United States District Court, E.D. Pennsylvania
E.K. Pratter United States District Judge
Joseph Smith contends that Defendant Robert Ponziano untimely
removed this action to federal court. Because Mr. Ponziano
filed a notice of removal well after thirty (30) days by
which he could have reasonably and intelligently concluded
that the action was removable, the Court will grant Mr.
Smith's Motion to Remand this action to the Court of
Common Pleas of Philadelphia County.
Smith brought this legal malpractice action against Mr.
Ponziano in the Court of Common Pleas of Philadelphia County.
He alleges that due to Mr. Ponziano's inadequate legal
representation in connection with a commercial property
damage suit against a property insurer, an underlying trial
resulted in a $285, 094.40 judgment against Mr. Smith. Mr.
Smith claims that the subsequent appeal was unsuccessful in
large part due to Mr. Ponziano's failure to preserve
issues for appeal.
initial Complaint was filed and served upon Mr. Ponziano on
or about May 29, 2019. In the initial Complaint, Mr. Smith
raised three counts alleging negligence, breach of contract,
and breach of fiduciary duty. In relevant part, Mr. Smith
pleaded under his negligence claim:
As a direct and proximate result of the injury sustained by
Plaintiff due to Defendant's negligence, Plaintiff
sustained actual damages in the amount of $285, 094.40, and
has suffered and will continue to suffer substantial direct,
consequential and incidental damages as a result of the
of Removal, Ex. B, Compl. at ¶ 32 (Doc. No. 1). As to
each of his claims, Mr. Smith pleaded, "WHEREFORE,
Plaintiff hereby demands judgment in excess of $50, 000,
together interest and attorneys' fees." Id.
at ¶¶ 33, 40, 49.
Mr. Ponziano preliminarily objected to the Complaint, Mr.
Smith filed an amended complaint. The Amended Complaint set
forth more specific allegations concerning Mr. Ponziano's
alleged malpractice, omitted the initial breach of fiduciary
duty claim, and added an additional cause of action under the
Pennsylvania Unfair Trade Practices and Consumer Protection
Law (UTPCPL) for Mr. Ponziano's alleged failure to
disclose his insufficient experience and skill to prosecute
an insurance claim. The Amended Complaint concluded the
negligence and breach of contract claims with the same
"Wherefore" clause language used in the initial
Complaint. The Amended Complaint also concluded the UTPCPL
claim pleading: "WHEREFORE, Plaintiff respectfully
requests the entry of judgment ion [sic] the favor of
Plaintiff and against Defendant for statutory damages, all
losses alleged, attorney fees and costs." Notice of
Removal, Ex. C, Am. Compl. at ¶ 68 (Doc. No. 1)
August 7, 2019, Mr. Ponziano removed this case to federal
court by asserting diversity of citizenship subject matter
jurisdiction. In the Notice of Removal, Mr. Ponziano reasoned
that the Amended Complaint-with the addition of the UTPCPL
claim-sufficiently pleaded damages that could result in a
judgment in excess of $75, 000, thus satisfying the
Smith moves to remand this case to state court. Mr. Smith
argues that because Mr. Ponziano should have known that he
could have removed this case after examining the initial
Complaint which he received on or about May 29, 2019, Mr.
Ponziano filed an untimely notice of removal on August 7,
2019. The Court agrees.
Discussion A defendant may remove an action brought
in state court to the federal district court in the district
where the action is pending if the district court would have
had original jurisdiction over the removed claim. Johnson
v. SmithKline Beecham Corp., 724 F.3d 337, 346 (3d Cir.
2013) (citing 28 U.S.C. § 1441(a)). The removing party
bears the burden of showing that the case is properly before
the court at all stages of the litigation. See
Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392,
396 (3d Cir. 2004). The removal requirements are strictly
construed against removal, and all doubts should be resolved
in favor of remand. Boyer v. Snap-On Tools, 913 F.2d
108, 111 (3d Cir. 1990).
of citizenship subject matter jurisdiction falls within the
original jurisdiction of the district court." Brown
v. Francis, 75 F.3d 860, 865 (3d Cir. 1996). Diversity
of citizenship is achieved when the parties are citizens of
different states and "the matter in controversy exceeds
the sum or value of $75, 000, exclusive of interest and
costs." 28 U.S.C. § 1332(a). The amount in
controversy is generally decided from the face of the
complaint itself. Angus v. Shiley Inc., 989 F.2d
142, 145 (3d Cir. 1993) (citing Horton v. Liberty Mutual
Ins. Co., 367 U.S. 348, 353 (1961)). It is "not
measured by the low end of an open-ended claim, but rather by
a reasonable reading of the value of the rights being
litigated." Id. at 146 (citations omitted).
to 28 U.S.C. § 1446(b), a defendant must file a notice
of removal within 30 days after service of the initial
pleading. 28 U.S.C. § 1446(b)(1). Where it is not
apparent from the face of the initial pleading that a case is
removable, a notice of removal may be filed within 30 days
after the defendant has been served an amended pleading
"from which it may first be ascertained that the case is
one which is or has become removable." Id. at
§ 1446(b)(3). A case may be remanded for failure to file
a notice of removal within the 30-day time period provided by
the removal statutes. See Capone v. Harris Corp.,
694 F.Supp. 111, 112 (E.D. Pa. 1988); Blow v. Liberty
Travel, Inc., 550 F.Supp. 375, 375-76 (E.D. Pa. 1982).
issue in this case is when the 30-day time period commenced.
Mr. Ponziano contends that diversity of citizenship
jurisdiction was not apparent until the service of the
Amended Complaint. Specifically, Mr. Ponziano argues that the
amount-in-controversy requirement had not been sufficiently
met until Mr. Smith added his UTPCPL claim in the Amended
Complaint. Mr. Smith ...