REHMEYER v. PEAKE PLASTICS CORPORATION et al

Filing 21

MEMORANDUM AND OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 12/20/16. 12/20/16 ENTERED & COPIES MAILED, E-MAILED. COPIES MAILED TO UNREPS.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOANNE REHMEYER

v.

PEAKE PLASTICS CORPORATION,
et al.

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CIVIL ACTION

NO. 16-5690

MEMORANDUM
Bartle, J.

December 20, 2016
Before the court is the motion of plaintiff Joanne

Rehmeyer to remand this action to the state court because it was
first removed to the wrong district and then transferred here.
On October 21, 2016, plaintiff Joanne Rehmeyer filed
this products liability lawsuit for personal injuries in the Court
of Common Pleas of Philadelphia County against defendants Peake
Plastics Corporation, Autoform, Inc., Model Pattern Company, Inc.,
Parker-Hannifin Corporation, and Sidener Engineering Company, Inc.
On October 24, 2016, Parker-Hannifin, having learned
about the filing of the lawsuit, filed an Entry of Appearance with
the state court even before the complaint was served.

The

following day, on October 25, 2016, Parker-Hannifin filed a Notice
of Removal in the United States District Court for the Middle
District of Pennsylvania.

Parker-Hannifin stated that there was

diversity of citizenship of the parties and an amount in
controversy in excess of $75,000 exclusive of interest and costs.

The next day, October 26, Parker-Hannifin sent a letter
to Judge William W. Caldwell in the Middle District of
Pennsylvania.

The letter advised him that even though Rehmeyer

resides in York County in the Middle District, and the accident
underlying the claim took place in York County, Parker-Hannifin had
improperly removed the suit to that district, contrary to 28 U.S.C.
§ 1441(a).

Parker-Hannifin requested that the court transfer the

suit to the Eastern District of Pennsylvania, the correct forum,
where Philadelphia County is located.

On October 31, 2016, without

awaiting any response from Rehmeyer, Judge Caldwell transferred
the action to this court.
In the meantime on October 27, 2016, Rehmeyer served
defendant Peake Plastics with a copy of the complaint.
defendant Autoform, Inc. on October 28.

She served

Defendant Sidener

Engineering Company waived service on November 21 and defendant
Model Pattern waived service on November 23.
Once the case had been transferred here, Rehmeyer
filed a motion to remand the action to the state court.
Rehmeyer supports her motion with two arguments.

First,

Rehmeyer maintains that Parker-Hannifin removed the action to
the wrong forum under 28 U.S.C. § 1441(a) and that remand is the
only remedy.

Section 1441(a) provides, in relevant part, “[A]ny

civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be
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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.”

28 U.S.C. § 1441(a).

The suit was instituted in the Court of Common Pleas
of Philadelphia County, which is, as noted above, a part of the
Eastern District of Pennsylvania.

Consequently, under

§ 1441(a), the defendants were required to remove the action to
this district, not to the Middle District of Pennsylvania.
Section 1446 outlines the procedure for removal:
[a] A defendant or defendants desiring to
remove any civil action from a State court
shall file in the district court of the
United States for the district and division
within which such action is pending a notice
of removal[.]
[b] The notice of removal of a civil action
or proceeding shall be filed within 30 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.
“It is well settled that the removal statutes are to 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) (citing Abels v. State
Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985)); see
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941).

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Judge Caldwell transferred the action from the Middle
District of Pennsylvania to this district pursuant to 28 U.S.C.
§ 1406(a).

Section 1406(a) provides, “The district court of a

district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest
of justice, transfer such case to any district or division in
which it could have been brought.”

28 U.S.C. § 1406(a).

Rehmeyer contends that 28 U.S.C. § 1406 applies only
to actions originally brought in federal court, and thus it was
improperly used to correct the defect in the removal of this
action.

She maintains that the only remedy for the defect in

removal and for the improper transfer under § 1406(a) is to
remand the action to the state court.
“[V]enue questions are governed by either 28 U.S.C.
§ 1404(a) or 28 U.S.C. § 1406.”

Jumara v. State Farm Ins. Co.,

55 F.3d 873, 878 (3d Cir. 1995).

Section 1404(a) applies when

the original venue is proper and transfer to another proper
venue is sought.

Id.

Section 1406 in contrast applies when the

original venue is improper and provides for either the transfer
or dismissal of the action.

Id.

The language of § 1406 simply

requires that an action must be filed before it can be
transferred.

It does not say that an action must be originally

filed in federal court before § 1406 is applicable.

