FOSTER v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 10/25/2011. 10/25/2011 ENTERED AND COPIES VIA ECF AND U.S. MAIL.(mo, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
VIOLET FOSTER, as the Administratix of
the Estate of ALLEN B. WIMBERLY, JR.,
and in her own right,
CITY OF PHILADELPHIA, et al.,
October _25, 2011
Anita B. Brody, J.
On June 14, 2011, Plaintiff Violet Foster, as the administratix of the estate of Allen
Wimberly, Jr., filed this action in the Philadelphia County Court of Common Pleas on behalf of
Wimberly’s beneficiaries against Dr. Joseph Scogna, the Frankford Hospital of the City of
Philadelphia, and the Frankford Hospital Torresdale Campus (collectively, “Medical
Defendants”). All parties are residents of Pennsylvania, and the medical malpractice complaint
only asserts state law claims. On June 22, 2011, Scogna became a third-party plaintiff when he
filed a joinder complaint against the City of Philadelphia and a large group of employees,
medical workers, and affiliates of the Philadelphia Industrial Correctional Center (“PICC”) and
the Philadelphia Prison System (“PPS”) (collectively, “Third-Party Defendants”).1 Scogna
Prison Health Services; MHM Services, Inc. (t/a Mental Health Management, Inc.); Bruce Herder (PPS Chief of
Medical Operations); W illiam Lawton (PICC W arden); Terrence Clark (PICC Deputy W arden); Karen Bryant
(PICC Deputy W arden); Robert W eiss (PICC Social W ork Supervisor); Chuck Daniels (PICC Social W ork
claims that Third-Party Defendants violated Wimberly’s rights under the Eighth and Fourteenth
Amendments to the United States Constitution and the decedent Wimberly’s general civil rights
under 42 U.S.C. § 1983.2 On the basis of Scogna’s federal claims, Third-Party Defendants filed a
Notice of Removal pursuant to 28 U.S.C. § 1441. In response, Foster filed a Motion to Remand
to the Philadelphia County Court of Common Pleas pursuant to 28 U.S.C. § 1447.
Allen Wimberly, Jr. was an adult prisoner incarcerated at PICC, and Jonathan Jenkins was
his cellmate. On March 16, 2009, Jenkins physically attacked Wimberly in their cell. Both men
were known to suffer from mental illness and Jenkins had a record of violence against other
prisoners. Joinder Compl. ¶¶ 51-52. Although Foster’s complaint does not indicate what
happened immediately following the attack, Scogna alleges that prison personnel took Wimberly
to the prison infirmary to stitch up his wounds but did not bring him to Frankford Hospital’s
Emergency Department for sixteen hours. Def. Resp. ¶ 4.
Parties dispute what took place upon Wimberly’s arrival at the hospital. According to
Scogna, he performed emergency surgery (a right frontal parietal craniectomy) “[s]oon after the
decedent presented to Frankford Hospital.” Id. According to Foster, however, Wimberly did not
receive the emergency surgery until four hours after his arrival. Foster claims Wimberly received
a CT scan of his brain around 2:00 AM that revealed a large subdural hematoma. Pl.’s Compl. 5.
Yet instead of performing surgery, Scogna and the rest of the medical personnel waited
Supervisor); Arthur J. Blackman (PPS Alternative and Special Detention W arden); Terrance W orsely (PPS
Correction Officer); Louis Giorla (PPS Commissioner); Clyde Gainey (PPS Deputy Commissioner); Reginald
Hammond (PPS Deputy Commissioner); John Doe 1 – 14 (employees); Jane Doe 1 – 14 (employees).
Scogna’s complaint also accuses Jenkins of assault and alleges that the “additional defendants are liable for
contribution and indemnity for any judicially determined damage(s).” Joinder Compl. ¶¶ 64, 57.
approximately two and a half hours until Wimberly became unresponsive and then performed a
follow-up CT scan. Id. The scan indicated that the subdural hematoma had grown significantly,
and at 6:00 AM, they performed emergency surgery. On March 22, 2009, Wimberly passed away
due to his brain injury. Id. at 6.
