Bolger v. Utermohlen

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation485 F.Supp.3d 588
Docket NumberCase No. 2:20-cv-03100-JDW
Parties Suzanne BOLGER, Plaintiff v. Mary UTERMOHLEN, et al., Defendants
Decision Date10 September 2020

Dana Klayman Weitz, Elizabeth Kathleen Lilienthal, Schatz & Steinberg, P.C., Philadelphia, PA, for Plaintiff.

Beth A. Carter, Bennett Bricklin & Saltzburg LLC, Philadelphia, PA, for Defendants Mary Utermohlen, Fredrick Utermohlen.

Jeffrey E. Tenthoff, Eamon C. Merrigan, Goldberg, Miller and Rubin, P.C., Philadelphia, PA, for Defendant State Farm Mutual Automobile Insurance Company.


JOSHUA D. WOLSON, District Judge

"Only the written word is the law[.]" Bostock v. Clayton Cty., Georgia , ––– U.S. ––––, 140 S. Ct. 1731, 1737, 207 L.Ed.2d 218 (2020). "The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration." Id . at 1749. Courts many not "favor contemporaneous or later practices instead of the laws Congress passed." McGirt v. Okla ., ––– U.S. ––––, 140 S. Ct. 2452, 2468, 207 L.Ed.2d 985 (2020). Despite this, for more than 70 years, courts have ignored the written words in 28 U.S.C. § 1446(b)(3) in favor of a judge-made rule, the "voluntary-involuntary" rule. In doing so, they have relied on legislative history and policy-based rationales. But, as the Supreme Court recently reiterated, those kinds of extratextual considerations have no bearing on a statute that is clear and unambiguous, like Section 1446(b)(3). The Court will not ignore the statutory language in the name of efficiency or tradition. It concludes that it has subject matter jurisdiction to hear this case.

A. History Of This Action

On April 16, 2018, Mary Utermohlen rear-ended Suzanne Bolger's car. Ms. Bolger claims to have sustained injuries as a result. On February 27, 2020, Ms. Bolger filed a lawsuit against Ms. Utermohlen, Frederick Utermohlen (the vehicle's owner), and State Farm Automobile Insurance Company in the Philadelphia County Court of Common Pleas. Ms. Bolger asserted negligence claims against the Utermohlens and sought underinsured motorist coverage from State Farm. On May 28, 2020, the Common Pleas Court sustained Preliminary Objections in part. The court severed Ms. Bolger's UIM claim against State Farm and transferred her remaining claims to the Bucks County Court of Common Pleas. The UIM claim against State Farm remained in Philadelphia County.

On June 25, 2020, State Farm filed a Notice of Removal pursuant to 28 U.S.C. § 1446(b)(3). On July 1, 2020, the Court issued an Order To Show Cause to State Farm as to why the Court should not remand the matter to state court, in light of the voluntary-involuntary rule. State Farm filed a memorandum in response to the Court's order (ECF No. 4), and the Court heard oral argument on August 14, 2020.

B. History Of The Voluntary-Involuntary Rule

Under the voluntary-involuntary rule, "a case that is not initially removable cannot become removable except by a voluntary act of the plaintiff, such as amendment of the pleadings or voluntary dismissal of the non-diverse defendant." Newman v. Ethicon, Inc. , No. 19-cv-4496, 2019 WL 6251194, at *2 (E.D. Pa. Nov. 21, 2019) (quotation omitted). Thus, if a state court terminates the action as to a non-diverse party, then the case is not removable. See id. If, however, the plaintiff terminates the action as to the non-diverse party on its own, then the matter becomes removable.

The involuntary-voluntary rule originated in Powers v. Chesapeake & O. Ry. Co. , 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898). There, the plaintiff had sued multiple parties in state court, including non-diverse defendants. The plaintiff later dismissed the suit against the non-diverse parties and argued that the defendant, who was diverse, could not remove the case to federal court because the time period for removal had expired. The Supreme Court disagreed and concluded that the plaintiff's dismissal of the non-diverse defendants triggered the removal period. See id. at 101, 18 S.Ct. 264. Two years later, in Whitcomb v. Smithson , 175 U.S. 635, 636, 20 S.Ct. 248, 44 L.Ed. 303 (1900), the Supreme Court focused on the voluntary act of the plaintiff to distinguish Powers from the case before it. In Whitcomb , unlike Powers , the state court directed a verdict in favor of the non-diverse defendant.

The Court found that because the non-diverse party was dismissed without the plaintiff's consent, the case did not become removable, even though there was diversity of citizenship after the directed verdict. Whitcomb , 175 U.S. at 637, 20 S.Ct. 248. Following these decisions, the involuntary-voluntary rule took hold, and federal courts remanded cases back to state court where an involuntary act of the state court, rather than a voluntary act of the plaintiff, rendered the case removable.