See

Mortensen v. Wheel Horse Products, Inc., 772 F.Supp. 85, 90
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(N.D.N.Y. 1991).

A case that has been removed to federal court

has, of course, also been filed in federal court.

Thus, § 1406

applies to actions removed from state court, not solely to
actions commenced in federal court.
Courts have often considered a motion to transfer an
action under § 1406(a) when an action has been removed to the
wrong district or division, rather than remand the action to the
state court.

17 James W. Moore, Moore’s Federal Practice

§ 111.37 (3d ed. 2016).

We agree with the United States

District Court for the Northern District of New York that an
action removed to the wrong federal district under §§ 1441 and
1446 is “more akin to an improper venue situation” and § 1406(a)
is the appropriate statute under which to consider a motion to
transfer due to defect in venue.

See Mortensen, 772 F.Supp. at

89.
Removal to the wrong federal district does not compel
remanding the action to the state court.
852 F.Supp. 218, 221 (S.D.N.Y. 1994).

See Ullah v. F.D.I.C.,

“When a case is removed

to the wrong district, the mistake does not require remand and
the interest of justice requires that the action be transferred
to the district court of proper venue.”

S.W.S. Erectors, Inc.

v. Infax, Inc., 72 F.3d 489, 494 n.3 (5th Cir. 1996) (citing
Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 364, 645
(5th Cir. 1994)).
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This procedural defect, of course, must be the subject
of an objection or it is waived.

However, such a defect may be

corrected by transfer to the correct district under § 1406(a).
Id.; see also 14C Charles Alan Wright et al., Federal Practice
and Procedure § 3732 (4th ed. 2016).
Rehmeyer’s reliance on Martin v. Farmers First Bank
for the proposition that this action must be remanded is
misplaced.
1992).

1992 U.S. Dist. LEXIS 19613 (E.D. Pa. Nov. 25,

Before the court in Martin was an action that was

removed from the Court of Common Pleas of Montour County to the
Eastern District of Pennsylvania.

Id. at *1.

This was the

incorrect district under § 1441(a) since Montour County is
situated in the Middle District of Pennsylvania.

Id. at *4-5.

The court stated it could not transfer the action to the Middle
District of Pennsylvania because 28 U.S.C. § 1404(a) only
permitted such a transfer where proper venue lay in the
transferor court.
action.

Id. at *5-6.

Id. at *6.

§ 1406(a).

It therefore remanded the

The court did not discuss or reference

See generally id.
Rehmeyer next contends that Parker-Hannifin filed the

Notice of Removal in violation of 28 U.S.C. § 1441(b)(2) by
removing the action to federal court before it or any defendant
was formally served.

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Section 1441(b)(2) states, “A civil action otherwise
removable solely on the basis of the jurisdiction under section
1332(a) of this title may not be removed if any of the parties
in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”
28 U.S.C. § 1441(b)(2).

It contains no language requiring that

the removing defendant must have been first served before filing
its notice of removal.

See 28 U.S.C. § 1441.

Furthermore, under the procedure for removal, § 1446
requires that the notice of removal 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.

See 28 U.S.C. § 1446(b) (emphasis added).

The statute

allows a defendant to learn of the initial pleading setting
forth the claim through service or otherwise.

Thus, a defendant

need not await service of process to remove the action.
Hutton v. KDM Transport, Inc., 2014 WL 3353237 at *4 (E.D. Pa.
July 8, 2014).

A defendant effectively waives service when it

removes an action prior to being served.

Valido-Shade v. WYETH,

LLC, 875 F.Supp.2d 474, 477 (E.D. Pa. 2012). 1

This is not an

1. Rehmeyer contends that removal was also improper because
Parker-Hannifin did not properly waive service under Rule 402 of
the Pennsylvania Rules of Civil Procedure. See Pa. R. C. P.
No. 402(b). However as we have stated, neither service nor
waiver of service is required prior to removal. Thus this
argument is inapposite.
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absurd or bizarre result as Rehmeyer suggests.
of service of process is encouraged.

In fact, waiver

Id.

Finally we note that Rehmeyer’s reliance on
§ 1441(b)(2) is misplaced.

Section 1441(b)(2) states: “A civil

action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen in which such action is
brought.”

28 U.S.C. § 1441(b)(2) (emphasis added).

Section

1441(b)(2) describes removal when at least one of the defendants
is a citizen of the forum state where the action was brought.
None of the defendants is a citizen of Pennsylvania, where the
action was instituted.
Parker-Hannifin properly removed the action prior to
receipt of service.

Accordingly, we will deny the motion of

Rehmeyer to remand the action to state court.

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