Latzanich v. James Hardie Building Products, Inc. et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; ORDER REMANDING CASE; finding as moot 5 Motion to Dismiss for Failure to State a Claim; granting 9 Motion to Remand to Court of Common Pleas of Monroe County; adopting 12 Report and Recommendations. (See order for details).Signed by Honorable Malachy E Mannion on 9/7/18. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN J. LATZANICH, II,

:

Plaintiff

:

CIVIL ACTION NO. 3:17-2389

:

(JUDGE MANNION)

v.

JAMES HARDIE BUILDING
:
PRODUCTS, INC., d/b/a JAMES
HARDIE INDUSTRIES, LTD., d/b/a :
CEMPLACK, and DOES 1-20,
:
Defendants
:
ORDER
Pending before the court is the report of Magistrate Judge William I.
Arbuckle, (Doc. 12), which recommends that the plaintiff’s motion to remand,
(Doc. 9), be granted, and defendant Hardie’s1 motion to dismiss the plaintiff’s
complaint, (Doc. 5), be dismissed as moot. Defendant Hardie has filed
objections to the report, (Doc. 13), along with a supporting brief, (Doc. 14).
Upon review, the court will adopt the report of Judge Arbuckle, as discussed
below.
On November 21, 2017, the plaintiff filed the instant action against

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As noted by Judge Arbuckle, although the plaintiff collectively lists as
defendants in the caption of his complaint James Hardie Building Products,
Inc., d/b/a James Hardie Building Products, Inc., d/b/a Cemplank, he clarifies
that he is actually referring to a single entity, to which this court will refer to as
“defendant Hardie.” The plaintiff also lists as defendants “Does 1-20.”
However, he does not mention these defendants anywhere in his complaint.

defendant Hardie in the Court of Common Pleas of Monroe County, in which
he sets forth several claims relating to allegedly defective siding which was
placed on his home. (Doc. 1-1). On December 22, 2017, defendant Hardie
filed a notice of removal to this court. (Doc. 1). Thereafter, on January 12,
2018, defendant Hardie filed a motion to dismiss the plaintiff’s complaint for
failure to state a claim upon which relief can be granted. (Doc. 5). A brief in
support of the motion to dismiss was filed on January 17, 2018. (Doc. 7). The
plaintiff filed a brief in opposition to the motion to dismiss on February 1,
2018, (Doc. 10), and defendant Hardie followed with a reply brief on February
12, 2018, (Doc. 11).
In the meantime, on January 16, 2018, the plaintiff filed a motion to
remand the matter to state court. (Doc. 9). The plaintiff did not file a separate
brief in support of the motion but, instead, included his legal arguments in
support of remand in the motion to remand itself. Defendant Hardie did not
respond to the motion for remand.
On July 30, 2018, Judge Arbuckle issued the instant report, in which he
recommends that the plaintiff’s motion for remand be granted and that the
defendant’s motion to dismiss be dismissed as moot. In doing so, Judge
Arbuckle noted that the plaintiff had explicitly and repeatedly waived his right
to recover more than a total of $74,000 in his original complaint. Judge
Arbuckle also found that the defendant had misinterpreted the value of the

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plaintiff’s damages, in that the waiver of any amount over $74,000 did not
amount to the plaintiff claiming damages of $74,000. Judge Arbuckle further
noted that the defendant did not make any allegation of bad faith on the part
of the plaintiff in limiting his damages to an amount not to exceed $74,000.
Defendant Hardie has filed objections to Judge Arbuckle’s report.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,

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the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
Defendant Hardie has objected to Judge Arbuckle’s report arguing that,
contrary to the mandates of Local Rule, (“L.R.”), 5.1, the plaintiff failed to file
a brief in support of his motion to remand and, as such, the motion is deemed
withdrawn in accordance with L.R. 7.4, which provides that if “a supporting
brief is not filed within the time provided in this rule the motion shall be
deemed withdrawn.” Defendant Hardie argues that it would be prejudiced by
any consideration of the plaintiff’s motion to remand because it did not have
an opportunity to respond to the motion it deemed withdrawn.2
Upon review, the plaintiff did brief his motion for remand, although he
did so improperly by incorporating his legal arguments into the motion itself,
instead of filing a separate document. While the court certainly does not
condone the plaintiff’s failure to follow the Local Rules of this court3 and would
advise the plaintiff to become familiar with, and follow, the Local Rules for all

