United States District Court, E.D. Pennsylvania
Austin McHugh, United States District Judge
a pro se state court action commenced by the filing
of a Praecipe for a Writ of Summons. After filing the action,
Plaintiff served pre-complaint discovery on Defendant and
served a subpoena on the Social Security Administration
seeking Defendant's employment records. The United States
has assumed the defense and removed the case to this Court
under the federal officer removal statute, 28 U.S.C. §
1442, alleging that the Defendant is a federal employee.
Plaintiff now moves to remand.
is correct that a state court summons in the absence of a
complaint does not provide a basis for removal. Consequently,
this action is not removable in its entirety. But the
Government is equally correct that § 1442 (d)(1) defines
“civil action” broadly, and this allows removal
of discrete portions of state court proceedings that involve
the issuance of subpoenas or court orders to obtain discovery
in a case against a federal officer. I will therefore keep
jurisdiction over the enforceability of Plaintiff's
subpoena and discovery requests, but otherwise remand because
removal of the principal case was premature.
Justin Serfass initiated this action on January 11, 2019 by
filing a Praecipe for a Writ of Summons against Defendant
Mayra Oliveras-Smith in the Court of Common Pleas of
Northampton County. On February 4, 2019, Plaintiff served
Defendant with pre-complaint interrogatories. The
interrogatories seek information about her employment
relationship with Mr. Serfass, including whether she had
taken any adverse employment actions against Plaintiff, and
inquire about her awareness of several federal statutes. On
February 25, 2019, Defendant received a notice of intent to
serve a subpoena upon the Social Security Administration
(SSA) seeking her employment records. Given the nature of
these discovery requests, one can infer that this is an
action involving Plaintiff's employment with the Social
Security Administration. On February 25, 2019, the United
States Attorney removed the action to this Court pursuant to
the federal officer removal statute, 28 U.S.C. § 1442.
When Plaintiff failed to pursue the matter after removal, he
was ordered to show cause why the case should not be
dismissed for lack of prosecution. He responded two days
later with this motion to remand.
courts of limited jurisdiction, federal courts are required
to scrutinize removal. Removal and remand are generally
governed by 28 U.S.C. §§ 1441, 1446, and 1447.
These statutes are strictly construed against removal with
all doubts resolved in favor of remand. See Steel Valley
Auth. v. Union Switch & Signal Div., 809 F.2d 1006,
1010 (3d Cir. 1987). “If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c). The burden of proving proper removal
falls on the defendant, in this case the Government.
Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219
(3d Cir. 2005).
addition to the general provisions governing removal, a
separate provision pertains to cases involving the federal
government and its employees. 28 U.S.C. § 1442(a)(1)
allows any civil action to be removed to federal district
court when any federal officer or person acting under that
officer, is sued in an official or individual capacity, in
relation to any act under the color of such office. Of
particular relevance here is § 1442(d)(1):
The terms “civil action” and “criminal
prosecution” include any proceeding (whether or not
ancillary to another proceeding) to the extent that in such
proceeding a judicial order, including a subpoena for
testimony or documents, is sought or issued. If removal is
sought for a proceeding described in the previous sentence,
and there is no other basis for removal, only that proceeding
may be removed to the district court.
28 U.S.C. § 1442(d)(1). “Unlike the general
removal statute, the federal officer removal statute is to be
“broadly construed” in favor of a federal
forum.” In re Commonwealth's Motion to Appoint
Counsel Against or Directed to Def. Ass'n of Phila.,
790 F.3d 457, 466-67 (3d Cir. 2015), as amended (June 16,
Government contends that Plaintiff's discovery requests
suffice to render the action generally removable. I disagree.
In Murphy Bros. v. Michetti Pipe Stringing, Inc.,
the Supreme Court held that “a named defendant's
time to remove is triggered by simultaneous service of the
summons and complaint, or receipt of the complaint,
‘through service or otherwise,' after and apart
from service of the summons, but not by mere receipt of the
complaint unattended by any formal service.” 526 U.S.
344, 347-48 (1999) (citing 28 U.S.C. § 1446(b)). In
Sikirica v. Nationwide Ins. Co., the Third Circuit
relied on Murphy Bros. to hold that “a writ of
summons alone can no longer be the ‘initial
pleading' . . . under the first paragraph of 28 U.S.C.
§ 1446(b).” 416 F.3d 214, 223 (3d Cir. 2005).
establishes a clear test. It “has been interpreted in
this District to mean that removal is not proper until a
complaint has been served on the defendants.” In re
Avandia Mktg., Sales Practices & Prod. Liab. Litig.,
941 F.Supp.2d 568, 571 (E.D. Pa. 2013) (Rufe, J.) (citation
and internal quotation omitted); accord In re Diet Drugs
Prod. Liab. Litig., 2012 WL 4757693, at *3 (E.D. Pa.
Oct. 5, 2012) (Bartle, J.) (“Our Court of Appeals in
Sikirica . . . has adopted a bright line rule
consistent with its reading of the Supreme Court's
opinion in Murphy Brothers. In sum, it is necessary
that before removal takes place the complaint at the very
least must have been filed.”).
In re Avandia particularly instructive as it
considered an analogous factual situation. There, a
state-court writ of summons was filed with accompanying
pre-complaint interrogatories, which defendants argued
provided sufficient notice that plaintiff's claims would
fall exclusively within federal jurisdiction under ERISA. 941
F.Supp.2d at 570. Although the court appreciated that once
complaints were filed the actions would almost certainly be
removable, under the test established by Sikirica it
could not presume the existence of jurisdiction. Id.
at 571 (citing In re Diet Drugs, 2012 WL 4757693, at
*3). It therefore concluded that the notice of removal was
too early under § 1446(b)(1) because “[t]he
complaint is the operative document for removal.”
in this case, the content of Plaintiff's discovery
requests and subpoena strongly suggest that this action will
ultimately be subject to removal. But bright line tests
prioritize clarity over efficiency, and under
Sikirica the basis upon which a district court
asserts jurisdiction must be explicit rather than implicit.
does not end the inquiry. Although I reject the
Government's position that Plaintiff's discovery
requests may be used as interpretive aids to divine the
nature of his claim, the statute is clear that such requests
are themselves separately subject to federal jurisdiction. As
set forth above, under §1442(d)(1), a subpoena or
request for a court order requiring production of witnesses
or documents qualifies as a “civil action.”
Plaintiff's subpoena falls within the literal terms of
the statute. As to Plaintiff's interrogatories, such
discovery requests are not self-executing, and to compel
answers Plaintiff will necessarily require a “judicial
order” from the state court. As the Supreme Court held
in the related context of a federal statute that authorized
removal of state criminal prosecutions of federal officials,
the goal of Congress is to “maintain the supremacy of
the laws of the United States by safeguarding officers and
others acting under federal authority against peril of
punishment for violation of state law.” Colorado v.
Symes, 286 U.S. 510, 517 (1932). I will therefore
maintain jurisdiction over both the enforceability of the
subpoena and the pending interrogatories.
is, however, no independent basis on the record before me for
removal of Plaintiff's claim in its entirety. Under such
circumstances, the second sentence of §1442(d)(1) makes
clear that a ...