Cook v. Wikler

• Decision Date: 24 February 2003
• Docket Number: No. 02-1340.,02-1340.
• Parties: Deborah COOK, v. Gerald WIKLER; John Palko, John Palko, Defendant/Third Party Plaintiff, v. Tonkinson, P.O., Badge No. 708, Third Party Defendant Police Officer Tonkinson, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

320 F.3d 431

Deborah COOK, v. Gerald WIKLER; John Palko, John Palko, Defendant/Third Party Plaintiff, v. Tonkinson, P.O., Badge No. 708, Third Party Defendant

Police Officer Tonkinson, Appellant.

No. 02-1340.

United States Court of Appeals, Third Circuit.

Argued December 3, 2002.

Filed February 24, 2003.

City of Philadelphia Law Dept., Nelson A. Diaz, City Solicitor, Elise M. Bruhl (argued), Assistant City Solicitor, Appeals, Philadelphia, PA, for Appellant Police Officer Tonkinson.

Alan L. Yatvin (argued), Popper & Yatvin, Philadelphia, PA, for Appellee John Palko.

Gordon Gelfond, Margolis & Edelstein, Philadelphia, for Gerald Wikler.

William E. Averona, Philadelphia, PA, for Deborah Cook.

Before: ROTH, SMITH and CUDAHY,^* Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

Appellant in this case is a City of Philadelphia police officer who seeks to have this Court reverse an Order of the District Court for the Eastern District of Pennsylvania remanding this case to the state court in which the complaint was originally filed. The appellant, Police Officer Tonkinson, is a third-party defendant brought into this action through a "Joinder Complaint" filed in state court by one of the original defendants below, John Palko. Because the District Court interpreted the removal statutes, 28 U.S.C. § 1441, et seq., to prohibit third-party defendants like Police Officer Tonkinson from removing cases to federal court, the District Court concluded that the removal "was improper under § 1441," and remanded the case to state court. Because we lack jurisdiction to hear an appeal of a remand order entered "on the basis of any defect," 28 U.S.C. § 1447(c) (Supp.2002), we will dismiss the appeal.

I.

The original plaintiff in this case, Deborah Cook, commenced this action on September 20, 2000, in the Court of Common Pleas of Philadelphia County, Pennsylvania. Ms. Cook alleges that John Palko, the manager of the apartment building in which she resided, subjected her to various forms of harassment in September of 1999, and that Gerald Wikler, the owner of the building, was negligent in his supervision of Palko. In response to Ms. Cook's complaint against him, Mr. Palko counter-claimed against Ms. Cook and joined Police Officer Tonkinson, the appellant in this matter, as a third-party defendant to his counter-claim.

According to appellee Palko's state "joinder complaint,"¹ around 7:00 P.M. on the evening of September 28, 1999, Palko answered a knock on his apartment door to find several police officers and Ms. Cook standing in the hallway. Ms. Cook had evidently called the police to complain about loud music she alleged was coming from Mr. Palko's apartment, which was located below hers. After investigating the complaint and interviewing Palko, the police departed shortly thereafter without taking any action. Within hours, however, Police Officer Tonkinson appeared and pounded on Palko's apartment door. Palko alleges that, without so much as a single question, Police Officer Tonkinson barged into his apartment, then seized and assaulted him. Palko alleges that Police Officer Tonkinson conspired with Cook to swear out a "bogus" criminal complaint against Palko and have him arrested. These allegations form the basis of Palko's counter-claim against Cook and his joinder of Police Officer Tonkinson, which included counts of assault and battery, false arrest and imprisonment, malicious prosecution and abuse of process, and one federal civil rights count pursuant to 42 U.S.C. § 1983.

On October 24, 2001, with Ms. Cook's consent and in response to the § 1983 claim, Police Officer Tonkinson, a third-party defendant, removed the case to the District Court. He alleged that the federal courts properly had subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 and 1367. Palko responded five days later by filing a motion to remand, asserting that a joinder defendant's removal of a case is improper under the removal statutes.

