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Doe v. Valley Forge Military Academy and College

United States District Court, E.D. Pennsylvania

July 15, 2019

JOHN DOE
v.
VALLEY FORGE MILITARY ACADEMY AND COLLEGE

          MEMORANDUM RE: MOTION TO REMAND

          BAYLSON, J.

         I. Introduction and Background

         This case involves claims for damages related to traumatic physical and psychological injuries that Plaintiff, John Doe, allegedly suffered while attending Defendant, Valley Forge Military Academy and College (“VFMAC”), in Pennsylvania.

         On April 17, 2019, Plaintiff, a resident of Ohio, filed a Complaint against VFMAC, a citizen of Pennsylvania, in the Court of Common Pleas of Philadelphia County, Pennsylvania (ECF 1, Notice of Removal Ex. A, “Compl.”). The Complaint alleges four Counts against VFMAC: (1) negligence; (2) negligent and intentional infliction of emotional distress; (3) negligent failure to rescue; and (4) negligence per se for failure to report suspected child abuse in violation of the Pennsylvania Child Protective Services Law.

         On April 19, 2019, VFMAC filed a Notice of Removal in this Court, citing 28 U.S.C. §§ 1441 and 1446, as well as Encompass Insurance Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018), as providing the bases for removal (ECF 1). Though the Notice of Removal states that Plaintiff is a resident of Ohio and that VFMAC is a citizen of Pennsylvania, the Notice does not expressly state that removal is proper on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. On the same date, VFMAC filed a Notice of Appearance in this Court (ECF 2).

         On April 22, 2019, VFMAC “sent, ” by facsimile, a copy of the Notice of Removal to the Prothonotary of the Court of Common Pleas and Plaintiff's counsel. (Resp. at 2; id. Ex. A.) On May 1, 2019, Plaintiff served the Complaint on VFMAC in accordance with Pennsylvania Rule of Civil Procedure 400. (Mot. at 7; id. Ex. C.) On May 10, 2019, VFMAC filed a copy of the Notice of Removal with the Prothonotary of the Court of Common Pleas. (Mot. Exs. C, E; Resp. Ex. C.) VFMAC filed two additional Notices of Appearance in this Court on the same date. (ECF 3, 4.)

         Also on May 10, VFMAC filed a partial Motion to Dismiss Count III of the Complaint- the negligent failure to rescue claim-for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) (ECF 5). In the same filing, VFMAC moved to strike the punitive damages cause of action from the Complaint pursuant to Rule 12(f). (Id.) The parties filed a Joint Stipulation, which the Court approved, to postpone Plaintiff's Response to the Motion to Dismiss pending the Court's decision on the instant Motion to Remand (ECF 7).

         Plaintiff filed the Motion to Remand on May 20, 2019 (ECF 6, “Mot.”). The Motion to Remand argues that removal is improper for several reasons. First, Plaintiff argues that the Notice of Removal is procedurally defective because it does not contain a short and plain statement of the basis for removal, as required by 28 U.S.C. § 1446(a). (Id. at 9.) Second, Plaintiff contends that the forum defendant rule in 28 U.S.C. § 1441(b)(2) precludes removal. Plaintiff argues that VFMAC, a citizen of the forum state (Pennsylvania), was served with the Complaint before removal became effective on May 10, 2019: the date on which VFMAC filed a copy of the Notice of Removal with the Court of Common Pleas. (Id. at 11.) Third, Plaintiff argues that this Court lacks federal question jurisdiction over this case because Plaintiff brings only state claims arising from events that took place in Pennsylvania. (Id. at 18-20.) Finally, Plaintiff contends that VFMAC's removal strategy violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. (Id. at 20-21.)

         On June 7, 2019, VFMAC filed a Response in opposition to the Motion to Remand (ECF 8, “Resp.”). VFMAC contends that removal does not implicate the forum defendant rule because VFMAC was served with the Complaint after it sent a copy of the Notice of Removal to the Court of Common Pleas on April 22, 2019. (Id. at 2-5.) VFMAC argues that even if it had not sent a copy of the Notice to the Court of Common Pleas before it was served, removal would still be proper. (Id. at 3.) According to VFMAC, the rules governing removal procedures make it “abundantly clear” that removal is effected when a notice of removal is filed in federal court, not when a copy of the notice is provided to the state court. (Id. at 3-4, 5.) VFMAC also seeks to refute Plaintiff's contention that this Court lacks original subject matter jurisdiction over this matter. While VFMAC concedes that there is no federal question jurisdiction, VFMAC avers that this Court has jurisdiction on the basis of diversity of citizenship. (Id. at 3 n.1.) VFMAC does not respond to Plaintiff's argument regarding due process.

         For the reasons discussed below, Plaintiff's Motion to Remand will be GRANTED.

         II. Legal Standard

         A. Removal

         Under 28 U.S.C. § 1441(a), a civil action filed in a state court may be properly removed if the federal court would have had original jurisdiction over the action. District courts “have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive interests and costs, and is between [ ] citizens of different states.” Id. § 1332(a)(1); McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006).[1] Section 1332 requires complete diversity, meaning that “every plaintiff must be of diverse state citizenship from every defendant.” In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006); see also GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29, 34 (3d Cir. 2018). Here, there is diversity jurisdiction because Plaintiff is a citizen of Ohio, Defendant is a citizen of Pennsylvania, and Plaintiff avers that the amount-in-controversy exceeds $75, 000. (See Resp. at 3 n.1.)[2]

         Where the sole basis for federal jurisdiction is diversity of citizenship under § 1332, as is the case here, the forum defendant rule precludes removal under 28 U.S.C. § 1441(b)(2). The forum defendant rule provides that “[a] civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State ...


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