RADABAUGH et al v. OHIO CASUALTY INSURANCE COMPANY
Filing
11
MEMORANDUM OPINION indicating that, for reasons stated more fully within, this Court declines reconsideration of its Remand Order as requested in OCIC's motion 9 . Because of limitations upon this Court's jurisdictional reach, and due to procedural flaws in OCIC's initial petition for removal, OCIC's Motion for Reconsideration 9 is denied. Signed by Judge Nora Barry Fischer on 6/28/11. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES A. RADABAUGH, and
MARIAN D. RADABAUGH
Plaintiffs,
vs.
OHIO CASUALTY INSURANCE
COMPANY,
Defendant.
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Judge Nora Barry Fischer
Civil Action No. 11-708
MEMORANDUM OPINION
Pending before the Court is Defendant Ohio Casualty Insurance Company’s (“OCIC”)
“Motion for Reconsideration of Remand Order.” (Docket No. [9]). Plaintiffs James and Marian
Radabaugh (collectively, the “Radabaughs”) have filed a responsive brief. (Docket No. 10). For
the following reasons, OCIC’s motion [9] is DENIED and the Court’s original Remand Order
shall stand.
I.
Background
This civil action was commenced in state court on April 28, 2011. (Docket No. 1 at ¶ 1).
On May 27, 2011, OCIC filed a petition for removal from state court. (See Docket No. 1). OCIC
claimed that the instant case satisfied the requirements for diversity jurisdiction – that is, the
parties are of diverse citizenship and that the amount in controversy exceeds $75,000. (Id. at ¶ 8).
OCIC therefore claims that jurisdiction is proper under 28 U.S.C. § 1332 and that the instant
action is properly removable under 28 U.S.C. §§ 1441 and 1446. (Id.).
The Radabaughs filed their response to OCIC’s notice of removal on June 6, 2011.
(Docket No. 5). They based their argument largely upon the Declaratory Judgment Act and
Dairyland Insurance Company v. Warman, Civ. No. 10-1476 (February 3, 2011). (Docket No. 5
at ¶ 4.b).
On June 7, 2011, this Court remanded the case to state court. (Docket No. 7). The
Clerk’s Office sent the remand letter with a certified copy of this Court’s Order on June 8, 2011.
(Docket No. 8). The instant motion was filed two days later, on June 10. (Docket No. 9).
II.
Discusion
At the outset, this Court does not have jurisdiction to hear OCIC’s motion for
reconsideration. “An order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). Specifically, the Court’s Order was
premised on 28 U.S.C. § 1447(c) and a certified copy had been sent to the state court before any
motion was filed, so reconsideration is improper. See Things Remembered, Inc. v. Petrarca, 516
U.S. 124, 127 (1995); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 226 (3d Cir. 1995).
This motion is therefore moot due to this Court’s inability to reconsider the remand order.
Moreover, to the extent that OCIC presumes this Court incorrectly relied upon Dairyland
in remanding, (see Docket No. 9 at ¶ 4), the Court would make the following observations. A
proper petition for removal must be filed within thirty days of a defendant’s receipt of the
complaint. 28 U.S.C. § 1446(b). This thirty day window may not be extended by the Court. See,
e.g., Rosebud Holding, L.L.C. v. Burks, 995 F.Supp. 465, 467 (D.N.J. 1998); Balestrieri v. Bell
Asbestos Mines, Ltd., 544 F.Supp. 528, 529 (E.D. Pa. 1982); Maglio v. F. W. Woolworth Co.,
542 F.Supp. 39, 40 (E.D. Pa. 1982). Proper removal under 28 U.S.C. § 1446(a) requires that a
defendant seeking removal from state court include “a copy of all process, pleadings, and orders
served upon such defendant … in such action.”
Here, OCIC filed its petition for removal without any of the exhibits attached to the
original complaint served upon it. At no point in its petition for removal did OCIC allege that
these exhibits were not served upon it. It therefore appears that OCIC has failed to file “a copy of
all process, pleadings, and orders” served upon it in its May 27, 2011 filing. (See Docket No. 1).
Further, because OCIC admits that the original complaint was filed on April 28, 2011, (see
Docket No. 1), their proper petition for removal was, taking Memorial Day into account, due no
later than May 31, 2011.
It is now well past the deadline for filing a petition for removal under 28 U.S.C. §
1446(b). OCIC has still not yet complied with the requirements of 28 U.S.C. § 1446(a). Because
this Court may not extend the thirty day filing period under § 1446(b), remand of the case was
proper in the first instance.
III.
Conclusion
For the foregoing reasons, this Court declines reconsideration of its Remand Order as
requested in OCIC’s motion. (Docket No. [9]). Because of limitations upon this Court’s
jurisdictional reach, and due to procedural flaws in OCIC’s initial petition for removal, OCIC’s
Motion for Reconsideration [9] is DENIED.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record
Date: June 28, 2011
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