United States District Court, E.D. Pennsylvania
ROBERT C. BOLUS, SR. and BOLUS TRUCK PARTS AND TOWING, INC. T/A BOLUS ENVIRONMENTAL GROUP, Plaintiffs,
IAT INSURANCE GROUP T/A HARCO NATIONAL INSURANCE COMPANY; BRADLEY DAVENPORT and MOUNT POCONO TRANSPORTATION, INC., Defendants.
F. KENNEY, JUDGE
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.
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.
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.
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.
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.
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. §
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.
Defendants' Failure to Comply with §
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,