U.S. District Judge Michael M. Baylson
PHIADELPHIA -- Because sending a notice of removal is not the same as filing a notice of removal, the U.S. District Court for the Eastern District of Pennsylvania granted July 15 a motion to remand a lawsuit against a military academy.
U.S. District Judge Michael M. Baylson ruled on the case.
A man, whose identity has been concealed, sued Valley Forge Military Academy and College with allegations that he suffered physical and psychological injuries. He sued for negligence, negligent and intentional infliction of emotional distress, negligent failure to rescue, and negligence per se for failure to report suspected child abuse in violation of the Pennsylvania Child Protective Services Law.
The plaintiff is a resident of Ohio and filed the complaint April 17 in the Court of Common Pleas of Philadelphia County in Pennsylvania, VFMAC’s resident state. The academy responded with a notice of removal in the federal court April 19. Although the notice points out that the plaintiff’s residence in Ohio and the organization’s residence in Pennsylvania, it does not state that removal is proper because of diversity jurisdiction.
Ultimately, the plaintiff filed a motion to remand, alleging removal is not the right move. He pointed out that VFMAC’s notice of removal failed to point out the basis of the removal, and that the forum defendant rule bans removal since VFMAC was served before the removal took effect.
He also said the federal court doesn’t have jurisdiction because the state allegations in the case occurred in Pennsylvania. He added that VFMAC’s removal methods infringe on the Due Process Clause of the Fifth and 14th amendments in the U.S. Constitution. The federal court agreed and granted his motion to remand back to the Court of Common Pleas.
Although VFMAC argues that the removal was effective when it sent a copy of the notice April 22, and that it was completed when the notice of removal was filed April 19, the plaintiff said the removal was not effective until VFMAC filed a copy of the notice of removal with the Court of Common Pleas on May 10. He insists that the removal was not finished until VFMAC was “properly joined and served” on May 1, according to the opinion.
As for the court, it said that “Section 1446(d) provides that ‘promptly after the filing of such notice of removal [in federal court] the defendant… shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such state court, which shall effect the removal.’ VFMAC first contends that it complied with Section 1446(d) when it ‘sent’ a copy of the notice of the removal to the Court of Common Pleas via facsimile on April 22, 2019, before VFMAC was served May 1, 2019. This court disagrees.”
It pointed out that the notice of removal that was sent April 22 was not filed with the state court. There is not even a docket entry in the Court of Common Pleas for that date. Plus, if VFMAC’s claims that sending a copy of the notice to the Court of Common Pleas on April 22 was enough for an effective removal, why would it send a copy to the same court on May 10?
Ultimately, because VFMAC was properly served May 1, before it actually finished the required steps for removal, the district court determined the forum defendant rule bars removal because of diversity jurisdiction. The court also denied the partial motion to dismiss.
Still, on April 19, VFMAC also filed a notice of appearance in the federal court. Three days later it faxed a notice of removal to the prothonotary of the Court of Common Pleas and the plaintiff’s legal team. On May 1 the plaintiff officially served VMFAC via the Pennsylvania Rule of Civil Procedure 400.
On May 10 VFMAC filed a copy of the notice of removal with the prothonotary of the Court of Common Pleas. VMFAC then filed two more notices of appearance with the current federal court May 10. It went on to file a partial motion to dismiss for the negligent failure to rescue claim, stating that the plaintiff failed to properly state a claim under Federal Rule of Civil Procedure 12(b)(6). It also filed a motion to strike punitive damages.
The plaintiff then responded with the current motion to remand May 20.