Pennsylvania, Pittsburgh.
GEMMA L. PIERCHALSKI, JOSEPH B. ABRAHAM, HER HUSBAND; Plaintiffs,
SAMUEL SANDERS, D. PARTHENIA COGDELL, Defendants,
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge
before the court is Plaintiffs Gemma L. Pierchalski and
Joseph B. Abraham's motion to remand to state court (ECF
No. 4). The motion is fully briefed and ripe for disposition.
(ECF Nos. 4, 8, 9, 17). For the reasons that follow, it is
respectfully recommended that the motion be granted and this
case be remanded to the Allegheny County Court of Common
civil action was initiated by writ of summons on or about
March 19, 2018 in the Allegheny County Court of Common Pleas,
Pennsylvania. On November 5, 2018, counsel for Plaintiffs
sent a demand letter to Defendants' counsel outlining the
factual allegations of their claims and demanding $300, 000.
On November 9, 2018, Defendants served Plaintiffs with a rule
to file complaint, making the response to that motion due
December 13, 2018. Prior to a response or complaint being
filed in state court, Defendants noticed removal of this
action on November 15, 2018. As of this report, it is
undisputed that no complaint has been filed in state court.
Plaintiffs now move to remand this case to state court
pursuant to 28 U.S.C. § 1447. For the reasons that
follow, it is respectfully recommended that Plaintiffs'
motion be granted.
statutes 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).
The party seeking removal bears the burden of proving that
the case is property removed. Samuel-Bassett v. KIA
Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). The
removal statute provides that a notice of removal of a civil
action or proceeding from state court to federal court must
be “filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading[.]” 28 U.S.C. § 1446(b)(1). In
Sikirica v. Nationwide Ins. Co., 416 F.3d 214 (3d
Cir. 2005), the Court of Appeals for the Third Circuit held
that “a writ of summons alone can no longer be the
‘initial pleading' that triggers the 30-day period
for removal” under Section 1446(b). Therefore, removal
is not proper until a complaint has been filed in state
court. Here, it is undisputed that no complaint
has yet been filed in state court, therefore the court must
remand this case to state court. While the court's
analysis need go no further, Defendants' arguments
against remand will be addressed.
argue that Plaintiffs' demand letter setting forth the
factual allegations of their claims and an itemization of
damages exceeding the $75, 000 threshold triggered the
removal process. Defendants cite to no legal authority that a
writ of summons in conjunction with a demand letter is an
“initial pleading” under Section 1446(b)
post-Sikirica. A finding that a writ of summons and
a demand letter constitutes an “initial pleading”
under Section 1446(b) would defeat the obvious rationale
underlying Sikirica's holding and
Defendants' argument is rejected.
also argue that diversity jurisdiction exists in this case
and therefore removal is appropriate. This argument puts the
proverbial cart before the horse: that Plaintiffs seek an
amount exceeding the jurisdictional threshold or whether
diversity citizenship exists is not yet ripe for this court
to consider, as removal was procedurally inappropriate.
further argue that remanding the case would cause undue
delay, because a remand would force Plaintiff to file a
complaint in state court, and the Defendants would again seek
removal of the action to federal court. This argument is
unequivocally rejected, as Defendants - not the Plaintiffs or
the court in its adherence to the Federal Rules of Civil
Procedure - are the sole source of the delay. Instead of
waiting for the complaint to be filed, or waiting for
Plaintiffs to respond to the rule to file a complaint in
state court around December 13, 2018 by virtue of the rule to
file a complaint, Defendants, against the weight of legal
authority from this circuit, decided to seek removal on the
basis of the writ of summons and demand letter alone and
issued the notice of removal on November 15, 2018. Arguably,
Defendants need have only waited one month for Plaintiffs to
file a complaint in state court to properly remove it.
Defendants cannot now in good faith argue undue delay from
their own failure to follow the Federal Rules of Civil
Procedure and applicable legal authority.
also argue that the demand letter was an “other
paper” under Section 1446(b) which triggered the
removal process. Defendants' argument fails, as Section
1446(b) does not contemplate that an “other
paper” exchanged prior to the complaint being
filed or served triggers the 30-day removal period.
See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d
876, 885-86 (9th Cir. 2010) (a finding that a document
received before receipt of the initial pleading would
constitute an “other paper” and trigger the
removal process is “nonsensical.”); Chapman
v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir. 1992)
(“By its plain terms the statute requires that if an
‘other paper' is to trigger the thirty-day time
period of the [removal statute], the defendant must receive
the ‘other paper' only after [the defendant]
receives the initial pleading.”); Bracken v.
Dolgencorp, LLC, CV 18-4703, 2018 WL 6249715, at *5 n.
45 (E.D. Pa. Nov. 29, 2018) (“to constitute an
‘other paper' which would trigger the thirty-day
removal period, . . . the defendant must receive the paper
after the plaintiff files the complaint.”) (emphasis in
original); Rosenfield v. Forest City Enterprises,
L.P., 300 F.Supp.3d 674, 679 (E.D. Pa. 2018)
(correspondence exchanged between counsel prior to the filing
and service of a complaint was not an “other
paper” and did not trigger the thirty-day removal
while an order remanding the case “may require the
payment of just costs and any actual expenses, including
attorney's fees, incurred as a result of the removal[,
]” because Plaintiffs do not specifically seek these
costs and fees, it is not ...