Spencer v. CMH Homes, Inc. et al

Filing 20

MEMORANDUM (Order to follow as separate docket entry) re 14 Joint MOTION to Remand to State Court filed by Rick Romig, Cynthia A. Romig, RCR Construction and Excavating, LLC, Ricky L. Romig Signed by Honorable James M. Munley on 3/30/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DOROTHY SPENCER and
KENNETH SPENCER,
Plaintiffs

:
No. 3:17cv298
:
:
(Judge Munley)
:
v.
:
:
CMH HOMES, INC., d/b/a CLAYTON :
HOMES-BLOOMSBURG; CMH
:
MANUFACTURING, INC.; RCR
:
CONSTRUCTION AND EXCAVATING, :
LLC; RICK ROMIG, a/k/a RICHARD
:
ROMIG; RICKY L. ROMIG; and
:
CYNTHIA A. ROMIG,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiffs Dorothy Spencer and Kenneth Spencer (hereinafter
“plaintiffs”) assert a myriad of claims arising from their purchase of a
mobile home from Defendants CMH Homes, Inc. d/b/a Clayton HomesBloomsburg, and CMH Manufacturing, Inc. (collectively “CMH
Defendants”). Before the court for disposition is plaintiffs’ and Defendants
RCR Construction And Excavating, LLC, Rick Romig a/k/a Richard Romig,
Ricky Romig, and Cynthia A. Romig’s (collectively “RCR Defendants”) joint
motion to remand this case to the Court of Common Pleas of Columbia
County, Pennsylvania. For the reasons that follow, the court will grant this
motion.

Background
The instant action arises from the CMH Defendants and RCR
Defendants’ construction and installation of a manufactured home. On
April 11, 2012, plaintiffs purchased a manufactured home from the CMH
Defendants for $121,603.27. (Doc. 2, Compl. ¶ 15). Pursuant to the
purchase agreement, the CMH Defendants agreed to place the
manufactured home on top of a nine (9) foot high poured wall foundation.
(Id. ¶ 23).
Subsequent to the purchase of the home, the CMH Defendants
employed the RCR Defendants to pour the wall foundation. (Id. ¶ 24). On
June 8, 2012, the RCR Defendants poured the foundation for the
manufactured home. (Id. ¶ 28). On June 11, 2012, the CMH Defendants
delivered and set plaintiffs’ home on the foundation. (Id. ¶ 29).
Plaintiffs moved into their new manufactured home on July 6, 2012.
(Id. ¶ 30). Shortly after moving in, plaintiffs observed a crack in the
foundation against the back wall. (Id. ¶ 33). On July 22, 2012, plaintiffs
discussed the crack in the foundation wall with the CMH and RCR
Defendants, explaining that water had begun to seep into the basement
through this crack. (Id. ¶ 35).

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Several months later, on May 9, 2013, plaintiffs notified the CMH
Defendants of additional issues with their home, including: more cracks in
the foundation walls and floor, improperly fastened entry door,
disconnected main support beams, unsealed wood sub-framing, and
challenges opening and closing various doors and windows throughout
the house. (Id. ¶¶ 38-42).
Based on these factual allegations, plaintiffs filed a nine-count
complaint in the Court of Common Pleas of Columbia County. (Doc. 2).
Plaintiffs assert the following eight (8) state law causes of action against
the CMH Defendants and RCR Defendants: Count I, breach of contract;
Count II, unjust enrichment; Count III, negligence; Count IV, breach of
express and implied warranties; Count V, breach of implied warranty of
fitness for a particular purpose; Count VI, violation of Pennsylvania Unfair
Trade Practices and Consumer Protection Law (hereinafter “UTPCPL”),
73 PA. STAT. § 201-1 et seq.; Count VIII, quantum meruit; and Count IX,
promissory estoppel. Plaintiffs also assert, in Count VII, a violation of the
Magnuson-Moss Warranty Improvement Act, 15 U.S.C. §§ 2301-12. On
February 17, 2017, the CMH Defendants filed a notice of removal. (Doc.
1). Plaintiffs and the RCR Defendants filed a joint motion to remand on

