Koresko v. Murphy

• Decision Date: 12 December 2006
• Docket Number: Civil Action No. 06-4775.
• Citation: 464 F.Supp.2d 463
• Parties: John J. KORESKO, Plaintiff, v. Ed MURPHY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

464 F.Supp.2d 463

John J. KORESKO, Plaintiff, v. Ed MURPHY, et al., Defendants.

Civil Action No. 06-4775.

United States District Court, E.D. Pennsylvania.

December 12, 2006.

John J. Koresko, Bridgeport, PA, Pro se.

Andrew R. Hurda, Veronica W. Saltz, Saltz Polisher, P.C., Wayne, PA, for Defendants.

MEMORANDUM & ORDER

KATZ, Senior District Judge.

Now before the court are Plaintiffs Motion for Remand and Objection to Removal (Document No. 5) and Defendants' response thereto (Document No. 6). For the reasons set forth below, Plaintiff's Motion will be denied.

I. Summary of Facts

Plaintiff initiated this case in the Montgomery County Court of Common Pleas by filing a Praecipe for Writ of Summons on October 14, 2005. The summons was served upon Defendants via certified mail on October 21, 2005. Plaintiff subsequently filed his Complaint on September 24, 2006 and served it upon Defendants via first class mail on September 25, 2006. Defendants received the Complaint on September 28, 2006. Defendants removed the case to this court on October 25, 2006¹

The Complaint alleges that on September 16, 2005, Plaintiff (a Pennsylvania citizen) entered into an agreement with Defendants (citizens of Alabama) to purchase a pickup truck for $33,599.50. (Defendant Plaintiff further alleges that Mr. Ray Ed Murphy is the president of, and Defendant Michael Brewster is an employee of, Defendant Murphy Automotive Group, LLC.) See Compl. ¶¶ 2-5, 9. Pursuant to this agreement, Plaintiff paid Defendants a deposit of $6,009.50.. Id. at ¶ 10. The "Retail Buyers Order" prepared by Defendants to memorialize the agreement included the following language:

This Order shall not become binding upon either the purchaser or the seller until the vehicle described above is physically delivered and purchaser has received the disclosures required under federal law, if applicable. In the case of a credit sale, the seller shall not be obligated to sell until a finance source approves this Order and agrees to purchase a retain installment contract between the Purchaser and the Seller based on this Order.

Id. at ¶ 11.

Soon thereafter, the deal went bad. claims that Defendants, on or about September 20, 2005, turned the pickup truck over to Bryan Ray, who had brought the parties together for this transactions. action. Id. at ¶¶ 15-16. Mr. Ray was friends with Defendant Brewster, and had been briefly associated with Plaintiff and his business, but Plaintiff denies that Mr. Ray was authorized to accept delivery on his behalf. Id. at ¶¶ 16-17, 19. After Mr. Ray took possession of the pickup truck, Plaintiffs agent inspected the pickup truck and discovered that its turbo-charger appeared to have a major oil leak. Id. at ¶ 20. Plaintiff therefore notified Defendants that he considered their agreement rescinded. Id. at ¶ 22. Defendants responded by threatening criminal charges against Plaintiff and by refusing to return his $6,009.50 deposit. Id. at ¶¶ 23-24. (This deposit is the only payment Defenfendants ever received from Plaintiff.)

Plaintiff further alleges that Mr. Ray has disappeared with the pickup truck, and that Defendants' loss has been covered by insurance. Id. at ¶¶ 26-27. Plaintiffs subsequent investigation into the vehicle's history has revealed that it was previously damaged and was sold with a "salvage title," something Defendants allegedly never disclosed to Plaintiff. Id. at ¶¶ 28-30.

The Complaint asserts, in six Counts, state-law claims for rescission, a declaratory judgment, fraud, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and of the Alabama Deceptive Trade Practices Act, but it is conspicuously requests "damages in an amount not in excess of $74,999, exclusive of interest and costs." Id. at 5179. Therefore fore, the only claim that concerns the court for purposes of Plaintiff's Motion for Remand is Count II, which seeks rescission of the contract between the parties, because a condition precedent to the contract —"the disclosures required under federal law" — were allegedly never made. Id. at IN 49-51. More specifically, Plaintiff asserts that Defendants failed to comply with 49 U.S.C. § 32705's requirement that "a person transferring ownership of a motor vehicle shall give the transferee" a written disclosure of the vehicle's cumulative mileage or that the mileage is unknown (if the transferor knows that the odometer has been tampered with). 49 U.S.C. § 32705(a)(1) (2006).

