Yellow Cab Co. of Pittsburgh v. Gasper

• Decision Date: 09 February 1998
• Docket Number: No. CIV. A. 97-1390.,CIV. A. 97-1390.
• Citation: 994 F.Supp. 344
• Parties: YELLOW CAB COMPANY OF PITTSBURGH, a Corporation, Plaintiff, v. Carl GASPER, an Individual, Gasper Transportation Company, a Corporation, Carriage Limousine Service, a Corporation, Landmark Transportation Services, Inc., a Corporation, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

Page 344

994 F.Supp. 344

YELLOW CAB COMPANY OF PITTSBURGH, a Corporation, Plaintiff, v. Carl GASPER, an Individual, Gasper Transportation Company, a Corporation, Carriage Limousine Service, a Corporation, Landmark Transportation Services, Inc., a Corporation, Defendants.

No. CIV. A. 97-1390.

United States District Court, W.D. Pennsylvania.

February 9, 1998.

Dorothy A. Davis, Herbert B. Conner, Buchanan Ingersoll, Pittsburgh, PA, for Plaintiff.

Richard F. Andracki, Jones, Gregg, Creehan & Gerace, Pittsburgh, PA, Dennis J. Kusturiss, William A. Gray, Vuono, Lavelle & Gray, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

D. BROOKS SMITH, District Judge.

This is a trademark and unfair competition dispute between Yellow Cab Company and one of its competitors. It arises largely out of a television commercial which depicted passengers in a Yellow Cab being subjected to an unpleasant, unsafe and untimely journey while passengers in the competitor's limousine enjoyed a safe, comfortable, luxurious trip. Yellow Cab filed suit in the Court of Common Pleas of Allegheny County, where a preliminary injunction was entered and where defendants' preliminary objections were for the most part denied. Defendants then removed the action to this court; presently before me is plaintiff's motion to remand. For the following reasons, I will grant the motion.

I.

Yellow Cab has a long history of providing taxicab service in the Pittsburgh area which needs no extensive recitation, except to recount that it holds the exclusive franchise to provide service for trips originating at Greater Pittsburgh International Airport. Defendants Landmark and Carriage operate a luxury-oriented "executive" service using vans and Lincoln Town Cars to provide "on-call" transportation services to their customers. Defendant Gasper Transportation Company ("GTC") is a recently formed holding company which holds all the stock of Landmark and Carriage. Defendant Carl Gasper is the President of all three corporate defendants.

According to plaintiff, defendants "falsely and disparagingly portray[ed] Yellow Cab in a negative light, orally and in various media ..., with actual intent to deceive and to cause pecuniary loss to Yellow Cab." Plaintiff specifically takes exception to a "particular commercial video advertisement in which a vehicle in the trade dress of a Yellow Cab was purportedly [traveling] from the Greater Pittsburgh International Airport to downtown Pittsburgh...." Plaintiff contends that this advertisement, which was allegedly displayed on the "Jumbotron" screen at Pittsburgh Penguins hockey games and on at least one local television station, "put Yellow Cab in a false light, disparaged, defamed, infringed upon and diluted the distinctive quality of the famous Yellow Cab trade names, marks and dress, in violation of the Lanham Act, the Pennsylvania Trademark Protection Act, and the Pennsylvania law of unfair competition, commercial disparagement, defamation, and tortious interference with prospective business relations." Dkt. no. 5, at 1-2 (citations omitted). Defendants, of course, deny any wrongdoing.

On February 26, 1997, plaintiff commenced this action against defendants Carriage and Landmark in state court. On or about March 31, that court issued a preliminary injunction enjoining those defendants from broadcasting the offending advertisement. Defendants then filed preliminary objections, in accordance with state practice, on or about April 9. These were denied in substance by the court on May 27, although one procedural objection was granted and plaintiff was required to amend its complaint to place its state and federal law trademark claims in separate counts.

