Marine Midland Bank v. Bravo, Civil Action No. 00-369 (E.D. Pa. 2/11/2000)

• Decision Date: 11 February 2000
• Docket Number: Civil Action No. 00-369.
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: MARINE MIDLAND BANK s/b/m ACQUISITION TO FIRST FEDERAL SAVINGS & LOAN OF ROCHESTER v. MARLA MASCIANTONIO BRAVO.

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MARINE MIDLAND BANK s/b/m ACQUISITION TO FIRST FEDERAL SAVINGS & LOAN OF ROCHESTER v. MARLA MASCIANTONIO BRAVO.

Civil Action No. 00-369.

United States District Court, E.D. Pennsylvania.

February 11, 2000.

MEMORANDUM

WALDMAN, Judge.

Defendant Marla Bravo filed a Notice of Removal of this case from the Philadelphia Court of Common Pleas on January 20, 2000. Defendant asserted in the Notice that removal jurisdiction exists under 28 U.S.C. § 1441(a) and 1441(b) because the property underlying this foreclosure case is subject to a federal notice of forfeiture and the above parties are of diverse citizenship. The Notice of Removal suffers from substantial deficiencies.

It appears from the state court complaint and docket that plaintiff has sued three defendants in addition to Marla Bravo, although she has listed only herself in the caption of the Notice of Removal. No other defendant has joined in the removal.¹ All defendants who are served must join in a removal petition pursuant to 28 U.S.C. § 1441(a) or 1441(b). See Balazik v. County of Dauphin, 44 F.3d 209, 213 (3rd Cir. 1995); Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994); Doe v. Kerwood, 969 F.2d 165, 168 (5th Cir. 1992); Johnson v. Helmerick & Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990); Gibson v. Inhabitants of Town of Brunswick; 899 F. Supp. 720, 721 (D.Me. 1995); Landman v. Borough of Bristol, 896 F. Supp. 406, 409 (E.D.Pa. 1995); Jackson v. Roseman, 878 F. Supp. 820, 826 (D.Md. 1995); Ogletree v. Barnes, 851 F. Supp. 184, 186-87 (E.D.Pa. 1994); McManus v. Glassman's Wynnefield, Inc., 710 F. Supp. 1043, 1045 (E.D.Pa. 1989); Collins v. American Red Cross, 724 F. Supp. 353, 359 (E.D.Pa. 1989).²

Defendants must remove a case within thirty days of the receipt of a copy of the initial pleading or paper setting forth a removable claim. See 28 U.S.C. § 1446(b). In the instant case, the removed claim is asserted in a pleading which was filed and served over fifteen months ago. Even the notice of forfeiture to which defendant seems to attach significance was admittedly received by her 54 days before the Notice of Removal was filed.³

In the absence of a federal question, a case is not removable at all if any defendant is a citizen of the forum state. See 28 U.S.C. § 1441(b). It is not clear that each defendant is a citizen of a state other than Pennsylvania.⁴

Because of the defects in the removal process, this case is subject to remand by February 19, 2000, the 30th day from the filing of the Notice of Removal. See 28 U.S.C. § 1447(c).⁵

In any event, the court cannot conscientiously conclude that it has subject matter jurisdiction. "Federal courts have an ever-present obligation to satisfy themselves of their subject matter jurisdiction and to decide the issue sua sponte." Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3rd Cir. 1995). See also Bregman v. Alderman, 955 F.2d 660, 664 (11th Cir. 1992) (sua sponte remand where diversity of citizenship of parties not apparent from pleadings); Steel Valley Authority v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3rd Cir. 1987) ("lack of subject matter jurisdiction voids any decree entered in a federal court"); Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir. 1986) (federal jurisdiction must be properly pled).

That the federal government may have filed a notice of forfeiture against the subject property does not convert Marine Midland's state court claim of mortgage default into one arising under federal law. See, e.g., New England Explosives Corp. v. Maine Ledge Blasting Specialist, Inc., 542 F. Supp. 1343, 1346 (D.Me. 1982) (that federal government had asserted interest in property at issue in state court action to enforce plaintiff's lien does not transform claim into one arising under federal law). That Marine Midland and the state court defendants may ultimately be claimants in a federal administrative proceeding or judicial forfeiture action does not alter the character of the instant action which is determined from the face of plaintiff's pleadings. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Allstate Insurance Co. v. 65 Security Plan, 879 F.2d 90, 93 (3rd Cir. 1989).⁶

To demonstrate diversity jurisdiction, defendant points to purported allegations in paragraphs 1 and 2 of the state court complaint that plaintiff's principal place of business is in New York and that defendant Bravo is a resident of Pennsylvania. The copy of the state court complaint submitted by defendant in fact contains no such allegations. It merely lists a New York and "last known" Pennsylvania address for plaintiff and defendant Bravo respectively.