II. Legal Standard

Two statutory provisions govern this case. First, 28 U.S.C. § 1446(b) outlines the procedure for removal:

The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

Second, 28 U.S.C. § 1441(a) provides that:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

III. Discussion

Plaintiff raises three arguments in support of his motion to remand. First, Plaintiff asserts that Defendants' notice of removal was untimely, because it was filed more than 11 months after service of the summons upon Defendants. Second, Plaintiff argues that Defendants' notice of removal is untimely, because it was filed more than 30 days after Plaintiff filed his Complaint. Third, Plaintiff claims that the court lacks subject matter jurisdiction over this case. The court finds none of these arguments persuasive and therefore will deny Plaintiffs Motion for Remand. Each argument will be addressed in turn.

A. Timeliness of Removal More Than 11 Months After Service of the Summons

Plaintiff argues that Defendants' notice of removal (filed on October 25, 2006) was untimely, because it was filed more than 11 months after service upon Defendants of "the initial pleading setting forth the claim for relief" — i.e., the summons. This argument lacks merit, because the 30-day period for removal under the first paragraph of 28 U.S.C. § 1446(b) did not start to run until Defendants received a copy of the Complaint on September 28, 2006. See Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 223 (3d Cir.2005) (holding that Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) implicitly overruled Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F2d 48 (3d Cir. 1993), and therefore holding that "a writ of summons alone can no longer be the `initial pleading' that triggers the 30-day period for removal under the first paragraph of 28 U.S.C. § 1446(b)."); Sheller, Ludwig & Sheller, P.C. v. Catalano & Plache, PLLC, No. 06-3806, 2006 WI, 3097837, at (E.D.Pa. Oct. 27, 2006) (same, citing Sikirica). Since Defendants filed their notice of removal within thirty days after September 28, 2006, removal was timely in this case. See 28 U.S.C. § 1446(b).

B. Timeliness of Removal on October 25, 2006

Plaintiffs second argument is that Defendants' notice of removal (filed on October 25, 2006) was untimely, because it was not filed within the 30-day period for removal under the first paragraph of 28 U.S.C. § 1446(b). This argument also lacks merit, because the 30-day period for removal started to run when Defendants actually received a copy of the Complaint on September 28, 2006, not, as Plaintiff claims, when Plaintiff filed the Complaint in state court on September 24, 2006. See 28 U.S.C. § 1446(b) (The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief....) (emphasis added); Murphy Bros., 526 U.S. at 347-49, 119 S.Ct. 1322; 16 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 107.30[3][a][iv][A], [3][c] (3d ed.2003).. Again, since Defendants filed their notice of removal within thirty days after September 28, 2006, removal was timely in this case.

C. Subject Matter Jurisdiction

Plaintiff makes two points in arguing that the court lacks subject matter jurisdiction over this case. First, with respect to diversity jurisdiction, Plaintiff argues that 28 U.S.C. § 1332(a)'s amount in controversy requirement is not satisfied, because Plaintiff requested less than $75,000 in damages. See Compl. ¶ 79. Second, with respect to federal question jurisdiction, Plaintiff baldly asserts that, even though "the Complaint contains inter alia counts alleging violations of federal statutes ... the central dispute in this case is squarely within the purview of state law." Plaintiffs Motion for Remand and Objection to Removal, at 9 (emphasis in original).

Plaintiff is right about diversity jurisdiction, but not about federal question jurisdiction. Plaintiff notes, correctly, that 28 U.S.C. § 1332(a)'s amount in controversy requirement is not satisfied, because Plaintiff was careful to request less than $75,000 in damages, and because it appears that Plaintiff requested this amount in good faith. See 28 U.S.C. § 1332(a); Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961) ("The general federal rule has long been to decide what the amount in controversy is from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed `in good faith.'"); Angus v. Shiley Inc., 989 F.2d 142, 145-46 (3d Cir.1993).

The court concludes, however, that it has federal...