Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bolus v. IAT Insurance Group

United States District Court, E.D. Pennsylvania

July 9, 2019

ROBERT C. BOLUS, SR. and BOLUS TRUCK PARTS AND TOWING, INC. T/A BOLUS ENVIRONMENTAL GROUP, Plaintiffs,
v.
IAT INSURANCE GROUP T/A HARCO NATIONAL INSURANCE COMPANY; BRADLEY DAVENPORT and MOUNT POCONO TRANSPORTATION, INC., Defendants.

          MEMORANDUM

          CHAD F. KENNEY, JUDGE

         Plaintiffs' suit arises from nonpayment and allegedly defamatory and fraudulent statements by Defendants after Plaintiffs provided environmental cleanup services following a diesel spill caused by Defendant Mount Pocono Transportation, Inc.'s truck fire. Presently before the Court is Plaintiffs' Motion to Remand the Action to the Philadelphia Court of Common Pleas. ECF No. 5.

         I. Background

         Plaintiffs filed this suit in the Philadelphia County Court of Common Pleas on December 8, 2017. ECF No. 5 at ¶ 1. Defendants, IAT Insurance Group t/a Harco National Insurance Company and Bradley Davenport (collectively "IAT" or "Defendants"), assert that "Plaintiffs have vigorously litigated this action against IAT, filing a responsive pleading to IAT's New Matter, serving discovery requests on IAT, answering IAT's discovery requests, and deposing IAT's claims adjuster." ECF No. 8 at 3. On March 28, 2019, the claim against the non-diverse Defendant, Mt. Pocono Transportation, Inc. ("Mount Pocono"), was resolved when "IAT made a payment to the Plaintiffs for the amount of their invoice in exchange for Plaintiffs' dismissal of Mount Pocono from the litigation." ECF No. 8 at 3. Subsequently, the remaining Defendants filed a Removal Petition with this Court on April 18, 2019. ECF No. 1. On May 14, 2019, Plaintiffs filed a motion to remand the case and put forth three reasons why remand is appropriate. ECF No. 5.

         First, Plaintiffs argue that Defendants did not comply with 28 U.S.C. § 1446(a), in that, when they originally filed their Notice of Removal with the U.S. District Court Clerk, they did not include copies of all process, pleadings, and orders served upon Defendants. EFC No. 5 at 2-3. Second, Plaintiffs argue that the case should be remanded because Defendants did not file a copy of their petition for removal with the state court, as required by 28 U.S.C. § 1446(d). ECF No. 5 at 4. Finally, Plaintiffs argue that Defendants' Notice of Removal was untimely under 28 U.S.C. § 1446(c)(1), which precludes a case from being removed on the basis of jurisdiction more than one year after the commencement of the action, except where plaintiff has acted in bad faith in order to prevent a defendant from removing the action. ECF No. 5 at 5.

         Defendants responded to Plaintiffs' Motion to Remand, contending that, although Defendants did not comply with 1446(a) and include in their removal notice copies of all process, pleadings and orders served upon Defendants in the action, "omissions which are merely formal or modal do not affect the right to remove and may be subsequently remedied." ECF No. 8 at 5. Further, Defendants assert that the failure to promptly file a copy of the notice of removal with the prothonotary of the Philadelphia Court of Common Pleas is a procedural defect that does not affect whether removal was proper. ECF No. 8 at 6. Finally, Defendants argue that their removal is within the exception set forth in 28 U.S.C. § 1446(c), which tolls the one-year limitation for removal where plaintiff has acted in bad faith in order to prevent a defendant from removing the action. ECF No. 8 at 4.

         II. Standard

         "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000 ... and is between citizens of different States." 28 U.S.C § 1332(a). Pursuant to 28 U.S.C. § 1441(a):

Except as otherwise expressly provided by Act of Congress, 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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a). If a case is not initially removable, notice of removal may be filed within 30 days of the parties first becoming diverse. 28 U.S.C. § 1446(b)(3). However, the time period during which diversity cases can be removed is limited to "1 year after the 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).

         "[T]he party asserting federal jurisdiction in a removal case bears the burden of showing . . . that the case is properly before the federal court." Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007). "[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d. Cir. 1987) (citing Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985)). Courts may remand "[c]ases . . . under § 1447(c) for (1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure." PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993).

         III. Discussion

         A. Defendants' Failure to Comply with § 1446(a)

         A defendant's notice of removal must include "cop[ies] of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). When Defendants filed their Notice of Removal on April 18, 2019, Defendants failed to attach such exhibits required by § 1446(a). ECF No. 5 at 3. However, as Defendants argue, "[o]missions which are merely formal or modal do not affect the right to remove and may be subsequently remedied." Efford v. Milam, 368 F.Supp.2d 380, 383 (E.D. Pa. 2005) (citations omitted). "Indeed, the majority of Circuit Courts addressing the issue have held that the failure to attach process from the original state court proceeding ... to the notice of removal, is a de minimus procedural defect that is curable after removal." King v. Mansfield Univ. of Pennsylvania, No. 1:15-cv-0159, 2015 WL 4647637, at *4 (M.D. Pa. Aug. 5, 2015) (citations omitted). Therefore, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.