Golembewski et al v. Rusek et al
Filing
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MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/22/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY GOLEMBEWSKI,
:
ET AL.,
:
Plaintiff
:
CIVIL ACTION NO. 3:16-2335
:
v.
:
(JUDGE MANNION)
STANISLAW RUSEK, ET AL.,
:
Defendant
MEMORANDUM
Presently before the court is a motion to remand filed by plaintiffs
Jeffrey Golembewski and Dorothea Golembewski on December 19, 2016,
(Doc. 3), and a motion for extension of time filed by defendants Stanislaw
Rusek, Antoni J. Szot and A&A Express, LLC on December 28, 2016, (Doc.
5). The parties dispute whether the court must grant the motion to remand
because the defendants failed to file their notice and petition for removal with
the appropriate court within thirty (30) days of service of the complaint. For the
reasons discussed below, the court will DENY the plaintiffs’ motion for remand
and GRANT the defendants’ motion for extension of time.
I.
BACKGROUND
On July 29, 2016, the plaintiffs filed a complaint in the Court of Common
Pleas of Luzerne County, Pennsylvania. (Doc. 5, Ex. A). The complaint
presents four (4) counts against the defendants arising from injuries suffered
by Jeffrey Golembewski in a motor vehicle accident on October 15, 2014. Id.
Defendant Stanislaw Rusek was served with the complaint on August 30,
2016. (Doc. 3, Ex. A).
On September 9, 2016, the defendants filed a notice and petition for
removal in the Court of Common Pleas of Luzerne County. (Doc. 5, Ex. B).
That same day, the defendants served a copy of the same on the plaintiffs’
counsel. (Doc. 5, ¶5). The defendants intended to file the notice and petition
for removal in the District Court for the Middle District of Pennsylvania, but a
Luzerne County caption rather than a Middle District caption was mistakenly
used on the certificate of service. (Doc. 5, ¶3).
On November 21, 2016, the defendants discovered the error and
“immediately” filed a “nearly identical” notice and petition for removal in the
District Court for the Middle District of Pennsylvania. (Doc. 5, p. 2).
On December 19, 2016, the plaintiffs filed a motion for remand based
upon the defendants’ untimely filing of the notice and petition for removal.
On December 28, 2016, the defendants filed a motion nunc pro tunc to
extend the time to file their notice and petition for removal.
II.
LEGAL STANDARD
“The notice of removal of a civil action or proceeding shall be filed within
30 days after receipt by the defendant, through service or otherwise, of a copy
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of the initial pleading...” 28 U.S.C. §1446(b). The federal court may remand
the case to state court if there is any defect other than the lack of subject
matter jurisdiction, such as the failure to file notice to remove within thirty (30)
days of receipt of the initial pleading. 28 U.S.C. §1447(c).
“When an act may or must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made after the time has
expired if the party failed to act because of excusable neglect.” Fed. R. Civ.
P. 6(b)(1)(B). “The determination of what sorts of neglect will be considered
‘excusable’ is an equitable one, taking account of all relevant circumstances.”
Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 381, 395
(1993) (holding that “an attorney’s inadvertent failure to file a proof of claim
by the bar date can constitute ‘excusable neglect’ within the meaning of
[Bankruptcy] Rule 9006(b)(1).”).
The Third Circuit held that a court must, at minimum, balance the
following five factors when considering whether an act or omission by a party
or party’s counsel qualifies as “excusable neglect”: (1) “whether the
inadvertence reflects professional incompetence such as ignorance of the
rules of procedure” (citing Campbell v. Bowlin, 724 F.2d 484 (5th Cir. 1984));
(2) “whether the asserted inadvertence reflects as easily manufactured
excuse incapable of verification by the court” (citing Airline Pilots v. Executive
Airlines, Inc., 569 F.2d 1172 (1st Cir. 1978)); (3) “whether the tardiness
results from counsel’s failure to provide for a readily foreseeable
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consequence” (citing United States v. Commonwealth of Virginia, 508 F.Supp.