2

Defendant Hardie provides that the plaintiff should not be excused from
following the Local Rules because, even though he is proceeding pro se, he
is a retired attorney out of the State of California. (Doc. 14, p. 5). A review of
the State Bar of California attorney registry confirms this information.
3

It is noted that the plaintiff also failed to file a certificate of service in
accordance with L.R. 4.2 and a certificate of concurrence/non-concurrence
in accordance with L.R. 7.1.
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future purposes, in its discretion,4 the court will not deem the plaintiff’s motion
to remand withdrawn for failure to file a brief where the brief is incorporated
into his motion.5
To the extent that defendant Hardie argues that it would be prejudiced
by the court’s consideration of the plaintiff’s motion to remand because it did
not have an opportunity to respond to the motion, a review of the motion
would have put defendant Hardie on notice of the plaintiff’s legal arguments
in support of his motion for remand and defendant Hardie could have either
sought guidance from the court with respect to the motion, or simply
responded to the motion, if it chose to do so. In any event, defendant Hardie
had the opportunity to raise any challenge to remand by way of its objections
to Judge Arbuckle’s report recommending that the plaintiff’s motion for
remand be granted.
In considering the matters before the court, because federal district
courts are courts of limited jurisdiction, the removal statutes are strictly

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Pursuant to L.R. 1.3, the court, in its discretion, may suspend
application of the rules in individual cases.
5

The court further notes that, where it appears from the face of the
complaint that the court lacks subject matter jurisdiction over the plaintiff’s
claims, the court has the authority to remand the matter, sua sponte, even
without consideration of the plaintiff’s motion to remand. See Liberty Mut. Ins.
Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995) (“Federal courts
have an ever-present obligation to satisfy themselves of their subject matter
jurisdiction and to decide the issue sua sponte . . .”).
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construed against removal. e.g., American Fire & Casualty Co. v. Finn, 341
U.S. 6 (1951); Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992)
(citations omitted); LaChemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir.
1974). If there are any doubts as to substantive and procedural jurisdictional
prerequisites, they must be resolved in favor of remand, e.g., Abels v. State
Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir. 1985); Sterling Homes,
Inc. v. Swope, 816 F.Supp. 319, 323 (M.D. Pa. 1993).
Under 28 U.S.C. § 1441(a), a defendant may remove an action brought
in state court to federal district court if the claims fall within the scope of
federal jurisdiction. See 28 U.S.C. §1441(a); Allbritton Commc’ns Co. v.
NLRB, 766 F.2d 812, 820 (3d Cir.1985). The removing defendant bears the
heavy burden of persuading the court to which the state action was removed
that it has jurisdiction under the removal statutes. Batoff, 977 F.2d at 851;
Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied,
498 U.S. 1085 (1991).
Removability is to be determined “only by reference to the plaintiff’s
initial pleadings,” Swope, 816 F.Supp. at 323 (citations omitted), at the time
of filing the petition for removal. Abels, 770 F.2d at 29. In considering the
pleadings, the court is mindful that the plaintiff is the “master of the case” and
may limit the claims in the complaint to keep the amount in controversy below
the jurisdictional threshold. Morgan v. Gay, 471 F.3d 469, 474 (3d Cir. 2006)

