Austin v. Nugent

DAVID AUSTIN, Plaintiff v. CHRISTINE NUGENT, Defendant

CIVIL ACTION NO. 3:16-1567

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

December 5, 2016

(JUDGE MANNION)

MEMORANDUM

On July 28, 2016, the defendant, Christine Nugent, filed a notice of removal in this court in response to a personal injury action filed against her by the plaintiff, David Austin, in the Court of Common Pleas of Pike County, Pennsylvania. Presently before the court are the defendant's motion to dismiss, (Doc. 6), the plaintiff's motion to remand, (Doc. 9), the plaintiff's motion to rescind and reconsider the August 5, 2016, Order and to strike the defendant's motion to dismiss, (Doc. 10), and the plaintiff's motion to stay proceedings, (Doc. 11) For reasons more fully discussed below, the court finds as follows: the plaintiff's motion to remand is DENIED; the plaintiff's motion to rescind and reconsider its August 5, 2016, Order and to strike the defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART; the defendant's motion to dismiss is DENIED; and the plaintiff's motion to stay proceedings is DENIED as moot.¹

I. BACKGROUND

On January 20, 2016, the plaintiff and the defendant were involved in a car accident on a public roadway in Dingham Township, Pike County, Pennsylvania. On July 6, 2016, the plaintiff filed a complaint against the defendant in the Court of Common Pleas of Pike County, (See Doc. 1, at Ex. A). The complaint contains one count alleging negligence and carelessness on the part of the defendant in operating her vehicle, (Id. at ¶10-17). In two instances the complaint also alleges that the defendant acted "with reckless disregard for the safety of others" and with recklessness more generally, (Id. at ¶11(v), 17). The plaintiff's complaint specifically seeks compensatory costs for past medical care and property damage and costs for future medical care, (Id. at ¶16-17).

On July 28, 2016, the defendant removed the plaintiff's personal injury action from state court by filing a notice of removal in this court, (See Doc. 1). The notice of removal was premised on diversity, but the defendant did not plead that diversity existed at the time the plaintiff initiated the action in state court. Instead, the notice of removal provides that diversity "exists" because the plaintiff "is a citizen of Pennsylvania" and the defendant "is a citizen of New York" in the present tense alone, (See Doc. 1, at ¶6). The notice does not indicate the status of the parties at the time of the commencement of the action.

On August 5, 2016, the defendant responded to the plaintiff's complaint by filing the motion to dismiss now pending before the court. The motion to dismiss seeks dismissal of any claims of recklessness which might entitle the plaintiff to punitive damages. On August 5, 2016, the plaintiff filed a motion seeking entry of default, (See Doc. 5), because the defendant's responsive motion was filed one day late and, therefore, untimely. The court denied the plaintiff's motion for entry of default before the Clerk of Court could enter default, (See Doc. 8).

In response to the court's order denying entry of default, the plaintiff filed the remaining motions before the court, a motion to remand, a motion to rescind and reconsider the August 5, 2016, Order and to strike the defendant's motion to dismiss as untimely, and a motion to stay proceedings pending the outcome of the various motions before the court. The plaintiff did not respond to the defendant's initial motion to dismiss. However, the remaining motions have been fully briefed and all four motions are now ripe for resolution.

II. THE PLAINTIFF'S MOTIONS

A. The Plaintiff's Motion to Remand²

The plaintiff's motion to remand alleges that the court lack's subject-matter jurisdiction based on a defect in the defendant's notice of removal. Specifically, the plaintiff highlights that the notice of removal fails to state that diversity existed both at the time of removal and at the time of the filing of the complaint in state court. The court construes this as a technical defect not requiring dismissal and will grant the defendant leave to amend her notice of removal to cure the deficiency.

I. Legal Standard

Section 1441(a) of Title 28 of the United States Code provides that "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 . . . to the district court of the United States." At all times this removal statute should be "strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).

