United States District Court, E.D. Pennsylvania
plaintiff has before this court a motion to remand this
action to the Court of Common Pleas of Philadelphia County
under 28 U.S.C. § 1447(c).
has sued the defendants under state law for injuries suffered
from the insertion and removal of a Paraguard Intrauterine
Device. The plaintiff is a citizen of Florida while several
of the defendants are citizens of Pennsylvania.
events relevant to the pending motion all took place on the
same day. The complaint was filed in the state court on
August 16, 2019 at 10:06 a.m. The defendants, before they
were served, filed a notice of removal in this court at 1:55
p.m. on the basis of diversity of citizenship. All defendants
were served with a copy of the complaint at 2:15 p.m. At 4:11
p.m., the defendants filed their notice of removal on the
docket of the state court.
28 U.S.C. § 1441(a), a defendant may remove an action to
the federal court where the court has original jurisdiction
under 28 U.S.C. § 1332(a), that is where all plaintiffs
have diverse citizenship from all defendants and the amount
in controversy is in excess of $75, 000, exclusive of
interest and costs. See Exxon Mobil Corp. v.
Allapattah Services, Inc., 545 U.S. 546, 553
(2005). The defendant must file its notice of removal within
thirty days after receipt, through service or otherwise, of
the complaint or summons. See § 1446(b).
However, an exception precluding removal of a diversity case
exists under the forum defendant rule in § 1441(b)(2)
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 in which such action is brought.
28 U.S.C. § 1441(b)(2). Plaintiff argues that removal
was improper because several defendants are citizens of
Pennsylvania, the forum state.
Court of Appeals in Encompass Ins. Co. v. Stone
Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir.
2018) has held that removal by a forum defendant is allowed
under § 1441(b)(2) if removal to the federal court
occurs before the defendant has been served with the
complaint. The Court concluded that “[i]ts plain
meaning precludes removal on the basis of in-state
citizenships only when the defendant has been properly joined
and served.” Id. at 152. Defendants maintain
that they removed the action before they were served as
permitted in Encompass.
must also meet several other requirements for removal under
§ 1446(d) including the filing of a copy of the notice
of removal with the state court. It provides:
Promptly after the filing of such notice of removal of a
civil action the defendant or defendants shall give written
notice thereof to all adverse parties and shall file a copy
of the notice with the clerk of such State court, which shall
effect the removal and the State court shall proceed no
further unless and until the case is remanded.
28 U.S.C. § 1446(d).
counters that Encompass does not apply and that
remand to the state court is required because the defendants
were served with the complaint before a copy of the notice of
removal was filed in the state court. According to plaintiff,
the removal by a defendant is not effective under §
1446(d) until the state court has a copy of the removal
notice on its docket. It is undisputed that the defendants
were served before this event occurred.
Encompass, as noted, an in-state defendant may
remove a diversity action to the federal court if it does so
prior to the time it is served with the complaint. While the
Court of Appeals in passing referenced the notice of removal,
it discussed removal generally without considering all of its
requirements. It did not have before it any issue about the
filing of a copy of the removal notice in the state court and
did not mention § 1446(d).
§ 1446(d), the defendant must notify all adverse parties
in writing, must file a copy of the removal notice in the
state court, and must do so promptly after the filing of the
notice in the federal court. It is only after the filing of
the removal notice in the state court that “the State