Fidelity National Title Insurance Corporation et al v. CRH Americas et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Malachy E Mannion on 11/17/21. (ao)

Case 3:21-cv-00688-MEM Document 14 Filed 11/17/21 Page 1 of 5

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
FIDELITY NATIONAL TITLE
INSURANCE COMPANY, s/b/m
LAWYERS TITLE INSURANCE
CORPORATION, et al.,
Plaintiffs

:
:
:

v.
CRH AMERICAS, INC., f/k/a
OLDCASTLE, INC., et al.,
Defendants

:

CIVIL ACTION NO. 3:21-688

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(JUDGE MANNION)

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:

MEMORANDUM
Pending before the court is the report of Magistrate Judge Karoline
Mehalchick which recommends that the plaintiff’s motion to remand be
granted and the instant action be remanded to the Court of Common Pleas
for Philadelphia County due to the failure of defendant Robert M. Mumma,
II, to timely remove the instant action and his failure to remove the instant
action to the proper venue. (Doc. 11). Defendant Mumma has filed objections
to the report (Doc. 12) to which plaintiffs have responded (Doc. 13).
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.

Case 3:21-cv-00688-MEM Document 14 Filed 11/17/21 Page 2 of 5

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, Asatisfy
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,
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.
Plaintiffs filed the instant action in the Court of Common Pleas for
Philadelphia County on January 23, 2020. Service was completed on
defendant Mumma on December 11, 2020, and on April 13, 2021, defendant
Mumma removed the action to this court. On April 19, 2021, defendant
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Mumma was directed to file a copy of all process, pleadings, and orders to
accompany his notice of removal, to which he responded on April 26, 2021.
Plaintiffs filed a motion to remand the action on May 26, 2021, 30 days
after defendant Mumma filed his supplemental response. After briefing,
Judge Mehalchick considered the motion and related materials. In doing so,
Judge Mehalchick determined that the plaintiff’s motion was untimely filed
pursuant to 28 U.S.C. §1446(b)(1) and filed in the wrong venue pursuant to
28 U.S.C. §1441(a). (Doc. 11).
Section 1446(b)(1) provides that the notice of removal filed by
defendant Mumma had to be filed “within 30 days after the receipt by
[defendant Mumma], 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 30 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.”
Defendant Mumma received service on December 11, 2020. He did not file
his notice of removal until April 13, 2021, well after the time allotted by
§1446(b)(1). Thus, the court agrees, defendant Mumma’s removal is
untimely. Defendant Mumma has filed no objections challenging Judge
Mehalchick’s finding of untimeliness. The court finds no clear error of record
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with respect to the finding of untimeliness and will, therefore, adopt Judge
Mehalchick’s report in this respect.
Moreover, pursuant to §1441(a), a defendant may remove an action to
the district court of the district and division embracing the place where the
action is pending. The action here was filed in Philadelphia, Pennsylvania,
located in the Eastern District of Pennsylvania. Despite this, defendant
Mumma removed the action to the Middle District. In this situation, if the
defect can be remedied, the court may transfer the case to the proper federal
district court, or if it cannot be remedied, the court may remand the case to
the court where it was originally filed. Judge Mehalchick determined that
defendant Mumma’s untimely filing requires remand of the action versus
transfer. Defendant Mumma apparently objects to this aspect of the report
arguing that he had previously engaged in an arbitration in Dauphin County
located in the Middle District. The instant action, however, was filed in the
Eastern District and must be removed to the Eastern District. The court
agrees that transfer to the proper district cannot remedy the defect of
untimeliness. As a result, Judge Mehalchick’s report will be adopted in this
respect as well.

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In light of the foregoing, the court will overrule defendant’s objections
to Judge Mehalchick’s report, adopt the report in its entirety, and grant the
plaintiff’s motion to remand. In accordance with the foregoing, an appropriate
order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: November 17, 2021
21-688-01

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