Before the District Court, Police Officer Tonkinson asserted that removal was proper and authorized by 28 U.S.C. § 1441. Furthermore, Police Officer Tonkinson asserted that Palko waived his right to remand, notwithstanding the fact that Palko had already filed a motion for remand, by later seeking a Rule 55 default against Ms. Cook on his cross-claim.² The District Court did not agree. Concluding that removal "by third-party defendant Tonkinson was improper under § 1441," the District Court remanded the case to the Court of Common Pleas. This appeal followed.

II.

After the docketing of this appeal, appellee Palko filed a motion to dismiss the appeal for lack of jurisdiction pursuant to 28 U.S.C. § 1447(d). That section provides that an "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise..." 28 U.S.C. § 1447(d) (1994).³ As the Supreme Court has explained, § 1447(d) "prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (emphasis added). However, this prohibition is limited by the requirement that "`§ 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).'" Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)).

When the Supreme Court decided Quackenbush and Things Remembered, "[a]s long as a district court's remand [was] based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction—the grounds for remand recognized by § 1447(c)— a court of appeals lack[ed] jurisdiction to entertain an appeal of the remand order under § 1447(d)." See Things Remembered, 516 U.S. at 127-28, 116 S.Ct. 494 (emphasis added). However, shortly after the Supreme Court decided Quackenbush on June 6, 1996, Congress amended 28 U.S.C. § 1447(c) in a way which is critical to the scope of our appellate jurisdiction. See Pub.L. No. 104-219, 110 Stat. 3022 (enacted Oct. 1, 1996). We now give effect to that statutory change.

Prior to Congress' amendment of § 1447(c), that provision read: "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)...." 28 U.S.C. § 1447(c) (1994) (amended 1996) (emphasis added). Congress amended that section "by striking `any defect in removal procedure' and inserting `any defect other than lack of subject matter jurisdiction'." S. 533, 104th Cong. § 1 (1996) (enacted). Thus, § 1447(c) now reads, in critical part:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). 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) (Supp.2002) (emphasis added).

The 1996 amendment plainly effects a broadening of the scope of § 1447(c) — expanding its application to not just procedural defects, but any defects — and making the plain text of paragraph (c) consistent with the legislative history Congress drafted on § 1447 in 1988. See H.R.Rep. No. 100-889, at 72 (1988), reprinted in 1988 U.S.C.C.A.N. 5982, 6033. The tension that previously existed between the plain text of § 1447(c) and its legislative history led to significant judicial conflict over the reading of the statute. Compare Pierpoint v. Barnes, 94 F.3d 813, 818 (2d Cir.1996) (giving a "very broad reading" to § 1447(c) and applying it to "all cases where the remand motion is premised on an asserted defect in the removal"), with id. at 821 (Jacobs, J., dissenting) (§ 1447(c) applies only to a "procedural defect in the defendant's removal of the case"), and Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1213 (3d Cir.1991) (discussing the legislative history, but "the statute is clear on its face ... [§ 1447(c) ] applies only to motion for remand on the basis of any defect in removal procedure.") (emphasis original). However, we believe the plain language of the amended statute now applies "broadly to include all removals that are not authorized by law." See Pierpoint, 94 F.3d at 817.⁴ The amendment has profound implications for our jurisdiction to review remand orders issued by district courts. Reading § 1447(d) "in pari materia with § 1447(c)," as the Supreme Court says we must, see Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712, the statutory language now provides that a district court remand order entered "on the basis of any defect" is not reviewable on appeal. See 28 U.S.C. § 1447(c), (d) (1994 & Supp.2002) (emphasis added). So long as a district court remands a case to state court based on a conclusion that the removal was "not authorized by law," Pierpoint, 94 F.3d at 817, section 1447(d) "prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ." Thermtron, 423 U.S. at 343, 96 S.Ct. 584 (emphasis added); see also Feidt v. Owens Corning, 153 F.3d 124, 126 (3d Cir.1998).⁵

III.

Appellee Palko contends that dismissal of this appeal is proper because 28 U.S.C. § 1447(d) prohibits us from reviewing the District Court's Order. Palko asserts that the District Court's ruling that Tonkinson was not a "defendant" eligible to invoke the removal statute was based both on a lack of subject-matter jurisdiction and a defect in removal. Although we believe that the District Court's remand was not based on a purported lack of jurisdiction, we agree that the Order was...