Foster v. City of Philadelphia
Foster v. City of Philadelphia
Opinion of the Court
MEMORANDUM
I. INTRODUCTION
On June 14, 2011, Plaintiff Violet Foster, as the administratix of the estate of Allen Wimberly, Jr., filed this action in the Philadelphia County Court of Common Pleas on behalf of Wimberly’s beneficiaries against Dr. Joseph Scogna, the Frankford Hospital of the City of Philadelphia, and the Frankford Hospital Torresdale Campus (collectively, “Medical Defendants”). All parties are residents of Pennsylvania, and the medical malpractice complaint only asserts state law claims. On June 22, 2011, Scogna became a third-party plaintiff when he filed a joinder complaint against the City of Philadelphia and a large group
II. BACKGROUND
Allen Wimberly, Jr. was an adult prisoner incarcerated at PICC, and Jonathan Jenkins was his cellmate. On March 16, 2009, Jenkins physically attacked Wimberly in their cell. Both men were known to suffer from mental illness and Jenkins had a record of violence against other prisoners. Joinder Compl. ¶¶ 51-52. Although Foster’s complaint does not indicate what happened immediately following the attack, Scogna alleges that prison personnel took Wimberly to the prison infirmary to stitch up his wounds but did not bring him to Frankford Hospital’s Emergency Department for sixteen hours. Def. Resp. ¶ 4.
Parties dispute what took place upon Wimberly’s arrival at the hospital. According to Scogna, he performed emergency surgery (a right frontal parietal craniectomy) “[s]oon after the decedent presented to Frankford Hospital.” Id. According to Foster, however, Wimberly did not receive the emergency surgery until four hours after his arrival. Foster claims Wimberly received a CT scan of his brain around 2:00 AM that revealed a large subdural hematoma. PL’s Compl. 5. Yet instead of performing surgery, Scogna and the rest of the medical personnel waited approximately two and a half hours until Wimberly became unresponsive and then performed a follow-up CT scan. Id. The scan indicated that the subdural hematoma had grown significantly, and at 6:00 AM, they performed emergency surgery. On March 22, 2009, Wimberly passed away due to his brain injury. Id. at 6.
III. DISCUSSION
Third-Party Defendants removed Foster’s state court complaint to federal court
A defendant may remove a civil action from state court to federal court if the latter has original jurisdiction. 28 U.S.C. § 1441(a). Original jurisdiction can be achieved under (1) Federal Question Jurisdiction (28 U.S.C. § 1331) or (2) Diversity Jurisdiction (28 U.S.C. § 1332). Here, all parties are citizens of Pennsylvania and therefore diversity jurisdiction is not an issue. The Third-Party Defendants, therefore, used Scogna’s § 1983 allegation in his joinder complaint as their basis for federal question jurisdiction. Yet Foster points out that her initial state court complaint did not provide any basis for federal question jurisdiction and thus the three originally named Medical Defendants could not — and did not — file the notice of removal. Motion to Remand ¶ 4.
Under 28 U.S.C. § 1441, the two relevant subsections state:
(a) 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
The Third Circuit Court of Appeals has not directly ruled on third-party defendant removal under 28 U.S.C. § 1441. Reviewing the District of New Jersey’s award of attorney fees stemming from a dispute over remand, the Third Circuit noted that it “ha[d] not yet decided ... whether a third-party defendant may properly remove under § 1441(c).” Roxbury Condo. Ass’n, Inc. v. Anthony S. Cupo Agency, 316 F.3d 224, 228 (3d Cir. 2003). In Cook v. Wikler, the Third Circuit held that it did not have jurisdiction to review a district court’s timely order remanding a case for improper third-party removal, but it added in a footnote that the Circuit has never directly addressed the question. 320 F.3d 431, 437 n. 6 (3d Cir. 2003).
The Sixth Circuit Court of Appeals has ruled that “[t]he majority view is that third-party defendants are not ‘defendants’ for purposes of § 1441(a).”
Addressing subsection (a), Judge Thomas O’Neill of this court recently ruled: “ ‘An overwhelming majority of federal courts ... have held that third party defendants may not remove state actions to federal court pursuant to 28 U.S.C. § 1441(a) because third party defendants are not ‘defendants’ within the meaning of the statute.’” Gola v. City of Philadelphia, 2011 WL 2313147, at *3, 2011 U.S. Dist. LEXIS 63279, at *9-10 (E.D. Pa. June 13, 2011) (citing Milton S. Hershey Med. Ctr. v. Grinnage, 2007 WL 4198434, at *1, 2007 U.S. Dist. LEXIS 85635, at *2 (M.D.Pa. Nov. 20, 2007)).