187 (E.D.Va. 1981)); (4) “whether the inadvertence reflects a complete lack
of diligence” (citing Reinsurance Co. of Am., Inc. v. Administratia, 808 F.2d
1249 (7th Cir. 1987)); (5) “whether the court is satisfied that the inadvertence
resulted despite counsel’s substantial good faith efforts toward compliance.”
Consolidated Freightways Corp. of Del. v. Larson, 827 F.2d 916, 919 (1987).
III.
DISCUSSION
The plaintiffs contend the matter should be remanded to the Luzerne
County Court of Common Pleas because the defendants failed to file a timely
notice and petition for removal. (Doc. 4, p. 2). The plaintiffs essentially
interpret 28 U.S.C. §1446(b) as a per se rule, requiring remand whenever a
party fails to file their notice of removal within thirty (30) days. (Doc. 4, p. 3).
Therefore, the case must be remanded because the defendants’ counsel
failed to file notice with the District Court for the Middle District of
Pennsylvania within this time period.
The defendants do not dispute they indeed failed to deliver the notice
to the Middle District Court within thirty (30) days. Rather, they contend that
“due to a clerical error, the Luzerne County caption was used on the
certificate of service, although the Middle District caption was used on the
Notice and Petition for Removal.” (Doc. 5, ¶3). This mistake, they argue,
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constitutes “excusable neglect” under the Consolidated Freightways case.
827 F.2d 916 (3d. Cir. 1987). The court agrees.
As an initial matter, the plaintiffs are correct that failure to file notice of
removal within thirty (30) days is a sufficient ground for remand, but this does
not mean remand is required in such circumstances. Indeed, the court in
Consolidated Freightways rejected such a per se rule in determining
“excusable neglect” and instead adopted a case-by-case analysis. Id. at 919.
To interpret 28 U.S.C. §1446(b) as a per se rule is to ignore Federal Rule of
Civil Procedure 6(b)(1)(B) as well as the surrounding case law on “excusable
neglect”.
In Consolidated Freightways, the Third Circuit Court considered the
breadth of the concept of “excusable neglect.” Id. In finding that “excusable
neglect” encompassed more than simply acts or omissions beyond the control
of counsel, the court quoted a dissenting opinion from The Ninth Circuit:
“[t]his example evidences the drafters’ intent that de minimis
instances of neglect, such as the misaddressing of an envelope,
be excused. To hold that mailing a notice of appeal to the [wrong]
court is inexcusable although the rules explicitly require an
opposite result if notice is mistakenly sent to the court of appeals
defies explanation.” State of Oregon v. Champion Int. Corp., 680
F.2d 1300 (9th Cir. 1982).
The same reasoning applies here. Accordingly, the court must apply the
five factors listed above as prescribed by the Third Circuit Court. First, the
defendants’ counsel was not professionally incompetent or ignorant of the
rules of procedure as they did in fact file their notice and petition for removal
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within the required thirty (30) days on September 9, 2016. Similar to the late
notice of appeal at issue in Consolidated Freight, the defendants’ counsel
mistakenly filed the notice with the wrong court. This oversight, attributable to
an incorrect caption, does not amount to professional incompetence. Second,
the timely filing of the notice in state court clearly demonstrates that this was
not an attempt to create an “easily manufactured excuse.” Third, though this
type of error is avoidable by careful proofreading, such an error is not readily
foreseeable, particularly where the notice and petition each included the
correct Middle District caption. As the Third Circuit Court stated: “the court
recognizes that even the most diligent practitioners are susceptible to such
human error . . . [and] . . . such error can escape undetected even in the most
carefully run offices[.]” Id. at 920. Fourth, for these same reasons this
oversight does not “reflect[] a complete lack of diligence.” Id. at 919. Fifth, it
is clear the defendants’ counsel acted in good faith; counsel would have been
in compliance with the filing deadline but for a clerical oversight, and upon
discovery of the oversight counsel immediately corrected the mistake by filing
the notice with the appropriate court.
IV.
CONCLUSION
For the foregoing reasons, the court finds the defendants’ counsel’s
conduct constitutes “excusable neglect.” Therefore, the plaintiffs’ motion to
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remand is DENIED and the defendants’ motion for extension of time is
GRANTED.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: March 22, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2335-01.wpd
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