Meanwhile, some discovery had taken place and plaintiff learned that Mr. Gasper had subsequently transferred all of the capital stock of Carriage and Landmark to a new entity he created, GTC, and of which he is an officer, director and sole shareholder. When plaintiff amended its complaint on July 14, it joined GTC and Mr. Gasper as additional defendants; these new defendants were served with the complaint two days later. Attorney Richard F. Andracki entered an appearance on behalf of all defendants, including Carriage and Landmark, on July 30. That same day, he filed a notice of removal to this court based on the presence of plaintiff's federal trademark claim. All defendants purportedly consented to the removal. On August 28, plaintiff filed the instant motion to remand.

II.

Plaintiff asserts that defendants' attempt at removal is untimely. I begin my analysis with the axiomatic proposition that "[t]he removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987)). The removing party bears the burden of demonstrating that removal was proper. Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3d Cir.1995). Under the removal statute:

The notice of removal in 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....

28 U.S.C. § 1446(b). It is well-settled, although not explicitly set forth in the statute, that all defendants must join in any petition for removal; this is known as the "rule of unanimity." E.g., Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Ogletree v. Barnes, 851 F.Supp. 184, 186 (E.D.Pa.1994); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528, 529 (E.D.Pa.1982), (citing cases); Crompton v. Park Ward Motors, Inc., 477 F.Supp. 699, 701 (E.D.Pa.1979) (citing cases).

The difficulty in this case stems from the fact that two of the defendants were joined and served more than thirty days after the first defendant was served. The question then arises whether a previously served defendant which did not initially seek removal within thirty days of service upon it of the original complaint may join the removal petition of a new defendant joined outside that thirty-day period. The Third Circuit has not yet decided this question. The statute, speaking as it does only of a singular defendant, provides little guidance, and the two principal treatise writers on federal procedure are split on the issue. Wright and Miller believe that removal in such circumstances should be permitted:

Because of the requirement that all properly served defendants who are not purely nominal must join in the petition for removal, some district courts have held that failure of the first defendant served to file a petition for removal within thirty days of service will prevent all subsequently served defendants from removing the action. Since one defendant always can preclude removal by refusing to join in the removal petition, this result is not unfair when all of the defendants are served simultaneously. However, when some of the defendants are served after the first defendant served has waived the removal right by not exercising it within the statutory period, the subsequently served defendants are deprived of the opportunity to persuade the first defendant to join in the removal petition.

14A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice & Procedure § 3732, at 531-32 (2d ed.1985). Moore, in contrast, takes the opposite view:

In general, if a case involves multiple defendants and the case is removable at that time, the 30-day removal period begins to run when the first defendant is served. If that defendant does not remove the case within 30 days, a majority of courts hold that the right to remove is waived and subsequently served defendants cannot remove. Thus, any defendant who is served more than 30 days after the initial defendant is served is effectively banned from removing the case. However, some courts hold that this rule penalizes those defendants that are served after the others, and these courts calculate the 30-day period separately for each defendant.

...

The courts taking the less-strict approach ... are understandably concerned with the unfairness of allowing the served defendants' failure to remove to deprive other defendants — who do not know about the action — of their right to seek removal....

However, this less-strict approach is inconsistent with the general interpretive principle that the removal statutes should be applied strictly against removal. It may also reflect the reality that in many cases, given that there must be agreement on the part of all defendants to remove, if the initially filed defendants failed to seek removal, it may be because they were satisfied with the state court forum, and that they therefore may not agree to remove when the later served defendants seek their approval to remove.

16 James W. Moore, Moore's Federal Practice § 107.30[3][a][C] (3d ed.1997); accord 1A James W. Moore, Moore's Federal Practice ¶ 0.168[3.-5-5], at 585-87 (2d ed.1996).

The majority of courts to reach this issue have concluded that the thirty-day clock begins to run when the first defendant is served, and that such a defendant cannot later consent to a removal petition brought by a later-served codefendant. See, e.g., McKinney v. Board of Trustees of Mayland Comm. Coll., 955 F.2d 924, 926 n. 3 (4th Cir.1992) (allowing removal when first-served defendant removes within thirty days and later-served defendant consents within thirty days of the later service date, but opining that cases in which the later-served defendant is served more than thirty days after the first-served defendant are not removable); Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1254-55 (9th Cir.1989); Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir.1988); Brown v....