Summary
holding that removal based on a motion to amend a complaint to add federal claims was "premature"; the event permitting removal is an order granting leave to amend
Summary of this case from Dudley v. Putnam Inv. FundsOpinion
Civil Action No. 04-CV-2592.
July 13, 2004
ORDER — MEMORANDUM
AND NOW, this 13th day of July, 2004, IT IS HEREBY ORDERED that this action is REMANDED to the Philadelphia County Court of Common Pleas pursuant to 28 U.S.C. § 1447(c).
I. BACKGROUND
This action was removed to this Court from the Philadelphia County Court of Common Pleas ("Court of Common Pleas") on June 14, 2004. The Complaint alleges the following facts. Plaintiff Robert Rogers began working as a salesman at Defendant Humanscale Corp. ("Humanscale") on February 9, 1999. Between October 2000 and September 2001, Plaintiff made written and verbal complaints to Humanscale's managers about unwelcome personal advances by Defendant Ann Beck ("Beck"), who was employed in a supervisory position with Humanscale. Plaintiff was terminated in January 2002.
The Complaint asserts claims for sexual harassment and sex discrimination under the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951, et. seq. (Count I); assault and battery (Count II); negligence (Count III); and retaliation (Count IV).
All claims are asserted against Humanscale and Beck, with the exception of Count II, which is asserted only against Beck.
The Complaint was filed in the Court of Common Pleas on October 1, 2003. On November 12, 2003, Humanscale filed an Answer with New Matter, and on January 29, 2004, Beck filed an Answer with New Matter. On May 14, 2004, Plaintiff filed a Motion to Amend the Complaint to assert a claim pursuant to Title VII, 42 U.S.C. § 2000e, et. seq. ("Title VII"). This motion was served upon Humanscale and Beck on May 14, 2004. On June 4, 2004, Humanscale and Beck filed a Response to the Motion to Amend the Complaint. On June 14, 2004, Humanscale and Beck filed a Notice of Removal asserting that this Court has federal question jurisdiction over this proceeding pursuant to 28 U.S.C. § 1331. On June 16, 2004, Judge Matthew Carrafiello of the Court of Common Pleas entered an order dismissing Plaintiff's Motion to Amend without prejudice.
Since the Court of Common Pleas did not enter the order until after the case had been removed, the order is moot. See 28 U.S.C. 1446(d) (stating that after a notice of removal is filed, "the State court shall proceed no further unless and until the case is remanded").
Plaintiff has filed a Motion for Leave to Amend the Complaint in this Court. However, because this Court does not have subject matter jurisdiction over the claims in the Complaint of record in this action, the Court remands this case sua sponte to the Court of Common Pleas, and Plaintiff's Motion for Leave to Amend the Complaint is dismissed as moot.
II. LEGAL STANDARD
"A federal court has the obligation to address a question of subject matter jurisdiction sua sponte." Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999) (citingEmployer Ins. of Wausau v. Crown Cork Seal Co., Inc., 905 F.2d 42, 45 (3d Cir. 1990)). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c) ("Section 1447(c)"). Section 1447(c) compels a district court to address the question of jurisdiction, even if the parties do not address it themselves. Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995).
III. DISCUSSION
The Complaint does not state any claims under federal law. The Notice of Removal filed by Humanscale and Beck refers to Plaintiff's Motion to Amend the Complaint to assert a claim pursuant to Title VII filed in the Court of Common Pleas, as grounds for removal. That motion was not granted prior to removal.
Although the Complaint states that Plaintiff has "every intention of asserting related Federal Claims pursuant to 42 U.S.C. § 2000(e) et. seq. when the [United States Equal Employment Opportunity Commission] has completed its administrative review," (Intro. to Compl.), it does not, in fact, assert any federal claims.
According to 28 U.S.C. 1446(b) ("Section 1446(b)"):
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. . . .28 U.S.C. 1446(b). The Court's jurisdiction, therefore, depends on whether Plaintiff's Motion to Amend the Pleading, filed in the Court of Common Pleas, is considered "an amended pleading, motion, order or other paper" under Section 1446(b).
Although the Court of Appeals for the Third Circuit ("Third Circuit") has not yet ruled on the issue of whether a case can be removed from state court on the basis of a pending motion to amend a complaint to include federal causes of action, the courts that have considered the issue have found that removal on the basis of federal claims asserted in a motion to amend the complaint, prior to the court's ruling on the motion, is premature. See Sullivan v. Conway, 157 F.3d 1092, 1094 (7th Cir. 1998) ("Until the state court granted the motion to amend, there was no basis for removal. Until then, the complaint did not state a federal claim."); Hibbs v. Consolidation Coal Co., 842 F. Supp. 215, 217 (N.D.W.Va. 1994) (noting that the majority of district courts find that the 30-day removal period in 1446(b) begins to run when the state judge assents to the motion); Graphic Scanning Corp. v. Yampol, 677 F.Supp. 256, 259 (D. Del. 1988) ("[T]he commencement of the thirty-day period upon filing of the plaintiff's motion would force a defendant to speculate as to the state court's ruling and require a defendant to file his removal petition before the grounds for removal actually exist."); Hamilton v. Hertz Corp., 607 F. Supp. 1371, 1373 (S.D.N.Y. 1985) ("Generally, the time period [for removal] would start to run `after receipt' by defendants of a copy of the order [granting the motion to amend]. . . ." But see F.W. Myers Co., Inc. v. World Projects Int'l, Inc., 1996 WL 550135 at *3 (N.D.N.Y. 1996) (finding that defendant could remove on diversity grounds under Section 1446(b) starting when plaintiff moved to amend the complaint to include a higher amount in controversy, even though in the case of federal question jurisdiction an order of the court would be necessary).
This issue has been before the United States District Court for the Eastern District of Pennsylvania, but the court remanded on other grounds and, therefore, did not determine whether the removal was proper. See Jacob v. SmithKline Beecham, 824 F.Supp. 552, 554 n. 3 (E.D. Pa. 1993) (noting that defendant's removal while plaintiff's motion for leave to amend the complaint was pending in state court might make removal premature and therefore defective).
This Court holds that the commencement of the thirty day period under Section 1446(b) did not begin when Plaintiff filed the Motion to Amend the Complaint and that removal was therefore premature. Accordingly, the Court finds that it does not have subject matter jurisdiction over this action and that this matter should, therefore, be remanded to the Court of Common Pleas.
Neither side asserts that the Court has diversity jurisdiction. According to the Complaint, Plaintiff is a resident of Pennsylvania. There are no allegations regarding Defendants' citizenship in the Complaint or the Notice of Removal.