Efford v. Milam

368 F.Supp.2d 380

Lauren EFFORD, et al., Plaintiffs, v. Linda MILAM, et al., Defendants.

No. Civ.A. 04-6018.

United States District Court, E.D. Pennsylvania.

April 7, 2005.

Robert A. Hoffa, Cogan Station, PA, for Plaintiffs.

Edith M. Chew, West Chester, PA, for Defendants.

Memorandum and Order

YOHN, District Judge.

Currently pending before the court is plaintiffs' motion to remand this action to the Court of Common Pleas of Chester County, Pennsylvania on the ground that defendants, in filing their notice of removal with this court, failed to comply with 28 U.S.C. § 1446(a) and (b). Plaintiffs contend that defendants failed to include with the notice of removal all of the materials required by 28 U.S.C. § 1446(a), and that defendants' notice was untimely under 28 U.S.C. § 1446(b).

For the following reasons, plaintiffs' motion will be granted.

FACTUAL & PROCEDURAL BACKGROUND

Plaintiffs commenced their case, which deals with horse breeding rights, by filing a praecipe for writ of summons in the Court of Common Pleas of Chester County, Pennsylvania on February 18, 2004. Pl. Motion at ¶ 1; Def. Resp. at ¶ 1. This document stated that plaintiffs "have commenced an action in law against you which you are required to defend or a default judgment may be entered against you." Exh. A to Pl. Motion. The praecipe also contained the addresses of plaintiffs and defendants — plaintiffs Lauren and Robert Efford residing in Honeybrook, Pennsylvania plaintiff Margaret Kohn residing in Pfluerville, Texas, and defendants Linda and Milynda Milam residing in Bryan, Texas. Id. The document stated nothing regarding the factual or legal basis of the suit. Id. Service of process was made on defendants by certified mail on March 15, 2004. Pl. Motion at ¶ 2; Def. Resp. at ¶ 2. In April 2004, defendants' counsel contacted plaintiffs' counsel to inquire about the basis for the lawsuit. Pl. Motion at ¶ 4; Def. Resp. at ¶ 4. Plaintiffs' counsel responded with a letter dated April 13, 2004, which stated, in pertinent part:

The initial Complaint also contained a Breach of Contract action based upon your client's failure to pay [plaintiffs] certain fees from breedings, etc. The agreement is attached to the original Complaint.

In addition to these claims on behalf of [plaintiffs], the facts support a civil RICO claim. Pennsylvania state courts have jurisdiction over these claims. The predicate acts required under the statute are mail fraud. The United States mail was used on several occasions by your clients to begin the registration process. The enterprise utilized was the farm. As you are aware, civil RICO provides for treble damages. With the information I received, there is no doubt of a continuing pattern of fraud by [defendants]. I will use the allegations of the individuals I mentioned earlier to prove the continuing pattern of fraud.

Exh. D to Pl. Motion. On December 1, 2004, plaintiffs filed their complaint in the Chester County Court of Common Pleas. The complaint included one count under the civil remedies provision of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c), one count of breach of contract, one count of intentional interference with contractual relations, and one count of fraudulent misrepresentation. Exh. E to Pl. Motion.

On December 27, 2004, within thirty days of the filing of the complaint, defendants filed a notice of removal, asserting that this court has jurisdiction because of the federal question presented by plaintiffs' RICO count. On January 25, 2005, defendants filed the pending motion to remand, asserting that the notice of removal was statutorily inadequate as filed and untimely. On February 8, defendants filed their response to the motion.

DISCUSSION

In support of the motion to remand, plaintiffs contend first that defendants' notice of removal failed to comply with 28 U.S.C. § 1446(a), because it was accompanied only by a copy of the complaint, when "[t]he record and pleadings filed in the state court contain additional filings including a Writ of Summons." Def. Memo. at 2. In addition, plaintiffs argue that the notice of removal failed to comply with 28 U.S.C. § 1446(b), because it was untimely. Plaintiffs assert that under the second paragraph of § 1446(b), the notice should have been filed within thirty days of defendants' receipt of the April 13, 2004 letter, not within thirty days of the filing of the complaint, because the letter was an "other paper" signaling removability to defendants. Defendants respond that remand is not warranted for the non-inclusion of all of the state court materials. In addition, defendants assert that the notice of removal was timely, because it was filed within the thirty-day removal period commenced by defendants' receipt of the state court complaint, which defendants assert was the "initial pleading" under the first paragraph of § 1446(b). Alternatively, defendants contend that the April 13, 2004 letter did not qualify as an "other paper" under § 1446(b)'s second paragraph.

