PHILADELPHIA – A judge has labeled a personal injury case defendant’s rationale for removing a case to federal court as both merely “wishful thinking” and an improper citation of federal statutes.
Plaintiff Bobby Hampton claimed that he suffered a severe electrical shock when he came into contact with a submerged, exposed high voltage electrical wire while he was working on a construction site.
Subsequently, Hampton sued Movie Grill Concepts XLIII, LLC (doing business as “Studio Movie Grill”), Willow Grove Park Mall, WG Park, LP, VCC LLC, and PREIT Services, LLC, as well as six unnamed defendants in the Philadelphia County Court of Common Pleas on Aug. 28.
Studio Movie Grill removed the case to the U.S. District Court for the Eastern District of Pennsylvania four days later, on Sept. 1, before Hampton served any defendants.
On Sept. 18, the Court ordered SMG to show cause why the Court should not remand the case the Court of Common Pleas for lack of subject matter jurisdiction and to provide information about its members. SMG responded and Hampton then filed a motion to remand.
In addition, the Court ordered WG Park and PREIT Services to provide information about their members and in response, both confirmed that they are citizens of Pennsylvania.
“The Court held a hearing on Oct. 19. During that hearing, counsel for WG Park and PREIT Services acknowledged that PREIT owns both entities, that PREIT is a business trust, and that PREIT has beneficiaries based in Pennsylvania,” Wolson said.
“Congress has authorized district courts to hear cases that are filed in a state court if the district court would ‘have original jurisdiction’ and the case is removed to the district court for the place where the state court case is pending. Whether Section 1441 permits removal of a particular case is a question of statutory interpretation.”
Section 1441(a) provides, “Except as otherwise expressly provided by Act of Congress, any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”
Section 1441(b)(2) provides an exception to this general rule: “A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”
Wolson opined that these statutory provisions contain no ambiguity.
Section 1441(a) permits removal only of cases over which district courts have “original jurisdiction”, or the case must be one that could be filed in a district court from the start. But, Wolson said SMG does not point to any other possible interpretation of Section 1441(a).
Wolson added that “nothing in Section 1441(b)(2) negates this conclusion” and “to the contrary, Section 1441(b)(2) applies only to cases removable solely on the basis of the jurisdiction under Section 1332(a) of this title.”
That language calls back to Section 1441(a)’s provision that only cases over which district courts have original jurisdiction.
“This case does not fall within the Court’s original jurisdiction. Both when Mr. Hampton filed it and today, it includes both plaintiffs and defendants that are citizens of Pennsylvania. This statute requires complete diversity among the parties, meaning no defendant can be a citizen of the same state as any plaintiff. This case does not have complete diversity,” Wolson stated.
“SMG invokes Section 1441(b)(2) and argues that the Court should determine diversity based only on the defendants who have been properly joined and served at the time of removal. That is, the statutory language about being properly joined and served only applies to determinations of when a case may not be removed because a defendant is a citizen of the forum state. The language has no bearing on whether a case is ‘otherwise removable,’ which turns on whether the Court has original jurisdiction.”
Wolson added such thinking would lead to “an absurd result”, where a district court’s removal jurisdiction would extend beyond its original diversity jurisdiction.
SMG’s position would permit removal of a personal injury case between two Pennsylvania residents if the defendant removed the case before he was served with a state court complaint, which, according to Wolson, would “blow a hole in the concept of limited federal jurisdiction.”
“The decision in Encompass Ins. Co. v. Stone Mansion Restaurant Inc. says nothing about disregarding certain defendants to determine whether diversity jurisdiction exists. Nor do the other cases that SMG cites, in which there was also complete diversity and a snap removal before a forum state was served,” Wolson said.
“SMG also points the Court to a footnote order from another Judge of this Court from 2012. Even in that case, it is not clear whether or not there was complete diversity. Regardless, the Court finds the footnote in that case unpersuasive. SMG’s argument makes it the king of wishful thinking, so it will have to go west, back to the [Philadelphia County] Court of Common Pleas to defend this case.”
Wolson stated the defense’s removal was “wishful thinking.”
“Two words sum up the basis on which Studio Movie Grill removed this case from the Philadelphia Court of Common Pleas: ‘Wishful thinking.’ SMG proposes to interpret the federal removal statute to allow removal of almost any case, as long as the defendant acts before the plaintiff can effectuate service. The result would make a mockery of the concept of limited jurisdiction for federal courts,” Wolson said.
“SMG’s wishful thinking runs headlong into the reality of the words of the statute that create removal jurisdiction. That statute only allows removal of cases that could have been filed in federal court in the first instance. Nothing in the statute, or in recent decisions to which SMG points, can change that fact.”
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-04298
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com