Third-Party Defendants removed Foster’s state court complaint to federal court under federal
question jurisdiction. Foster seeks to remand to state court because she argues that Third-Party
Defendants are not permitted to remove a case under 28 U.S.C. § 1441.
A defendant may remove a civil action from state court to federal court if the latter has
original jurisdiction. 28 U.S.C. § 1441(a). Original jurisdiction can be achieved under 1)
Federal Question Jurisdiction (28 U.S.C. § 1331) or (2) Diversity Jurisdiction (28 U.S.C. §
1332). Here, all parties are citizens of Pennsylvania and therefore diversity jurisdiction is not an
issue. The Third-Party Defendants, therefore, used Scogna’s § 1983 allegation in his joinder
complaint as their basis for federal question jurisdiction. Yet Foster points out that her initial
state court complaint did not provide any basis for federal question jurisdiction and thus the three
originally named Medical Defendants could not – and did not – file the notice of removal.
Motion to Remand ¶ 4.
Under 28 U.S.C. § 1441, the two relevant subsections state:
Scogna takes issue with the fact that prior to filing a civil action in state court, Foster filed a federal court civil
action in the Eastern District of Pennsylvania on behalf of W imberly’s estate and his beneficiaries. Plaintiff explains
in her Motion to Remand that her “federal court complaint articulated a claim under 42 U.S.C. § 1983, as well as
state claims, for injuries Mr. W imberly suffered . . . . It should be noted that the federal court and state court actions
are being handled by separate counsel, and that the pendency of the federal action has no bearing on the validity or
propriety of the Third-Party/Additional Defendants’ removal of Plaintiff’s state court action.” Motion to Remand ¶3
n.1. Foster’s federal suit is not before me. I am strictly addressing Foster’s state-law complaint; Scogna’s joinder
complaint; and Third-Party Defendants’ notice of removal.
Except as otherwise expressly provided by Act of Congress, 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 defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending. For purposes of removal under this chapter, the
citizenship of defendants sued under fictitious names shall be disregarded.
Whenever a separate and independent claim or cause of action within the
jurisdiction conferred by section 1331 of this title is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therein, or, in its
discretion, may remand all matters in which State law predominates.
The Third Circuit Court of Appeals has not directly ruled on third-party defendant removal
under 28 U.S.C. § 1441. Reviewing the District of New Jersey’s award of attorney fees
stemming from a dispute over remand, the Third Circuit noted that it “ha[d] not yet decided . . .
whether a third-party defendant may properly remove under § 1441(c).” Roxbury Condo. Ass’n,
Inc. v. Anthony S. Cupo Agency, 316 F.2d 224, 228 (3d Cir. 2003). In Cook v. Wikler, the Third
Circuit held that it did not have jurisdiction to review a district court’s timely order remanding a
case for improper third-party removal, but it added in a footnote that the Circuit has never
directly addressed the question. 320 F.3d 431, 437 n.6 (3d Cir. 2003).
The Sixth Circuit Court of Appeals has ruled that “[t]he majority view is that third-party
defendants are not ‘defendants’ for purposes of § 1441(a).” 4 First Nat’l Bank of Pulaski v.
The Sixth Circuit adds: This is “the position taken by two of the leading treatises on civil procedure” and “is bolstered by the use
of more expansive terms in other removal statutes.” First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456, 462-63 (6th Cir. 2002) (citing
16 Moore's Federal Practice § 107.11[b][iv], at 107-31 (Matthew Bender 3d ed. 2000) (“Third-party defendants are not defendants
within the meaning of the removal statute . . . .”); 14C Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice
and Procedure § 3731 (3d ed. 1998) (“Nor can third-party defendants brought into the state action by the original defendant exercise the
right of removal to the federal court . . . .”)); see, e.g., 28 U.S.C. § 1452(a) (granting removal power to any “party” in a bankruptcy
case). The court also cites an earlier opinion in the Southern District of New York in which the district court succinctly stated:
“Allowing removal by a third-party defendant brings into a federal court a suit between the original parties which has no independent
basis for federal jurisdiction. This is an unwarranted extension of the federal judicial power.” First Nat’l Bank of Pulaski, 301 F.3d at
464 (citing Burlingham, Underwood, Barron, Wright & White v. Luckenbach S.S. Co., 208 F. Supp. 544, 547 (S.D.N.Y. 1962)).
