BOGGS et al v. HARRIS et al, No. 2:2016cv00971 - Document 17 (W.D. Pa. 2016)
Court Description: OPINION on MOTION to Remand to State Court by ANNETTE BOGGS and ROY E. BOGGS 5 . Motion to remand is GRANTED. An appropriate order will be entered. Signed by Chief Judge Joy Flowers Conti on 12/22/16. (jp)
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BOGGS et al v. HARRIS et al Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROY E. BOGGS, an individual, and ANETTE BOGGS, his wife ) ) ) Plaintiffs, ) ) v. ) ) DARWIN D. HARRIS, an individual, and ) GETAWAY TOURS, INC. ) ) Defendants. ) ) Civ. No. 16-971 OPIN ION CONTI , Chief District J udge I. In tro d u ctio n Pending before the court is a m otion to remand filed by plaintiffs Roy Boggs and Annette Boggs (“plaintiffs”). (ECF No. 5.) On J une 28, 20 16, Defendants Darwin Harris (“Harris”) and Gateway Tours, Inc. (“Getaway Tours”) (together “rem oving defendants”) rem oved this case to this court based upon diversity of citizenship, after the only nondiverse defendant in the state action was voluntarily dism issed. (ECF No. 1.) Plaintiffs argue that the case should be rem anded because rem ovin g defendants waived their right to rem ove, or, in the alternative, because they did not file the notice of rem oval within the thirty-day tim e lim it under 28 U.S.C. § 1446(b). As set forth below, the court finds that rem oving defendants did not waive their right to rem ove, but that 1 Dockets.Justia.com rem oving defendants did file an untim ely notice of rem oval. For this reason, plaintiffs’ m otion to rem and will be granted. II. Pro ce d u ral H is to ry On Septem ber 29, 20 15, plaintiffs filed a com plaint in the Court of Com m on Pleas of Beaver County against defendants Harris, Gateway Tours, and Conley-Beaver Corporation (“Conley-Beaver”). (ECF No. 1). Harris and Getaway Tours filed a tim ely answer an d asserted a cross-claim against Conley-Beaver. (Id.) Plaintiffs are citizen s of Pennsylvania. (Id. ¶ 2.) Rem oving defendants Harris and Getaway Tours are citizens of Michigan. (Id. ¶ 4-5.) Defendant Conley-Beaver is a resident of Pennsylvania. (Id. ¶ 3.) The inclusion of Conley-Beaver as a defendant at the com m encem ent of this action precluded the filing of a federal lawsuit based upon diversity of citizenship. On May 17, 20 16, counsel for plaintiffs inform ed counsel for Conley-Beaver that plaintiffs had agreed to dism iss Conley-Beaver from this action upon consent from Harris an d Getaway Tours. (ECF No. 5 ¶ 15.) On May 18, 20 16, Harris and Getaway Tours consented to the discontinuance of Conley-Beaver via em ail correspondence sent to counsel for plaintiffs and counsel for Conley-Beaver. (Id. ¶ 16.) 1 On May 18, 20 16, Conley-Beaver sent em ail correspondence to counsel for plaintiffs confirm ing Harris’s and Getaway Tours’ consent to the discontinuance of Conley-Beaver, and requesting that plaintiffs prepare a stipulation of discontinuance of Conley-Beaver. (Id. ¶ 17.) 1 All parties agreed at the hearing that this consent would result in the dismissal of the crossclaim , which was filed by rem oving defendants against Conley-Beaver. 2 One May 23, 20 16, plaintiffs forwarded all defendants a stipulation for discontinuance of Conley-Beaver for signature. (Id. ¶ 18.) On May 31, 20 16, all defendants supplied plaintiffs with executed counterparts of the stipulation for discontinuance. (Id. ¶ 19.) On J une 15, 20 16, plaintiffs filed the fully executed stipulation with the state court. (Id.) On J une 28, 20 16, Harris and Gateway Tours filed a notice of rem oval on the basis of diversity jurisdiction. (Id.) Since learning on May 17, 20 16, about plaintiffs’ intent to dism iss Conley-Beaver from this action, defendants Harris an d Getaway Tours engaged in the following discovery: - May 18, 20 16, scheduled the independent m edical exam (“IME”) for Roy Boggs; - May 20 , 20 16, inquired about dates to conduct a vocational interview of Mr. Boggs; - J une 8 , 20 16, com pleted the vocational interview; - J une 10 , 20 16, conducted Mr. Boggs’ IME; - J une 14, 20 16, deposed plaintiffs; - J une 27, 20 16, deposed an adm inistrator from Mr. Boggs’ place of em ploym ent; and - J une 27, 20 16, provided notice that a m otion to com pel would be presented to the Beaver County Court on J une 30 , 20 16. (ECF No. 5 ¶ 12.) On J uly 19, 20 16, plaintiffs filed a m otion to rem and this m atter to state court and a brief in support of the m otion. (ECF Nos. 5, 6.) On August 9, 20 16, the rem oving defendants filed a response in opposition to the m otion for rem and and a brief in support of the response. (ECF Nos. 10 , 11.) 