Opinion
Civil Action No. 99-5325
February 7, 2000
MEMORANDUM AND ORDER
On September 27, 1999, the plaintiff Timothy R. Johnson filed a pro se complaint in the Court of Common Pleas of Montgomery County, Pennsylvania. The following defendants were named in Johnson's state court complaint: (1) Martin F. Horn, Secretary of the Pennsylvania Department of Corrections; (2) Donald T. Vaughn, Superintendent of the State Correctional Institute at Graterford (SCI-Graterford); (3) Greg Rosas, Deputy Superintendent at SCI-Graterford; (4) Donna Hale; (5) Dr. Kenan Vmar; (6) Frank Botts; (7) Dr. Kulaylat; and (8) Corrections Physician Services, Inc. In an attempt to effect service of this complaint, Johnson sent the complaint by first-class mail to the above-listed defendants.
On October 5, 1999, the Court of Common Pleas of Montgomery County granted Johnson's motion to proceed in forma pauperis. On October 8, 1999, John J. Talabar, Esquire filed an appearance on behalf of Horn, Vaughn, Rosas, and Hale. On October 26, 1999, Johnson filed a motion for a preliminary injunction. On October 27, 1999, Talabar, on behalf of Horn, Vaughn, Rosas, and Hale (collectively "the removing defendants"), filed a "petition" for removal to federal court. Two days later, on October 29, 1999, the removing defendants filed an amended "petition" for removal. In response, Johnson filed Plaintiff's Opposition to Removal Requested by Martin F. Horn, Donald Vaughn, Greg Rosas and Donna Hale Pursuant to 28 U.S.C. § 1441(a), et seq., which in essence is a motion to remand the case to state court. For the reasons setforth herein, Johnson's request to remand the case to state court will be denied.
The removing defendants never filed a response to the plaintiff's motion to remand.
DISCUSSION
Pursuant to 28 U.S.C. § 1446(a), a defendant or defendants desiring to remove any civil action from a state court to a federal district court shall file a notice of removal in the district court. See 28 U.S.C. § 1446(a). The notice of removal must be filed within thirty days after the removing defendant receives the initial pleading setting forth the claim for relief. See 28 U.S.C. § 1446(b).
The relevant provisions of 28 U.S.C. § 1446 provide:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, 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 thirty 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.28 U.S.C. § 1446(a)-(b).
Although the removal statute does not explicitly so state, it is well-established that in cases involving multiple defendants all defendants must join in the notice of removal. See Gableman v. Peoria, Decatur Evansville Ry. Co., 179 U.S. 335, 337 (1900); Chicago, Rock Island, Pacific Ry. Co. v. Martin, 178 U.S. 245, 247-48 (1900); Getty Oil, Div. of Texaco, Inc. v. Insurance Co. of N. America, 841 F.2d 1254, 1262-63 (5th Cir. 1988). Pursuant to this "rule of unanimity," all defendants must join in the notice of removal or otherwise consent to the removal within the thirty-day period set forth in 28 U.S.C. § 1446 in order to perfect removal. See Getty Oil, 841 F.2d at 1262-63; Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985); Collins v. American Red Cross, 724 F. Supp. 353, 359 (E.D.Pa. 1989); McManus v. Glassman's Wynnefield, Inc., 710 F. Supp. 1043, 1045 (E.D.Pa. 1989).
There are, however, exceptions to the unanimity requirement that do not require all of the defendants to join in the notice of removal or otherwise consent to the removal. One such exception provides that "defendants who have not been served with the initial pleadings pursuant to 28 U.S.C. § 1446(b) at the time the notice of removal is filed are also not required to join in the notice of removal or otherwise consent to removal." Ogletree v. Barnes, 851 F. Supp. 184, 187 (E.D.Pa. 1994) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 540-41 (1939); Thompson v. Louisville Ladder Corp., 835 F. Supp. 336, 337 n. 3 (E.D.Tex. 1993);Creekmore v. Food Lion, Inc., 797 F. Supp. 505, 508 n. 4 (E.D.Va. 1992);Moody v. Commercial Ins. Co. of Newark, N.J., 753 F. Supp. 198, 200 n. 3 (N.D.Tex. 1990); Knowles v. American Tempering Inc., 629 F. Supp. 832, 835 (E.D.Pa. 1985); Lewis, 757 F.2d at 68).
In this case, of the eight defendants listed on the plaintiff's original state court complaint, only four defendants consented to the removal of the case to federal court. Thus, according to the requirements for removal, if the other four defendants were properly served in the state court action, the failure to have their consent to remove would be fatal to the removal petition.
The issue, therefore, is whether Vmar, Botts, Kulaylat, and Corrections Physician Services, Inc. (collectively the "non-removing defendants") were properly served in the state court action. In his motion to remand, and on the certificate of service attached to the state court complaint, Johnson acknowledges that he attempted to effect service on all of the defendants by mailing the complaint to them via first-class mail.
In Pennsylvania, however, service of original process by mail, even if certified, is not proper. See Pa. R. Civ. P. 400. Thus, in order to properly serve the defendants, Johnson was required to have the sheriff serve the defendants and could not effectuate such service through the mailing of the complaint via first-class mail. Therefore, the non-removing defendants were never properly served with the complaint in the state court action. Thus, their failure to sign the notice of removal or to consent otherwise to the removal is not fatal to the removal petition. Accordingly, I will deny Johnson's motion to remand the action to the Court of Common Pleas of Montgomery County on this ground.
Rule 400(a) of the Pennsylvania Rules of Civil Procedure provides that "[e]xcept as provided in subdivisions (b) and (c), and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the sheriff." Pa. R. Civ. P. 400(a). The exceptions mentioned in Rule 400(a) are inapplicable here.
Johnson also requests that this court remand the action to state court on the ground that removal will split the case because part of the action will remain in the Court of Common Pleas of Montgomery County while the other part of the action will be litigated in federal court. As explained above, no defendants have been properly served in the state court action and thus, there is no action in the state court at this present time. Thus, I will deny Johnson's motion to remand the action to the Court of Common Pleas of Montgomery County on this ground.
In his motion, Johnson also argues that this court should remand the case to state court because he should not be required to pay the filing fee to remove the case to federal court. The court notes that on the date that the removing defendants filed their notice of removal, the defendants simultaneously paid to the district court a filing fee of $150. This fee covers the fee to remove the case to federal court and thus, remand is not necessary on this ground.