Even a showing that plaintiff's principal place of business is in New York and that defendant Bravo resides in Pennsylvania would not establish diversity jurisdiction. See Wolfe v. Hartford Life & Annuity Ins. Co., 148 U.S. 389, 389 (1893) (allegation of "residence" insufficient to confer diversity jurisdiction); Grace v. American Central Ins. Co., 109 U.S. 278, 284 (1883); Midlantic Nat'l Bank v. E.F. Hansen, 48 F.3d 693, 696 (3rd Cir.) (corporation is citizen both of state of incorporation and of state in which its principal place of business is located), cert. dismissed sub nom. E.F. Hansen v. Midlantic Nat'l Bank, 515 U.S. 1184 (1995); Rodriguez v. SK & F Co., 833 F.2d 8, 9 (1st Cir. 1987) (same); Wisconsin Knife Works, 781 F.2d at 1282 (same); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3rd Cir. 1972) ("residency in a state is insufficient for purposes of diversity"); Guerrino v. Ohio Casualty Ins. Co., 423 F.2d 419, 421 (3rd Cir. 1970) ("[a]llegations of citizenship are required to meet the jurisdictional requirement"); Wymard v. McCloskey & Co., Inc., 342 F.2d 495, 497 (3rd Cir.) (same), cert. denied sub nom. McCloskey & Co. v. Wymard, 382 U.S. 823 (1965); Darling v. Piniella, 1991 WL 193524, *4 (E.D.Pa. Sept. 27, 1991) ("[d]iversity jurisdiction is predicated on citizenship, not residency"); Stanko v. LeMond, 1991 WL 152940, *1 (E.D.Pa. Aug. 6, 1991) ("citizenship" and "residence" are "different concepts"); Brooks v. Hickman, 101 F.R.D. 16, 18 (W.D.Pa. 1984) ("diversity jurisdiction is based on citizenship, not residence"); Forman v. BRI Corp., 532 F. Supp. 49, 51 (E.D.Pa. 1982) ("allegations of residency do not properly invoke [diversity] jurisdiction").

"[T]here is a long line of authority for the proposition that when diversity of citizenship is the basis of asserting removal jurisdiction, it must exist not only at the time the original action is filed in state court but also at the time removal is sought to federal court." Charles Alan Wright et al., Federal Practice and Procedure 3723 (3rd ed. 1998). There has been no showing as to the citizenship of any party in the fall of 1998 or at the time of removal. Missing completely are any allegations regarding the three named co-defendants and their citizenship at the pertinent times.⁷

The court concludes that it has neither federal question nor diversity jurisdiction. The court would be inclined to remand on its own motion within the thirty day period for the various procedural defects noted above. Consistent with 28 U.S.C. § 1447(c), the court will remand this case for lack of subject matter jurisdiction. An appropriate order will be entered.

ORDER

AND NOW, this day of February, 2000, consistent with the accompanying memorandum and pursuant to 28 U.S.C. § 1447(c), IT IS HEREBY ORDERED that the above action is REMANDED to the Philadelphia Court of Common Pleas.

1. It also appears that no other defendant was served with the removal petition.

2. Each defendant must join within thirty days of receipt of the initial pleading with a removable claim by the first defendant entitled to petition for removal. See Getty Oil, Div. Of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1263 (5th Cir. 1988); Teitelbaum v. Soloski, 843 F. Supp. 614, 615 (D.C. Cal. 1994); Johnson v. Baltimore City Police Dep't., 757 F. Supp. 677, 679 (D.Md. 1991); Schmidt v. National Organization for Women, 562 F. Supp. 210, 212 (N.D.Fla. 1983); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 530 (E.D.Pa. 1982).

3. A case which becomes removable on the basis of diversity jurisdiction may not be removed at all more than one year after its commencement. See 28 U.S.C. § 1446(b). This action was commenced well over a year ago. Many courts have held that the one year limit is an absolute jurisdictional bar. See Green Point Savings Bank v. Hidalgo, 910 F. Supp. 89, 92 (E.D.N.Y. 1995) ("the one-year limitation in section 1446(b) goes to subject matter jurisdiction"); Santiago v. Barre National, Inc., 795 F. Supp. 508, 510 (D.Mass. 1992) ("the one-year bar is absolute"); Brock v. Syntex Laboratories, Inc., 791 F. Supp. 721, 722-23 (E.D.Tenn. 1992) (granting untimely remand motion because one year ban on removal of diversity cases is "jurisdictional"), aff'd, 7 F.3d 232 (6th Cir. 1993); Robinson v J.F. Cleckley & Company, Inc., 751 F. Supp. 100, 105 (D.S.C. 1990) ("congressional intent in promulgating the one-year cap on removal was to limit federal jurisdiction"); Foiles by Foiles v. Merrell Nat. Laboratories, 730 F. Supp. 108, 110 (N.D.Ill. 1989) ("one-year limit is jurisdictional").

4. Also, defendant filed an answer, counterclaims and pretrial motions in state court where, as noted, this litigation has proceeded for over a year. The state court issued a detailed scheduling order, ruled on various potentially dispositive motions, held a status hearing and listed the case for trial. In such circumstances, courts have held that a defendant waives any right to remove. See Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986) ("[e]ven a defendant who petitions timely may have waived its right to removal by proceeding to defend the action in state court or otherwise invoking the processes of that court"); Kam Hon, Inc. v. Cigna Fire Underwirters Ins. Co., 933 F. Supp....