Finsterbusch v. Pennsylvania Department of Health et al
Filing
10
MEMORANDUM (Order to follow as separate docket entry) re 2 MOTION to Remand to State Court filed by Kathleen Finsterbusch.Signed by Honorable Malachy E Mannion on 10/13/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KATHLEEN FINSTERBUSCH,
:
CIVIL ACTION NO. 3:17-1024
Plaintiff
:
(JUDGE MANNION)
v.
:
PENNSYLVANIA DEPARTMENT
OF HEALTH, COMMONWEALTH
OF PENNSYLVANIA, and
DOUGLASS P. KOSZALKA,
:
:
:
Defendants
:
MEMORANDUM
Pending before the court is the plaintiff’s motion to remand. (Doc. 2).
Upon review, the plaintiff’s motion will be granted.
By way of relevant background, the plaintiff filed the instant action on
May 18, 2017, in the Court of Common Pleas of Luzerne County alleging
violations of Title VII of the Civil Rights Act of 1964 and her rights under the
First Amendment through the Civil Rights Act, 42 U.S.C. §1983. By petition
dated June 12, 2017, the action was removed to this court by the defendant,
Pennsylvania Department of Health, (“PDH”), only. (Doc. 1).
On June 13, 2017, the plaintiff filed the instant motion to remand the
action to the state court. (Doc. 2). A brief in support of the plaintiff’s motion
was filed on June 22, 2017. (Doc. 5). On June 29, 2017, the defendant filed a
brief in opposition to the plaintiff’s motion for remand. (Doc. 6). A reply brief
was filed by the plaintiff on July 10, 2017. (Doc. 7).
The plaintiff initially argues that the instant action should be remanded
because not all of the defendants have joined in the removal in accordance
with 28 U.S.C. §1446. Specifically, the plaintiff argues that the defendant
Commonwealth of Pennsylvania and defendant Koszalka have not joined in
the removal.
Title 28 U.S.C. §1446 provides, in pertinent part:
(a) A defendant or defendants desiring to remove any civil action
or criminal prosecution 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 signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure
and containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and
orders served upon such defendant or defendants in such
action.
(b) The notice of removal of a civil action or proceeding shall 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 for relief upon which such action or
proceeding is based, or within thirty days after the service of
summons upon the defendant if such initial pleading has then
been filed in court and is not required to be served on the
defendant, whichever period is shorter.
-2-
In addition to the requirements found in §1446, the “rule of unanimity”
provides that all defendants must join in or consent to the removal of an action
to federal court. Ogletree v. Barnes, 851 F.Supp. 184, 186 (E.D.Pa. 1994)
(citing Gableman v. Peoria, D. & E. Ry. Co., 179 U.S. 335, 337 (1900);
Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245 (1900)). “Under this ‘rule of
unanimity,’ all defendants must join in the notice of removal or otherwise
consent to the removal within the thirty-day period set forth in §1446(b) in
order to perfect removal.” Id.
There are, however, some exceptions to the “rule of unanimity”. One
such exception is that “defendants who have not been served with the initial
pleadings pursuant to 28 U.S.C. § 1446(b) at the time the notice of removal is
filed are [ ] not required to join in the notice of removal or otherwise consent to
removal.” Id. Once an action has been properly removed, “the subsequent
service of additional defendants who do not specifically consent to removal
does not require or permit remand on a plaintiff’s motion.” Lewis v. Rego Co.,
757 F.2d 66, 69 (3d Cir.1985). In a situation where not all defendants have
been served at the time of removal, and therefore have not joined in or
consented to the removal, removal may nevertheless be effective provided the
notice of removal alleges that the defendants not joining in the notice of
removal were not served in the state court action. Id. at 68.
-3-
The statutes governing removal are 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) (quoting Steel Valley Auth. v. Union
Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987)).
In this case, to the extent that the plaintiff argues that the
Commonwealth of Pennsylvania was named as a separate party but did not
join in the removal, the defendant PDH argues that there is no indication from
the complaint that the Commonwealth of Pennsylvania was named as a
separate and distinct party. The court agrees. The caption of the plaintiff’s
complaint lists as defendants “Pennsylvania Department of Health,
Commonwealth of Pennsylvania, Douglas P. Koszalka, Individually.” Within
the complaint, the plaintiff uses “Pennsylvania Department of Health,
Commonwealth of Pennsylvania”, “Pennsylvania Department of Health” and
“Commonwealth of Pennsylvania” interchangeably, with no single allegation
directed toward the Commonwealth of Pennsylvania as a separate and
distinct party. Thus, there is no indication from the plaintiff’s complaint that the
Commonwealth of Pennsylvania was named as a separate or distinct entity.
With respect to defendant Koszalka, the defendants’ materials indicate
that as of the time of removal he had yet to be served with the complaint. The
plaintiff does not challenge this fact in her reply brief, but argues only that
-4-
defendant PDH did not file a corrected notice of removal to include defendant
Koszalka, who was apparently served subsequent to removal. 1
Since it is undisputed that defendant Koszalka had not been served with
the complaint at the time it was removed, as discussed above, he was not
required to expressly join in or consent to the removal. However, despite this,
defendant PDH’s notice of removal is defective because it does not provide
that defendant Koszalka was not joining in the notice of removal because he
had yet to be served in the state court action. See, Lewis v. Rego Co., 757
F.2d at 68; Scurko v. New Jersey state Police 2010 WL 2697108 (D.N.J. July
6, 2010).
1
It is unclear from the record exactly when defendant Koszalka was
served; however, the same counsel representing defendant PDH entered their
appearance on behalf of defendant Koszalka and filed an answer to the
complaint on his behalf on July 10, 2017. (Doc. 8, Doc. 9).
-5-
For this reason, the plaintiff’s motion to remand will be granted and the matter
will be remanded to the Court of Common Pleas of Luzerne County. 2 An
appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 13, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2017 MEMORANDA\17-1024-01.docx
2
The plaintiff also argues in her motion to remand that defendant PDH
has attempted to preserve sovereign immunity both in its removal papers and
in its answer to the complaint. By removing this action, the plaintiff argues that
defendant PDH has waived such immunity. Since defendant PDH “is clinging
to sovereign immunity”, the plaintiff argues that the matter should be
remanded to state court. Upon review, this argument relates to the potential
defenses available to PDH and not to whether the instant action was properly
removed or whether it should be remanded. As such, the plaintiff’s motion will
be denied on this basis.
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?