Oravic et al v. Target Corporation
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 2/8/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHERYL ORAVIC and,
COLLEEN KIRBY and
JOSEPH KIRBY, her husband,
NICHOLAS DURHAM and
Before the court for disposition is this case alleging unlawful
employment actions. For the following reasons, we will dismiss the case
for lack of jurisdiction.
Defendant Target Corporation employed Plaintiffs Cheryl Oravic and
Colleen Kirby (hereinafter “plaintiffs”) for several years. Defendant
Nicholas Durham served as the store manager where plaintiffs worked,
and Defendant Joseph Sivik served as the Executive Team Leader of
Guest Service. (Doc. 1, Exh. 1, Compl. ¶¶ 5 - 6).
In February 2014, Target terminated the plaintiffs’ employment. (Id.
¶¶ 26 - 30). Plaintiffs subsequently instituted the instant action alleging the
following causes of action: gender discrimination; age discrimination;
retaliation and loss of consortium.1 The discrimination claims are brought
pursuant to the Pennsylvania Human Relations Act, not federal law, and
the loss of consortium claim is brought pursuant to Pennsylvania common
Plaintiffs served Defendant Target with the complaint on June 3,
2016. (Doc. 1, Notice of Removal ¶ 2). Evidently, the individual
defendants have not yet been served. (Doc. 21, Pl.’s Status Report).
Defendant Target filed a notice of removal with this court on July1, 2016
asserting this court’s diversity jurisdiction. (Doc. 1, Notice of Removal).
On January 6, 2017, the court ordered Defendant Target to show
cause as to why the case should not be remanded for lack of jurisdiction.
(Doc. 16). Defendant filed its response on January 20, 2017. (Doc. 19).
Plaintiff filed a status report on service of the individual defendants on
January 30, 2017, and Target filed a letter response to the status report on
January 31, 2017. (Doc. 21, Doc. 22). Having considered these filings,
the notice of removal and the original complaint, we find that remand is
The loss of consortium claim is brought on behalf of Plaintiff Joseph
Kirby, Plaintiff Colleen Kirby’s husband.
Federal courts, being courts of limited jurisdiction, have a continuing
duty to satisfy themselves of jurisdiction before addressing the merits of a
case. Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1049 (3d Cir.
1993). Moreover, federal courts have an obligation to address issues of
subject matter jurisdiction sua sponte. Zambelli Fireworks Mfg. Co., Inc. v.
Wood, 592 F.3d 412, 418 (3d Cir. 2010) (citation omitted); Shaffer v. GTE
North, Inc., 284 F.3d 500, 502 (3d Cir. 2002).
In the removal context, a district court has the authority–indeed the
obligation–to remand a case sua sponte for lack of subject matter
jurisdiction. 28 U.S.C. § 1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.”); see Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48
F.3d 742, 750 (3d Cir. 1995) (“[Section 1447(c)] allows and indeed
compels a district court to address the question of jurisdiction, even if the
parties do not raise the issue.”). Following Third Circuit law, we strictly
construe the removal statutes against removal and resolve all doubts in
favor of remand. Steel Valley Auth. v. Union Switch & Signal Div., 809
F.2d 1006, 1010 (3d Cir. 1987).
The law provides that a civil action initiated in state court may be
removed to federal court by the defendant if the federal court would have
had original jurisdiction over the claim. 28 U.S.C. § 1441(a); Johnson v.
SmithKlilne Beecham Corp., 724 F.3d 337, 346 (3d Cir. 2013). “Diversity
of citizenship subject matter jurisdiction falls within the original jurisdiction
of the district court, pursuant to § 1332(a) of Title 28 of the United States
Code, and thus a state court case that implicates diversity jurisdiction may
generally be removed, provided that the defendant is not a citizen of the
state in which the action is brought, 28 U,.S. C. § 1441(b)(2).” Johnson,
724 F.3d at 346 (internal citation and quotation marks omitted).
Diversity jurisdiction under § 1332 requires complete diversity of
citizenship, that is, no plaintiff and defendant may be citizens of one state.
Id. “Diversity of citizenship must have existed at the time the complaint
was filed and at the time of removal and the burden is on the removing
party to establish federal jurisdiction.” Id. (internal citations omitted). And
as noted above, we construe the removal statute strictly, and resolve all
doubts in favor of remand. Id.
In the present case, we must determine if Defendant Target has
established diversity of citizenship between the plaintiffs and each of the
defendants. We find that it has not.
The notice of removal indicates that Defendant Target is a citizen of
Minnesota and the plaintiffs are citizens of Pennsylvania. (Doc. 1, ¶¶ 5 8). The notice does not mention the citizenship of the individual
defendants. Instead of asserting that these defendants have diverse
citizenship from the plaintiffs, Defendant Target argues that the individual
defendants are not a part of the case anymore. Specifically, the notice of
removal states “neither of the individuals has been served with the
complaint so they are not proper parties to the lawsuit.” (Id. p.2, n.1).
We must, however, look at diversity of jurisdiction/citizenship of the
parties at the time the complaint is filed as well as at the time of removal.
Houston v. T.C. Ry. Co. v. Shirley, 111 U.S. 358, 360-61(1884); Johnson,
724 F.3d at 346. As such, “[t]he propriety of removal . . . depends on
whether the case originally could have been filed in federal court.” City of
Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). Here,
Defendant Target did not meets its burden of establishing that diversity of
citizenship existed at the time the complaint was filed and when it was
Accordingly, we find that removal in this case is inappropriate and we
will order the case remanded to the Lackawanna County Court of Common
For the aforementioned reasons, we find that we lack jurisdiction
over the instant action. The removing defendant has not established that
complete diversity existed either at the time of filing the complaint or at the
time of removal. Thus, the case will be remanded to the Court of Common
Pleas of Lackawanna County, Pennsylvania. An appropriate order follows.
Date: Feb. 8, 2017
s/ James M. Munley
Judge James M. Munley
UNITED STATES DISTRICT COURT
The only address provided for the individual defendants in the
complaint is their business address of Dickson City, Pennsylvania. (Doc.
1, Exh. 1, Compl. ¶¶ 5 - 6). Exhibits attached to the plaintiffs’ status report
on service indicate that Defendant Durham has an address of Weatherly,
Pennsylvania, and Defendant Sivak has an address of Lady Lakes, Florida.
(Doc. 21). Nothing indicates that complete diversity ever existed.
Subsequent to the filing of the notice of removal and the passing of
the service deadline, plaintiffs have sought an extension of time to serve
the complaint on the individual defendants. As we find we do not have
jurisdiction, we will not rule on the motion. It is for the state court, not this
court, to rule upon the motion.
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