King v. Mansfield Univ. Of, Civil No. 1:15-CV-0159
| Decision Date | 05 August 2015 |
| Docket Number | Civil No. 1:15-CV-0159 |
| Court | U.S. District Court — Middle District of Pennsylvania |
| Parties | PATRICK KING, Plaintiff v. MANSFIELD UNIVERSITY OF, PENNSYLVANIA, et al., Defendants |
MEMORANDUM
Presently before the court is Plaintiff Patrick King's motion for remand, wherein he asserts that Defendants' notice of removal is defective because Defendants failed to attach the writ of summons issued in the state court proceeding in violation of 28 U.S.C. Section 1446(a), and because Defendants failed to clearly aver that all Defendants either joined or consented to the notice of removal, in violation of 28 U.S.C. Section 1446(b)(2)(A). (Doc. 6.) In the alternative, Plaintiff argues that, should the court find removal proper, it should remand the state law claims for lack of supplemental jurisdiction because they do not arise out of the same nucleus of operative fact as Plaintiff's federal claim. For the reasons that follow, Plaintiff's motion will be denied.
On December 24, 2014, Plaintiff Patrick King ("Plaintiff") filed a complaint in the Court of Common Pleas in Dauphin County, Pennsylvania, Docket Number 2014-cv-09560, against Defendants Mansfield University of Pennsylvania("Mansfield University"), the Pennsylvania State System of Higher Education ("PASSHE"), John Halsted, and Christine Shegan (collectively, "Defendants").2 (Doc. 1, ¶¶ 1-2.) In the complaint, Plaintiff alleged that, while he was a student and employee of Defendant Mansfield University, he was sexually harassed and sexually assaulted by another Mansfield University employee, John Estep. (Doc. 1-1, ¶¶ 15-23.) Plaintiff also alleged that he reported the sexual harassment and assault to Mansfield University's Vice President of Student Affairs, Joseph Maresco, who told Plaintiff that the complaint would be handled by Mansfield University's human resources office. (Id. ¶¶ 24-27.) However, according to Plaintiff, no one from the human resources office ever followed up with him, and Estep resumed his sexual harassment. (Id. ¶¶ 28-33.) In 2004, after suffering from depression and moving off of the Mansfield University campus, Plaintiff reported Estep's sexual harassment and assault to Defendant Mansfield Univeristy's campus police. (Id. ¶¶ 36, 38-39, 48.) A day or so after reporting Estep's conduct, Plaintiff received a call from someone purporting to be from the campus police, but there was never any subsequent follow up by the campus police or any other law enforcement agency. (Id. ¶ 49.) When Plaintiff inquired as to the status of his report, no one at Defendant MansfieldUniversity could locate any record, written or otherwise, of his reports to the human relations office or campus police. (Id. ¶¶ 55, 93.)
Based on these facts, Plaintiff filed his state court action, asserting various state law claims for discrimination and a violation of Pennsylvania's Criminal History Record Information Act, 18 P.S. § 9101, along with a federal claim against Defendants Halsted and Shegan for depriving him of his right to equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983. Defendants removed Plaintiff's action from state court to the Middle District of Pennsylvania on January 23, 2015. (Doc. 1.)
On February 23, 2015, Plaintiff filed the instant motion to remand (Doc. 6), followed by a brief in support on March 9, 2015 (Doc. 8). Defendants filed a brief in opposition on March 26, 2015 (Doc. 9), and Plaintiff replied on April 7, 2015 (Doc. 10). Thus, the motion has been fully briefed and is ripe for disposition.
Under 28 U.S.C. § 1441(a), defendants may remove a civil action filed in a state court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). Defendants seeking removal of an action must file a petition for removal with the district court within thirty days of plaintiff's service of the complaint upon defendants. See 28 U.S.C. § 1446(b). A plaintiff, in turn, may seek 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)); see also Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). Upon a motion to remand, the removingdefendants bear the burden of proving the existence of federal jurisdiction, In re Processed Egg Prods. Antitrust Litig., 836 F. Supp. 2d 290, 294 (E.D. Pa. 2011) (citing Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3d Cir. 1995)), as well as establishing that all pertinent procedural requirements for removal have been met. Shadie v. Aventis Pasteur, Inc., 254 F. Supp. 2d 509, 514 (M.D. Pa. 2003) (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). Moreover, it is well-settled that courts must "construe removal statutes strictly with all doubts resolved in favor of remand." USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 n.12 (3d Cir. 2003); see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992); Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987); Corwin Jeep Sales & Serv., Inc. v. Am. Motor Sales Corp., 670 F. Supp. 591, 592 (M.D. Pa. 1986).
