United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Motion to Remand to the Court of Common Pleas of Pike County,
Pennsylvania (Doc. 3) is pending before the Court. Defendant
removed this matter from the Court of Common Pleas on June 4,
2019. (Doc. 1.) At the time, Plaintiff had served Defendant
with a Writ of Summons (Doc. 1 at 1 ¶¶ 1-2; Doc.
1-1 at 2), but no complaint had been filed. With its Notice
of Removal, Defendant linked the Court of Common Pleas Writ
of Summons with the action removed to this Court on November
22, 2017, docketed at 3:17-CV-2155. (Doc. 1 at 1 ¶¶
3-9.) More specifically, Defendant linked the filing of the
State court writ of summons and the subpoenas issued the same
day to Defendant's employees Brian Pulley and Kimberly
Kyack (requiring them to appear for depositions in the newly
filed case) with this Court's May 10, 2019, Order in
which the undersigned directed that Brian Pulley was not
required to sit for a deposition but, if Plaintiffs in that
action believed that his deposition was necessary after
reviewing Defendant's answers to interrogatories, they
could move the Court to take his deposition (Civ. A. No.
3:17-CV-2155 Doc. 77). (Doc. 1 ¶¶ 10, 12-13.)
U.S.C. § 1441 permits the removal of certain civil
actions originally filed in state court from the state to
federal court. The removal procedure is set forth in section
1446, which provides in relevant part as follows:
The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1). A "party who urges
jurisdiction on a federal court bears the burden of proving
that jurisdiction exists." Boyer v. Snap-on Tools
Corp., 913 F.2d 108, 111 (3d Cir.1990). "Removal
statutes are to be strictly construed against removal and all
doubts should be resolved in favor of remand." AS.
ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d
204, 208 (3d Cir.2014) (quoting Batoff v. State Farm Ins.
Co., 977 F.2d 848, 851 (3d Cir.1992) (internal
alterations and quotation marks omitted)).
Third Circuit, interpreting the United States Supreme Court
case Murphy Brothers, Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448
(1999), has held that the phrase "initial pleading"
in section 1446(b) means "the complaint" and that
"a writ of summons can no longer be the 'initial
pleading' that triggers the 30-day period for removal
under the first paragraph of 28 U.S.C. § 1446(b)."
Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 223
(3d Cir.2005); see also Laborde v. Mount Airy
Casino, Civ. A. No. 3:14-CV-02117, 2015 WL 2219454, at
*1-2 (M.D. Pa. May 11, 2015).
their Notice of Removal, Defendant acknowledged that "a
Writ of Summons itself may not be removable, [but] the filing
or service of additional documents can give rise to a right
to removal without the filing of an actual Complaint."
(Doc. 1 ¶ 11 (citing Conklin v. Kane, 634
Fed.Appx. 69 (3d Cir. 2015)).) In support of the pending
motion, Plaintiff asserts that the writ of summons and
related subpoenas do not support removal. (Doc. 4 at 4-12
(citations omitted).) While Defendant acknowledges in its
opposition brief that "Conklin may not be
controlling" in this case because it does not involve
the federal officer removal statute, 28 U.S.C. § 1442,
at issue there, Defendant nevertheless urges the Court to
find the circumstances of this case to present a similarly
unique scenario. (Doc. 5 at 5.) Defendant asserts that the
subpoenas issued to two of Defendant's employees on the
same day as the Writ of Summons was filed, one of which was
in contravention of this Court's discovery order in the
presumably related action, give rise to the right of removal.
(Id.) Defendant concludes that "Plaintiff
should not be permitted to avoid the Orders of this Court
simply by filing a Writ of Summons and sending Subpoenas
under the guise of pre-complaint discovery."
the authority cited above, including the need to strictly
construe the removal statutes and resolve all doubt in favor
of remand, AS. Ex rel. Miller v. SmithKline Beecham
Corp., 769 F.3d at 208, the Court concludes that
Defendant has not shown that removal is proper in this case.
The Court declines to find that Plaintiffs service of
subpoenas connected with the filing of the Writ of Summons
(see Doc. 1 ¶ 10) provides the kind of special
circumstance which would warrant retaining jurisdiction.
Rather, the Court concludes that remand of the matter to the
Court of Common Pleas of Pike County is appropriate. Once
remanded, Defendant will be in a position to file a praecipe
for a rule to file a complaint. See Pa. R. Civ. P.
basis of the foregoing discussion, the Court will grant
Plaintiff's Motion to Remand to the Court of Common Pleas
of Pike County, Pennsylvania (Doc. 3) and remand this matter
to the Court of Common Pleas of Pike County. An ...