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March 13, 2017. (Doc. 14). The parties briefed their respective positions
and the matter is ripe for disposition.
Legal Standard
Federal law provides that defendants may remove a civil action filed
in a state court if the federal court would have had original jurisdiction over
the action. 28 U.S.C. § 1441(a). The removing defendants bear the
burden of proving the existence of federal jurisdiction. In re Processed
Egg Prods. Antitrust Litig., 836 F. Supp. 2d 290, 294 (E.D. Pa. 2011)
(citing Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3d Cir. 1995)).
Defendants must also establish that all pertinent procedural requirements
for removal have been met. Shadie v. Aventis Pasteur, Inc., 254 F. Supp.
2d 509, 514 (M.D. Pa. 2003) (citing Boyer v. Snap-On Tools Corp., 913
F.2d 108, 111 (3d Cir. 1990)). “Because lack of jurisdiction would make
any decree in the case void and the continuation of the litigation in federal
court futile, the removal statute should be strictly construed and all doubts
resolved in favor of remand.” Abels v. State Farm Fire & Cas. Co., 770
F.2d 26, 29 (3d Cir. 1985) (citations omitted).
Discussion
To remove a case from state to federal court, a defendant must

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simply file a notice of removal with the federal district court for the district
and division in which the state court action is pending. 28 U.S.C.
§ 1446(a). A defendant’s notice of removal must “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(b)(1).
In cases involving multiple defendants, “all defendants who have
been properly joined and served must join in or consent to the removal of
the action.” 28 U.S.C. § 1446(b)(2)(A). The Third Circuit Court of Appeals
has held that the failure of all defendants to join in removal is a defect in
removal procedure, but not a jurisdictional defect. Balazik v. Cty. of
Dauphin, 44 F.3d 209, 213 (3d Cir. 1995). As such, a party seeking to
remand pursuant to a procedural defect must file a motion to remand
under 28 U.S.C. §§ 1447(c) and 1446(a). Id.
The decision to enter a remand order on the basis of a defect in
removal procedure or for a lack of subject matter jurisdiction is within the
discretion of the district court, and, whether erroneous or not, is not
subject to appeal. Cook v. Wikler, 320 F.3d 431, 437 (3d Cir. 2003) (citing
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996)). The

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United States Supreme Court has noted that limiting review of remand
orders supports “Congress’s longstanding policy of not permitting
interruption of the litigation of the merits of a removed case.” Powerex
Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 238 (2007).
In the instant matter, plaintiffs and the RCR Defendants filed a timely
motion to remand under 28 U.S.C. § 1447(c), alleging a procedural defect
in the CMH Defendants’ notice of removal. Specifically, the CMH
Defendants failed to properly obtain the written consent of the RCR
Defendants to remove this action. Thus, according to plaintiffs and the
RCR Defendants, the court must remand this matter to state court.
In response, the CMH Defendants concede that the federal removal
statute requires all defendants who have been properly joined and served
to consent to removal. (Doc. 19, CMH Defs.’ Br. in Opp’n at 12-13). The
CMH Defendants further admit that they failed to obtain the RCR
Defendants’ consent to removal. (Id.) Acknowledging their removal’s
procedural shortcomings, the CMH Defendants argue that the “unique
circumstances presented in this matter”–namely an arbitration provision–
require the court to exercise its discretion and retain jurisdiction over this
case.

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The CMH Defendants cite no binding authority for the proposition
that an arbitration provision compels federal courts to retain jurisdiction
when confronted with a defect in the removal procedure, and our research
has uncovered none. Rather, federal law requires that in cases involving
multiple defendants, “all defendants who have been properly joined and
served must join in or consent to the removal of the action.” 28 U.S.C.
§ 1446(b)(2)(A).
We recently determined the significance of a codefendant’s consent
to removal. In A.R. v. Norris, we held that:
a removing defendant, in their notice of removal, may not
verify that all properly served codefendants consent to
removal. Rather, a codefendant’s consent to removal must
take the form of: (1) clearly and unambiguously joining in the
removing defendant’s notice of removal; or (2) filing a
separate written consent to removal with the court.
No. 3:15cv1780, 2015 WL 6951872, at *3 (M.D. Pa. Nov. 10, 2015); see
also Baldy v. First Niagara Pavillion, C.C.R.L., LLV, 149 F. Supp. 3d 551,
560-63 (W.D. Pa. 2015) (same).
Here, the RCR Defendants provided no indication that they joined
the CMH Defendants’ notice of removal. The RCR Defendants also failed
to file a separate written consent to removal with the court. Instead, the
RCR Defendants filed a motion to remand this matter. Thus, the CMH

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Defendants’ notice of removal is defective, and the court will remand this
action to state court.
Conclusion
For the above-stated reasons, the CMH Defendants notice of
removal is procedurally defective. Accordingly, the court will remand this
case to state court under 28 U.S.C. § 1447(c). An appropriate order
follows.

Date: 03/30/2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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