In 1949, Congress amended the removal statute:

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b)(3). According to the limited legislative history that is available:

[T]he amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a late state of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See for example, Powers v. Chesapeake etc., Ry. Co. , 169 U.S. 92 [18 S.Ct. 264, 42 L.Ed. 673 (1898)].)

House Report No. 81-352, 1949 U.S.C.C.A.N. 1254, 1268 (March 30, 1949). After 1949, most federal courts, including district courts in this circuit, continued to apply the voluntary-involuntary rule. See, e.g., Poulos v. Naas Foods , Inc ., 959 F.2d 69, 72 (7th Cir. 1992) ; Self v. General Motors Corp ., 588 F.2d 655, 658 n.4 (9th Cir. 1978) ; Weems v. Louis Dreyfus Corp. , 380 F.2d 545, 548 (5th Cir. 1967) ; Matteo v. Progressive Advanced Ins. Co. , Civ. A. No. 2:12-cv-5012, 2012 WL 13018245, at *4 (E.D. Pa. Sept. 27, 2012) ; In re Asbestos Prods. Liab. Litig . (No. VI), 801 F. Supp.2d 337, 340 (E.D. Pa. 2011) ; Rubino v. Genuardi's Inc ., No. 10-cv-6078, 2011 WL 344081, at *5 (E.D. Pa. Jan. 31, 2011) ; Greco v. Beccia , No. 99-cv-2136, 2001 WL 121887, at *3 (M.D. Pa. Feb. 13, 2001) ; Abels v. State Farm Fire and Cas. Co. , 694 F. Supp. 140, 144-45 (W.D. Pa. 1988) ; Jenkins v. Nat'l Union Fire Ins. Co. of Pa. , 650 F. Supp. 609, 611 (N.D. Ga. 1986). A handful of district courts has bucked the trend, though subsequent appellate decisions seem to have overruled them. See, e.g. , Lyon v. Ill. Central R.R. , 228 F. Supp. 810, 811 (S.D. Miss. 1964) ; Parkhill Produce Co. v. Pecos Valley S. Ry. , 196 F. Supp. 404, 406-07 (S.D. Tex. 1961) ; Bradley v. Halliburton Oil Well Cementing Co. , 100 F. Supp. 913, 916-17 (E.D. Okla. 1951).

The courts that continue to apply the voluntary-involuntary rule explain that the rule serves two purposes: (1) it contributes to judicial economy by "yo-yo" effect in which a case gets removed and then remanded because a state court appeal reinstates a non-diverse party and destroys diversity jurisdiction; and (2) it defers to the plaintiff's choice of forum and limits federal jurisdiction. E.g., Poulos , 959 F.2d at 72 ; see also Asbestos Prods. Liab. Litig ., 801 F. Supp.2d at 340 ; Greco , 2001 WL 121887, at *3. In addition, courts have concluded that the legislative history demonstrates that Congress did not intend to alter the voluntary-involuntary rule when it amended the statute in 1949. See Weems , 380 F.2d at 548.


Defendants may remove a civil case from State court if the federal court would have subject matter jurisdiction over the matter. See 28 U.S.C. § 1446(a).

This is true even if the case was not removable at the time it was filed. See 28 U.S.C. § 1446(b)(3). As the party asserting the federal court's jurisdiction, a defendant who removes a case from state court "bears the burden of proving that jurisdiction exists." Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C. , 692 F.3d 283, 293 (3d Cir. 2012) (citing Hertz Corp. v. Friend , 559 U.S. 77, 96, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) ). The Court has "an independent obligation to determine whether subject-matter jurisdiction exist[s]." Guerra v. Consol. Rail Corp. , 936 F.3d 124, 131 (3d Cir. 2019) (quotation omitted).


Section 1446(b)(3) permits removal within 30 days after receiving an "order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3) (emphasis added). "It is the cardinal canon of statutory interpretation that a court must begin with the statutory language." In re Philadelphia Newspapers, LLC , 599 F.3d 298, 304 (3d Cir. 2010), as amended (May 7, 2010). "When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ " Id . (quoting Connecticut Nat. Bank v. Germain , 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ); see also Idahoan Fresh v. Advantage Produce, Inc. , 157 F.3d 197, 202 (3d Cir. 1998) ("Where the statutory language is plain an unambiguous, further inquiry is not required ....").

To determine whether statutory language is ambiguous, the Court must "read the statute in its ordinary and natural sense." Id . (quotation omitted). In doing so, the Court must take care to apply the ordinary meaning of the terms of the statute as they existed "at the time of its enactment." Bostock , 140 S. Ct. at 1738 ; see also McGirt , 140 S. Ct. at 2468 (in interpreting Congressional enactment, a court's task is to "ascertain...

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