Motions to remand may allege "(1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure." Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). If the motion to remand is made on jurisdictional grounds, "[t]he party asserting jurisdiction bears the burden of showing the action is properly before the federal court." Scanlin v. Utica First Ins. Co., 426 F. Supp. 2d 243, 246 (M.D. Pa. 2006) (quoting Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir. 2005)). "Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts should be resolved in favor of remand." Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). Similarly, the defendant is also required to establish that all procedural requirements for removal have been met. Baldy v. First Niagara Pavilion, C.C.R.L., LLC, 149 F. Supp. 3d 551, 555 (W.D. Pa. 2015).

ii. Discussion

The defendant's notice of removal was premised on diversity jurisdiction. Diversity actions are defined as civil actions between citizens of different states "where the matter in controversy exceeds the sum or value of $75,000.00." 28 U.S.C. §1332(a). Complete diversity between all plaintiffs and all defendants must exist. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)). For purposes of determining citizenship, "[a] natural person is deemed to be a citizen of the place where he is domiciled." Id. It is also hornbook law that "the jurisdiction of the court depends upon the state of things at the time of the action brought." Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71 (2004) (quoting Mollan v. Torrance, 22 U.S. 537, 539 (1824)). This "time-of-filing rule" requires that the facts giving rise to diversity jurisdiction exist at the time of the plaintiff's initial complaint, including the parties' citizenship status. See id.

If diversity exists, a defendant may remove the action by filing of a notice of removal within 30 days of the defendant's receipt of the initial pleading setting forth the claim for relief. 28 U.S.C. §1446(a)-(b)(1). The notice of removal should contain "a short and plain statement of the grounds for removal." Id. §1446(a).³ If the grounds are premised on diversity, the notice must allege diversity at the time of the commencement of the action and at the time of the notice filing. Moser v. Bostitch Div. of Textron, Inc., 609 F. Supp. 917, 918-19 (W.D. Pa. 1985).

The plaintiff does not challenge removal based on the lack of diversity in fact. He alleges a technical defect in the notice of removal because it fails to state that diversity of citizenship existed both at the time of removal and at the time of the filing of the complaint. Thus, the plaintiff's motion does not allege a lack of actual subject-matter jurisdiction, nor does it allege a procedural defect in the removal process. Instead, the plaintiff has illuminated a pleading defect. Defendant's allegation of diversity of citizenship in her notice of removal appears deficient. It alleges that the parties are diverse in citizenship in the present tense alone and does not state the citizenship of the parties at the time of the initial filing of the complaint. However, this is a technical, not substantive, deficiency that can be cured.

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts" to fix jurisdictional defects in a pleading. 28 U.S.C. §1653. "Section 1653 gives both district and appellate courts the power to remedy inadequate jurisdictional allegations, but not defective jurisdictional facts." USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 204 (3d Cir. 2003). Although an amendment after the 30 day filing period may not allege new grounds for jurisdiction, it may be allowed to cure technical deficiencies. See Kinney v. Columbia Savings & Loan Ass'n, 191 U.S. 78, 83-84 (1903) (finding no error where the circuit court allowed the defendant to amend its notice of removal to include allegations of diversity at the time the suit was initially commenced); Xia Zhao v. Skinner Engine Co., Civ. Action No. 11-7514, 2012 WL 1758145, at *2 (E.D. Pa. 2012) (finding amendment, not remand, more appropriate where there was a technical deficiency in the defendant's notice of removal); Ellerbee v. Union Zinc, Inc., 881 F. Supp. 162, 164-65 (E.D. Pa. 1995) (same); Stellwagon v. Chemlawn Serv. Corp., Civ. A. No. 92-6437, 1993 WL 9025 (E.D. Pa. Jan. 11, 1993) (granting defendant's motion to amend a notice of removal after the 30 day filing time-line where the notice merely alleged citizenship in the present tense and not at the time of the commencement of the suit); Moser, 609 F. Supp. at 918-19 (W.D. Pa. 1985) (same).

In her response to the plaintiff's motion to remand, the defendant has admitted to a grammatical error in the notice, but never affirmatively states that the plaintiff was a citizen of Pennsylvania and that she was a citizen of New Jersey at the time the initial complaint was filed in state court. Similarly, the plaintiff does not...