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(internal quotations and citation omitted). Moreover, the sum claimed by the
plaintiff controls, if the claim is apparently made in good faith. St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938).
As set forth by Judge Arbuckle, the plaintiff, on numerous occasions
throughout his complaint, stated that his claims, including all monetary and
injunctive relief, do not exceed $74,000, and he specifically limited the total
amount of all relief to an amount not to exceed $74,000. Moreover, to the
extent any judge or jury would find he was otherwise entitled, the plaintiff has
specifically waived any right to relief in an amount above $74,000. (Doc. 1-1,
¶¶71-72, 82-83, 89, 92, Prayer for Relief ¶¶ 1-2, 6). As indicated, the plaintiff
is entitled as the master of his complaint to limit the amount damages he
claims and, unless there is some claim of bad faith, the plaintiff’s claim of
damages controls. Nowhere in its filings, even after Judge Arbuckle made the
same observation, does defendant Hardie argue that the sums claimed by the
plaintiff were made in bad faith.
Further, although the plaintiff uses the conjunction “and” in the request
for relief section of his complaint, a reading of the complete complaint
indicates that the plaintiff does, in fact, request alternative remedies, neither
of which exceed the $75,000 jurisdictional threshold. To this extent, the
plaintiff indicates that he seeks to recover the costs to replace and paint the
defective portions of the siding, or in the alternative, have the siding

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completely replaced with a non-defective product.6 (Doc. 1-1, pp. 15-16).7
Within his complaint, the plaintiff specifically seeks to be reimbursed for the
cost of painting the defective siding in an amount of $4,100 (Doc. 1-1, p. 3)
and to install channels in an amount of $2,000 (Doc. 1-1, p. 15), and to have
the defective siding repainted every four to five years at a cost of
approximately $20,000 (Doc. 1-1, p. 4), or have new non-defective siding
placed on the entire house, including the cost of labor, paint and disposal in
the amount of approximately $30,000 (Doc. 1-1, pp. 27-28). As previously
discussed, the plaintiff avers that the total of these amounts added to the
unspecified amount for repair of damage to the underlying structure or
adjoining property, and any other monetary damages and injunctive relief,
does not exceed $74,000.8
6

Common sense dictates that, if the plaintiff obtains the relief of having
his siding completely replaced with a non-defective product, there would be
no need for the alternative remedy of replacing and painting the defective
portions of siding.
7

The plaintiff also seeks attorney’s fees. As the plaintiff is proceeding
pro se, he is not entitled to recover attorney’s fees, even if he is an attorney
himself. It is well-settled that pro se litigants are not entitled to recover
attorney’s fees, even if the pro se litigant is an attorney. See Spencer v.
Varano, 2018 WL 3352655, at *10 (M.D.Pa. July 9, 2018) (citing Kay v. Ehrler,
499 U.S. 432, 435-37 (1991); Zucker v. Westinghouse Elec., 374 F.3d 221,
225-30 (3d Cir. 2004); Sorto v. Dep’t of Homeland Sec., 2013 WL 4543240,
at *2 (M.D.Pa. 2013)).
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Defendant Hardie argues that Judge Arbuckle failed to account for the
(continued...)
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For all of the foregoing reasons, the court finds that the damages sought
in the plaintiff’s complaint, including the monetary and injunctive relief, does
not meet the jurisdictional prerequisite for removal of the action to this court.
As such, the motion for remand will be granted and defendant Hardie’s motion
to dismiss will be dismissed as moot.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1)

Defendant Hardie’s objections to the report of Judge
Arbuckle, (Doc. 13, Doc. 14), are OVERRULED.

(2)

The report and recommendation of Judge Arbuckle, (Doc.
12), is ADOPTED, as discussed.

(3)

The plaintiff’s motion to remand, (Doc. 9), is GRANTED.

(4)

Defendant Hardie’s motion to dismiss, (Doc. 5), is
DISMISSED AS MOOT.

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(...continued)
relief sought for damage to the underlying structure or to adjoining property.
However, the plaintiff did account for such relief in his complaint and it is the
plaintiff’s complaint to which the court looks in determining removability.
Although the plaintiff did not put a specific monetary amount on said relief, the
plaintiff indicated that the total relief, even accounting for said damage, does
not exceed $74,000, and that he would specifically waive any amount found
by a judge or jury to be over that amount.
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(5)

The instant action is remanded to the Court of Common
Pleas of Monroe County for all further proceedings.

(6)

The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 7, 2018
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2017 ORDERS\17-2389-01.wpd

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