Addressing subsection (c), Judge O’Neill ruled that it “does not authorize removal of a case by a third party defendant because a third party claim is not ‘joined with’ a non-removable claim as the statute requires but instead is typically ‘antagonistic to’ the plaintiffs claims.” Gola, 2011 WL 2313147, at *3, 2011 U.S. Dist. LEXIS 63279, at *11. The Sixth Circuit explains that “the Federal Rules of Civil Procedure consistently use the term [“joined”] to refer to claims or pleadings that one party adds to claims or pleadings that the party has already made.” First Nat’l Bank of Pulaski, 301 F.3d at 465 (emphasis added) (citations omitted). Foster did not join the federal statutory claim (section 1983) to the state law claims she had already filed. Rather, Scogna inserted the federal civil rights claim in the joinder complaint.
Although the Third Circuit has not definitively decided the issue, I am persuaded by the rulings of its sister circuits and the long-accepted practice of deferring to the Plaintiffs choice of forum by treating the Plaintiff as the master of his own complaint. See, e.g., Wood v. Prudential Ins. Co. of Am., 207 F.3d 674, 678 (3d Cir. 2000) (“Under the well-pleaded complaint rule, a court determines whether a claim ‘arises under’ federal law from a plaintiffs complaint. A plaintiff is, thus, considered the ‘master of the complaint.’ ”) (citations omitted).
In 1990, Congress explicitly amended 28 U.S.C. § 1441(c) to include “within the jurisdiction conferred by section 1331 of this title,” and the Supreme Court has applied the “well-pleaded complaint rule” to § 1331. “Therefore, Congress’ explicit incorporation of § 1331 into § 1441(c) is also an implicit incorporation of the well-pleaded complaint rule; accordingly § 1441(c)
IY. CONCLUSION
Ultimately, “removal statutes ‘are to be strictly construed against removal and all doubts should be resolved in favor of remand.’” Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (citations omitted). Therefore, I will grant Plaintiffs Motion, and this matter is now Remanded to the Philadelphia County Court of Common Pleas.
ORDER
AND NOW, this 25th day of October 2011, it is ORDERED that Plaintiffs Motion to Remand (Doc. # 4) is GRANTED. This matter is now remanded to the Philadelphia County Court of Common Pleas.
. Prison Health Services; MHM Services, Inc. (Va Mental Health Management, Inc.); Bruce Herder (PPS Chief of Medical Operations); William Lawton (PICC Warden); Terrence Clark (PICC Deputy Warden); Karen Bryant (PICC Deputy Warden); Robert Weiss (PICC Social Work Supervisor); Chuck Daniels (PICC Social Work Supervisor); Arthur J. Blackman (PPS Alternative and Special Detention Warden); Terrance Worsely (PPS Correction Officer); Louis Giorla (PPS Commissioner); Clyde Gainey (PPS Deputy Commissioner); Reginald Hammond (PPS Deputy Commissioner); John Doe 1-14 (employees); Jane Doe 1-14 (employees).
. Scogna's complaint also accuses Jenkins of assault and alleges that the “additional defendants are liable for contribution and indemnity for any judicially determined damage(s).” Joinder Compl. ¶¶ 64, 57.
. Scogna takes issue with the fact that prior to filing a civil action in state court, Foster filed a federal court civil action in the Eastern District of Pennsylvania on behalf of Wimberly's estate and his beneficiaries. Plaintiff explains in her Motion to Remand that her "federal court complaint articulated a claim under 42 U.S.C. § 1983, as well as state .claims, for injuries Mr. Wimberly suffered .... It should be noted that the federal court and state court actions are being handled by separate counsel, and that the pendency of the federal action has no bearing on the validity or propriety of the Third-Party/Additional
. The Sixth Circuit adds: This is "the position taken by two of the leading treatises on civil procedure” and "is bolstered by the use of more expansive terms in other removal statutes.” First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456, 462-63 (6th Cir. 2002) (citing 16 Moore's Federal Practice § 107.1 1[1][b][iv], at 107-31 (Matthew Bender 3d ed. 2000) ("Third-party defendants are not defendants within the meaning of the removal statute....”); 14C Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3731
Reference
- Full Case Name
- Violet FOSTER, as the Administratix of the Estate of Allen B. Wimberly, Jr., and in her own right v. CITY OF PHILADELPHIA
- Cited By
- 6 cases
- Status
- Published