Kelsey v. Davis

• Decision Date: 18 January 2022
• Docket Number: Civil Action 3:21-CV-01624
• Parties: CAROL KELSEY, Plaintiff, v. GEMMA DAVIS, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

CAROL KELSEY, Plaintiff,
v.
GEMMA DAVIS, et al., Defendants.

Civil Action No. 3:21-CV-01624

United States District Court, M.D. Pennsylvania

January 18, 2022

MANNION, D.J.

REPORT AND RECOMMENDATION

KAROLINE MEHALCHICK, Chief United States Magistrate Judge.

Before the Court is a motion to remand to the Philadelphia County Court of Common Pleas filed by Plaintiff Carol Kelsey (“Kelsey”) on October 7, 2021. (Doc. 5). Kelsey initiated this action in the Court of Common Pleas of Philadelphia County on August 10, 2021, against Gemma Davis, Anthony Cohen, Alto's Express, Inc., Angelo Keyes, and Metallix Refining, Inc. (collectively, the “Defendants”). (Doc. 1-1, at ¶ 2-7). Kelsey requests that the current matter be remanded back to state court because Defendants' removal violates the “forum defendant rule” and “rule of unanimity.” (Doc. 6, at 4). For the following reasons, it is respectfully recommended that the Court grant Kelsey's motion to remand. (Doc. 5).

I. Background and Procedural History

Kelsey initiated this case with the filing of a complaint in the Court of Common Pleas for Philadelphia County on August 10, 2021. (Doc. 1-1, at 2). Kelsey completed service upon Defendant Davis on August 24, 2021. (Doc. 5-1, at 20; Doc. 6, at 3). On September 1, 2021, Kelsey completed service upon Defendants Cohen and Alto's Express, Inc. (Doc. 5-1, at 25, 30; Doc. 6, at 3). On September 10, 2021, Defendant Davis filed preliminary objections to the complaint. (Doc. 5-1, at 35; Doc. 6, at 3). On September 20, 2021, Defendants Keyes and

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Metallix Refining, Inc. (the “Removing Defendants”), filed a notice of removal to remove this action to the United States District Court for the Middle District of Pennsylvania pursuant to diversity jurisdiction under 28 U.S.C. § 1332. (Doc. 1, at 3-4). No. other Defendants have filed a notice of removal, joined in the notice of removal, or otherwise stated to the Court their intent to join in the notice of removal.

On October 7, 2021, Kelsey filed the motion to remand to state court. (Doc. 5). On November 12, 2021, Kelsey filed her brief in support of the motion, arguing that Removing Defendants' removal to federal court does not sufficiently establish diversity of citizenship between the parties. (Doc. 6, at 4). On December 1, 2021, Kelsey filed a certificate of concurrence/non-concurrence, stating that counsel for Kelsey sought concurrence in the motion to remand from counsel for Defendants; However, Defendants have not responded to counsel for Kelsey. (Doc. 7, at 1). More than thirty days have passed since Kelsey filed the brief in support of the motion to remand. As of the date of this Order, Defendants have not filed a brief in opposition as required by Local Rule 7.6, so Defendants are deemed to not oppose Kelsey's motion to remand.^[1] The motion is ripe for disposition. (Doc. 5; Doc. 5).

II. Removal Standard

The removal of cases from state courts to federal courts is governed by 28 U.S.C. §§ 1441-1455. Under § 1441(a), a defendant may remove “any civil action brought in a state

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court of which the district courts of the United States have original jurisdiction . . . to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). In the case at bar, Defendants filed a notice of removal pursuant to 28 U.S.C. § 1441(b), invoking diversity of citizenship under 28 U.S.C. § 1332(a). (Doc. 1, at 2). This provision states that a district court “shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, ” between “citizens of different states.” 28 U.S.C. § 1332(a)(1).

Section 1446 of the removal statute further sets forth the procedures for removal, explaining that a defendant seeking removal of an action must file a petition for removal with the district court that contains “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants” in the state court action. 28 U.S.C. § 1446(a). In addition, a notice of removal “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[.].” 28 U.S.C. §§ 1446(b). After a case has been removed, a plaintiff may move to remand the action back to state court under 28 U.S.C. § 1447(c) for “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure.” Ramos v. Quien, 631 F.Supp.2d 601, 607 (E.D. Pa. 2008) (quoting PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.1993)). However, 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[.].” 28 U.S.C. § 1447(c).

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Because federal courts are courts of limited jurisdiction, both the Supreme Court of the United States and the Third Circuit Court of Appeals have recognized that removal statutes are to be strictly construed against removal with all doubts resolved in favor of remand. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). “If the citizenship of the parties is not disclosed in the complaint, the case is not removable unless the defendant can affirmatively plead and later prove the existence of diversity.” Balilaj v. Marshalls, Inc., No. 03-5908, 2004 WL 437448, at *2-4 (E.D. Pa. Mar. 2, 2004) (citing 16 James Wm. Moore et al., Moore's Federal Practice ¶ 107.14 (3d ed. 2002)); see also Rosenfield v. Forest City Enter., L.P., 300 F.Supp.3d 674, 674-75 (E.D....