Tomasino v. Guzman-Nieves, Civil Action No. 16-1034
| Decision Date | 05 October 2016 |
| Docket Number | Civil Action No. 16-1034 |
| Parties | KAREN TOMASINO, Plaintiff, v. GUZMAN-NIEVES, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
MEMORANDUM ORDER
Pending before the Court is Plaintiff Karen Tomasino ("Plaintiff")'s Motion to Remand (Doc. 3). For the reasons stated below, the Court will GRANT Plaintiff's Motion to Remand (Doc. 3) and remand this action to Court of Common Pleas of Westmoreland County, Pennsylvania.
MEMORANDUMThis lawsuit arises out of an accident that occurred in Westmoreland County, Pennsylvania, on June 14, 2016. On that date, decedent Albert Joseph Tomaino, Jr. was killed when he was struck by a tractor trailer operated by Defendant Cruz Humberto Guzman-Nieves ("Guzman-Nieves"). (Complaint, Exh. A to Notice of Removal (Doc. 1-2), ¶¶ 12-42). Plaintiff alleges that Defendant Guzman-Nieves was acting within the course and scope of his employment with Defendant EGO Express, Inc. ("EGO Express") at the time of the accident. Id.
Plaintiff filed a Complaint against Defendants Guzman-Nieves and EGO Express in the Court of Common Pleas of Westmoreland County on June 29, 2016. (Doc. 1-2). Plaintiff served Guzman-Nieves with the Complaint on June 30, 2016. (Doc. 3, Exh. 1). At the time of service, Guzman-Nieves was incarcerated at the Westmoreland County Prison. Id.
Plaintiff served Defendant EGO Express with the Complaint on July 5, 2016. (Doc. 3, Exh. 1). EGO Express timely filed a Notice of Removal on July 13, 2016. (Doc. 1). According to EGO Express, at the time it filed its Notice of Removal, its insurer was "in the process of finding its assignment of separate counsel for [Guzman-Nieves], so as to avoid any potential conflict." (Doc. 8. at 2). EGO Express alleges that its insurer appointed separate counsel for Guzman-Nieves on August 4, 2016, and that, between July 5, 2016 and August 4, 2016, Guzman-Nieves was unrepresented. Id.
On August 8, 2016, Plaintiff filed the instant Motion for Remand, arguing that this case should be remanded to the Court of Common Pleas of Westmoreland County because not all defendants timely consented and/or joined in the removal. (Doc. 3).
On August 25, 2016, counsel entered an appearance on behalf of Guzman-Nieves (Doc. 6). On August 26, 2016, Guzman-Nieves filed a Joinder and Consent to the Removal by Defendant EGO Express. (Doc. 7).
Pursuant to 28 U.S.C. § 1441(a), "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." 28 U.S.C. § 1441(a); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). After a notice of removal is filed, a plaintiff 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 (3dCir.1993)). On a motion to remand, the party asserting jurisdiction (the removing party) bears the burden of establishing that the action is properly before the court. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Moreover, as federal courts are of limited jurisdiction, removal statutes should be construed strictly against removal, with all doubts resolved in favor of remand. Id.; Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
EGO Express asserts that this Court has diversity jurisdiction over Plaintiff's Complaint pursuant to 28 U.S.C. § 1332. While Plaintiff does not contest that diversity jurisdiction exists, she argues that there were defects in the removal process warranting remand. Specifically, Plaintiff claims that EGO Express violated the "rule of unanimity" by removing this action to federal district court without first obtaining Guzman-Nieves's consent to removal, as required by 28 U.S.C. § 1446(b)(2).
Section 1446(b)(2) provides:
When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action. Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
Under this "rule of unanimity," all defendants must join in the notice of removal or otherwise consent to the removal within the thirty-day period set forth in 28 U.S.C. § 1446(b) in order to perfect removal. See Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). In a case involving multiple defendants, "each defendant individually has thirty days to file a notice of removal beginning when that particular defendant is served." Delalla v. Hanover Ins., 660 F.3d 180, 185 (3d Cir. 2011). "If defendants are served at different times, however, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to theremoval even though that earlier-served defendant did not previously initiate or consent to removal." Pujols-Sanchez v. Wexxar Packaging, Inc., 2014 WL 4058726, at *1 (E.D. Pa. Aug. 14, 2014) (citing 28 U.S.C. § 1446(b)(2)(C)).
Cacoilo v. Sherwin-Williams Co., 902 F.Supp.2d 518, 518 (D.N.J. 2012); Balazik, 44 F.3d at 213 ().
EGO Express concedes that its Notice of Removal is procedurally deficient, as Guzman-Nieves failed to provide written consent to removal on or before July 30, 2016 (i.e., thirty days after being served). Defendant argues, however, that the Court has discretion to deny a motion for remand when there are "exceptional circumstances" that prevent a co-defendant from consenting within the thirty-day time period, citing to an opinion from the Court of Appeals for the Fifth Circuit, Gillis v. Louisiana, 294 F.3d 755 (5th Cir. 2002). In Gillis, the court relied on Fifth Circuit precedent holding that "'[e]xceptional circumstances' might permit removal even when a defendant fails to comply fully with § 1446 within the thirty-day removal period." Id. at 759 (citing Getty Oil v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 n.12 (5th Cir.1988)). Applying that precedent, the court found that "exceptional circumstances" excused the defendant's failure to timely file written consent because consent could be authorized only at a board meeting, andsuch a meeting could not be scheduled within the thirty-day removal period because the Board's chairman, who was also a plaintiff in the matter, had interposed scheduling conflicts. Id. at 758-59.
Unlike the Court of Appeals for the Fifth Circuit, the Court of Appeals for the Third Circuit has not adopted an "exceptional circumstances" exception to the general "rule of unanimity." To the contrary, the Court of Appeals for the Third Circuit recognizes only three narrow exceptions to the "rule of unanimity": (1) where the non-joining defendant is a nominal party; (2) where a defendant has been fraudulently joined; or (3) where a non-resident defendant has not been served at the time the removing defendants filed their petition. See Balazik, 44 F.3d 209, 213 n.4. EGO Express does not argue that any of the above three exceptions apply in this case. Accordingly, while sympathetic to EGO Express's arguments, the Court finds that it lacks discretion under current Third Circuit law to apply an "exceptional circumstances" exception to EGO Express's procedurally defective notice of removal.
In its briefing, EGO Express asks that the Court treat the "Notice of Removal to be considered properly amended by the filing of Co-Defendant's Joinder and Consent." (Doc. 8, at 4). Although not framed as such, the Court construes EGO Express's request as a request for leave to file an amended Notice of Removal. For the reasons discussed below, the Court will deny that request.
A notice of removal can be amended freely within the thirty day period provided for in 28 U.S.C. § 1446(b). See USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 n.13 (3d Cir. 2003). Furthermore, the removal statute provides that a party may amend its notice of removal after the thirty day period has expired to correct defective allegations of jurisdiction. See 28 U.S.C.§ 1653. The Court of Appeals for the Third Circuit has not addressed whether a removal petition can be amended, after the thirty day period has expired, to correct a procedural—as opposed to a jurisdictional—defect. See Lewis v. Rego Corp., 757 F.2d 66, 69 n.2 (3d Cir. 1985). Furthermore, "there is a split among the district courts within the Third Circuit about whether they have discretion to permit the amendment of a notice of removal after expiration of the thirty-day removal period when such an amendment would serve the interests of justice or judicial...
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