Defendants argue that this court has subject matter jurisdiction over Plaintiff's federal claim pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a). (Doc. 1-1 at ¶ 4.) While Plaintiff does not contest the court's subject matter jurisdiction over his federal claim, he argues that there were defects in the removal process warranting remand. Plaintiff further argues that the court should not exercise supplemental jurisdiction over his state law claims because they do not form part of the same case or controversy as his lone federal claim.
In his motion for remand, Plaintiff alleges that there were two defects in the removal process that dictate his case be remanded to state court. First, Plaintiff claims that Defendants violated the "rule of unanimity" by failing to provideindividual written statements of joinder or consent to removal, as required by 28 U.S.C. § 1446(b)(2)(A). (Doc. 8, p. 4 of 20.) Second, Plaintiff claims that Defendants failed to attach the writ of summons in the state court proceeding to the notice of removal, as required by 28 U.S.C. § 1446(a). (Doc. 8, p. 8 of 20.) In response, Defendants contend that they each provided clear consent to the notice of removal, as required by the rule of unanimity, because they share the same counsel, thus making the notice of removal a joint notice among all of the defendants. (Doc. 9, p. 3 of 15.) Although Defendants acknowledge that they failed to attach the writ of summons from the state court proceeding to their notice of removal, they contend that the defect was cured when the state court sent the complete record, including the writ of summons, to this court on February 4, 2015. (Id. at p. 7.) The court will address these arguments in turn.
Although not explicitly stated in 28 U.S.C. § 1446(b), it is well-settled that the rule of unanimity requires that all defendants in a suit involving multiple defendants must join in the notice of removal or otherwise consent to the removal within thirty days. See Balazik, 44 F.3d at 213 (citing Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 247 (1900)); see also Di Loreto v. Costigan, 351 F. App'x 747, 752 (3d Cir. 2009) (citing Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985)); Ogletree v. Barnes, 851 F. Supp. 184, 186 (E.D. Pa. 1994) (citations omitted). To satisfy this requirement, "there must be some timely filed written indication from each defendant, or some person or entity purporting to formally act on its behalf . . . and [with] authority to do so, that it has actually consented to [removal]." Ogletree, 851 F. Supp. at 188 ().
Relying almost entirely on McGuire v. Safeware, Inc., Civ. No. 13-cv-3746, 2013 WL 5272767 (E.D. Pa. Sept. 17, 2013), Plaintiff argues that the rule of unanimity requires separate written statements from each individual defendant evidencing his or her consent to removal. (Doc. 8, p. 7.) Plaintiff's reliance, however, is misguided. In McGuire, unlike in the instant case, the defendants were represented by separate counsel. Counsel representing one of the defendants filed a notice of removal, to which the remaining two defendants did not consent in any written submission to the court. McGuire, 2013 WL 5272767 at *2. In ordering the case remanded, the Eastern District explained that some written indication of consent to removal must be given by each of the defendants or someone with authority to act on their behalf, id. at *3 (citing Ogletree, 851 F. Supp. at 188), and added that "most courts require all defendants to voice their consent directly to the court," id. (quoting Michaels v. New Jersey, Civ. No. 96-cv-3557, 1996 WL 787613, *5 (D.N.J. Nov. 8, 1996)). Here, Defendants voiced their consent to removal directly to the court in the notice of removal, filed by counsel with the authority to act on their behalf. Because the notice of removal refers only to "Defendants" - plural - and Defendants share the same counsel, the court finds that the notice provided written indication that all of the Defendants consented to the removal. Accordingly, Defendants have satisfied the rule of unanimity and complied with 28 U.S.C. § 1446(b).
Plaintiff next argues that Defendants' failure to attach the writ of summons from the state court proceeding to the notice of removal to federal court amounts to a fatal procedural defect that mandates remand pursuant to 28 U.S.C. §...
To continue reading
Request your trial