Curry, 301 F.3d 456, 461 (6th Cir. 2002) (citations omitted). See also, Spectator Mgmt. Group v.
Brown, 131 F.3d 120, 125-26 (3d Cir. 1997) (“In Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 107-09 (1941), the Supreme Court noted that the legislative history and language of the
removal statute shows that Congress intended to limit removal.”); Lewis v. Windsor Door Co.,
926 F.2d 729, 733 (8th Cir. 1991) (holding that third-party defendants were not permitted to
remove a case from state to federal court); Thomas v. Shelton, 740 F.2d 478, 488 (7th Cir. 1984)
(“[I]n the broad run of third-party cases . . . the third-party defendant cannot remove the case
under section 1441(c) . . . .”);
Addressing subsection (a), Judge Thomas O’Neill of this court recently ruled: ‘“An
overwhelming majority of federal courts . . . have held that third party defendants may not
remove state actions to federal court pursuant to 28 U.S.C. § 1441(a) because third party
defendants are not ‘defendants’ within the meaning of the statute.”’ Gola v. City of Philadelphia,
2011 U.S. Dist. LEXIS 63279, at *9-10 (E.D. Pa. June 13, 2011) (citing Milton S. Hershey Med.
Ctr. v. Grinnage, 2007 U.S. Dist. LEXIS 85635, at *2 (M.D. Pa. Nov. 20, 2007)).
Addressing subsection (c), Judge O’Neill ruled that it “does not authorize removal of a case
by a third party defendant because a third party claim is not ‘joined with’ a non-removable claim
as the statute requires but instead is typically ‘antagonistic to’ the plaintiff’s claims.” Gola, 2011
U.S. Dist. LEXIS 63279, at *11. The Sixth Circuit explains that “the Federal Rules of Civil
Procedure consistently use the term [“joined”] to refer to claims or pleadings that one party adds
to claims or pleadings that the party has already made.” First Nat’l Bank of Pulaski, 301 F.3d at
465 (emphasis added) (citations omitted). Foster did not join the federal statutory claim (section
1983) to the state law claims she had already filed. Rather, Scogna inserted the federal civil
rights claim in the joinder complaint.
Although the Third Circuit has not definitively decided the issue, I am persuaded by the
rulings of its sister circuits and the long-accepted practice of deferring to the Plaintiff’s choice of
forum by treating the Plaintiff as the master of his own complaint. See, e.g., Wood v. Prudential
Ins. Co. of Am., 207 F.3d 674, 678 (3d Cir. 2000) (“Under the well-pleaded complaint rule, a
court determines whether a claim ‘arises under’ federal law from a plaintiff’s complaint. A
plaintiff is, thus, considered the ‘master of the complaint.’”) (citations omitted).
In 1990, Congress explicitly amended 28 U.S.C. § 1441(c) to include “within the jurisdiction
conferred by section 1331 of this title,” and the Supreme Court has applied the “well-pleaded
complaint rule” to § 1331. “Therefore, Congress’ explicit incorporation of § 1331 into § 1441(c)
is also an implicit incorporation of the well-pleaded complaint rule; accordingly § 1441(c) cannot
be read as supplanting the well-pleaded complaint requirement of removal jurisdiction.” Cross
Country Bank v. McGraw, 321 F. Supp. 2d 816, 823 (S.D. W. Va. 2004). As Judge O’Neill
noted: “It seems rather drastic to force the plaintiff, whose choice of forum normally should be
honored, to litigate in a federal court that he did not choose and one to which his adversary
originally could not have removed.” Gola, 2011 U.S. Dist. LEXIS 63279, at *13 (citing Lowe’s
of Montgomery, Inc. v. Smith, 432 F. Supp. 1008, 1010 (D. Al. 1977)).
Ultimately, “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) (citations
omitted). Therefore, I will grant Plaintiff’s Motion, and this matter is now Remanded to the Philadelphia
County Court of Common Pleas.
s/Anita B. Brody
ANITA B. BRODY, J.
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