I. Adequacy of the Filing of the Notice of Removal under 28 U.S.C. § 1446(a)

A defendant seeking removal should file with the removal petition "a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). The failure to file the exhibits is not a jurisdictional defect. Dri Mark Prod., Inc. v. Meyercord Co., 194 F.Supp. 536, 538 (S.D.N.Y.1961); Covington v. Indem. Ins. Co., 251 F.2d 930, 932-33 (5th Cir.1958). Omissions which are merely formal or modal do not affect the right to remove and may be subsequently remedied. See 28 U.S.C. § 1447(b); Martinez v. Triumph Indus. Div. of the Metal Source Corp., No. 87-C116, 1987 WL 5412, *1 n. 2, 1987 U.S. Dist. LEXIS 258, at *1 n. 2 (N.D.Ill. Jan.15, 1987); Covington, 251 F.2d at 933.

Defendants admittedly failed to file the praecipe for writ of summons and the certificate of service with the notice of removal. The defect was remedied when defendants filed an amended notice of removal just over a month after the original removal notice was filed. Thus, plaintiffs' procedural challenge to defendants' removal petition is without merit.

II. Timeliness of the Notice of Removal under 28 U.S.C. § 1446(b)

The first paragraph of 28 U.S.C. § 1446(b) requires a defendant seeking to remove a civil action from a state court to file a notice of removal within thirty days of receipt, 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).¹ In Foster v. Mut. Fire, Marine & Inland Ins. Co., 986 F.2d 48 (3d Cir.1993), the Third Circuit addressed the issue of which documents qualify as "initial pleadings" under this paragraph, thus commencing the running of the removal period.² The plaintiff in Foster sought remand, asserting that the summons served on the defendant gave "sufficient notice of federal jurisdiction and that [the defendant] should have filed its Notice of Removal in federal court within thirty days" of receipt of the summons. Foster, 986 F.2d at 50-51. The defendant responded that the notice of removal was timely because it was filed within thirty days of the filing of the complaint. Id. at 51. The defendant contended that "the `initial pleadings' described in § 1446(b) refers only to complaints and not summons or writs of praecipe." Id.

The Foster court concluded that in deciding which documents commence the running of the thirty-day removal period, "the relevant test is not what the defendant purportedly knew" about the removability of the action, "but what these documents said." Id. at 54. The Foster court then adopted the rationale of the district court in Rowe v. Marder, 750 F.Supp. 718, 721 n. 1 (W.D.Pa.1990), aff'd, 935 F.2d 1282 (3d Cir.1991), which concluded that "at a minimum, anything considered a pleading must be something of the type filed with a court," and thus "limited the scope of its inquiry [into what qualifies as an `initial pleading'] to court-related documents, thus excluding correspondence."³ Foster, 986 F.2d at 53-54. Finally, the Third Circuit held as follows: "§ 1446(b) requires defendants to file their Notices of Removal within thirty days after receiving a writ of summons, praecipe, or complaint which in themselves provide adequate notice of federal jurisdiction." Id. Thus, the Foster court held that a praecipe for writ of summons may be an "initial pleading" under § 1446(b),⁴ but that a notice of removal must be filed within thirty days of a defendant's receipt of the praecipe only when it is sufficient to notify the defendant that the case is removable.

The praecipe in this case stated simply that defendants were being sued, gave no factual or legal basis for the case that would support federal jurisdiction, and contained the addresses of the parties, which showed that federal diversity jurisdiction could not be established, because plaintiff Kohn and defendants were all citizens of Texas. See Grand Union Supermarkets of the V.I. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir.2003) (stating that "[j]urisdiction under 28 U.S.C. § 1332(a)(1) requires complete diversity of the parties; that is, no plaintiff can be a citizen of the same state as any of the defendants"). Thus, pursuant to the Foster analysis, the initial pleading in this case did not commence the running of the thirty-day removal period under § 1446(b)'s first paragraph.

The second paragraph of 28 U.S.C. § 1446(b) states that "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). Plaintiffs contend that the April 13, 2004 letter...