3 A hearing on plaintiffs’ m otion for rem and was held before this court on Septem ber 20 , 20 16. (Minute Entry 9/ 20 / 20 16.) At that tim e the court, upon joint request from the parties, perm itted both parties to subm it supplem ental briefing on the narrow question whether a voluntary discontinuance of a defendant via stipulation is analogous to a settlem ent agreem ent for the purpose of determ inin g when the thirty-day rem oval period provided under 28 U.S.C. § 1446(b) com m enced. (Id.) The m otion is now fully briefed and ripe for disposition. III. Sta te m e n t o f Facts Plaintiff Roy Boggs asserts a negligence claim against Harris an d Getaway Tours. Plaintiff Annette Boggs asserts a loss of consortium claim against Harris and Getaway Tours. Plaintiffs allege in the com plaint that: − on Decem ber 26, 20 13, Mr. Boggs was operating his vehicle on State Route 18 (ECF No. 1 ¶ 11); − at approxim ately 10 :39 p.m ., Harris, who was operating a bus owned by Getaway Tours, exited a com m ercial plaza owned by Conley-Beaver (id. ¶ 1112); − Darwin Harris negligently crossed over the south bound lane of Route 18 directly into Mr. Boggs’ path, resulting in a collision (id. ¶ 12); and − Mr. Boggs suffered num erous and severe in juries as a result of the collision (id.). IV. D is cu s s io n 28 U.S.C. § 1441(a) authorizes a defendant to rem ove to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” The district courts have original jurisdiction over diversity actions 4 “where the m atter in controversy exceeds the sum or value of $ 75,0 0 0 , exclusive of interest and costs, and is between citizens of different States.” 28 U.S.C. § 1332(a). 2 A defen dant seeking rem oval of an action m ust file a petition for rem oval with the district court within thirty days of the plaintiff’s service of the com plaint upon the defendant or within thirty days of receipt of a copy of an am ended pleading, m otion, order, or other paper from which the defendant m ay first ascertain that the case has becom e rem ovable. 28 U.S.C. § 1446(b). “[T]he burden of establishing rem oval jurisdiction rests with the defendant.” Dukes v. U.S. Healthcare, Inc., 57 F.3d 350 , 359 (3d Cir. 1995). It is the burden of the party seeking to preserve the district court’s jurisdiction, typically the defendant, to show that the requirem ents for rem oval have been m et. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214 (3d Cir. 1999); Bell Atlantic Mobile, Inc. v. Zoning Bd. of Butler Tp., 138 F.Supp.2d 668 (W.D. Pa. 20 0 1) (noting that defendant bears the burden of proving that rem oval was proper). “Once an action is rem oved, a plaintiff m ay challenge rem oval by m oving to rem and the case back to state court.” McGuire v. Safeware, Inc., Civ. Action No. 133746, 20 13 WL 5272767, at * 1 (E.D. Pa. Sept. 17, 20 13) (citing Cook v. Soft Sheen Carson, Inc., Civ. Action No. 0 8 -1542, 20 0 8 WL 460 630 5, at*1 (D.N.J . Oct. 15, 20 0 8)). “Cases m ay be rem anded under § 1447(c) for (1) lack of district court subject m atter jurisdiction or (2) a defect in the rem oval procedure.” PAS v. Travelers Ins. Co.,7 F.3d 349, 352 (3d Cir. 1993). 3 “It is settled that the rem oval statutes are to be strictly 2 The parties do not contest that there is com plete diversity between the rem ainin g parties and that the am ount in controversy is in excess of $ 75,0 0 0 . 3 The decision to enter a rem and order on the basis of a defect in rem oval procedure or for a lack of subject m atter jurisdiction is within the discretion of the district court, and, whether erron eous or not, is not subject to appeal. Cook, 320 F.3d at 437 (citing 5 construed against rem oval and all doubts should be resolved in favor of rem and.” Steel Valley Auth. v. Union Switch and Signal Div., 8 0 9 F.2d 10 0 6, 10 10 (3d Cir.198 7) (footnote om itted). Here, plaintiffs m ake two argum ents in favor of rem and: 1) rem oving defendants’ rem oval w as untim ely , because it did not com ply w ith 28 U.S.C. § 1446(b); and 2) rem oving defendants w aived the right to rem ove, because they in voked the jurisdiction of the state court and dem onstrated a “clear and unequivocal” intent to litigate in state court. Plaintiffs’ first argum ent raises a difficult legal question given the existence of conflicting case law with respect to when the thirty-day rem oval period begins under 28 U.S.C. § 1446(b). If this court were to determ ine that rem oving defendants waived the right to rem oval, this court would be able to resolve this m atter without addressing the question whether rem oving defendants’ notice of rem oval was tim ely filed. This court will, therefore, first address plaintiffs’ second argum ent regarding defendants’ alleged waiver. A. D e fe n d an ts ’ w aive r o f th e righ t to re m o ve Plaintiffs argue that rem oving defendants waived their right to rem ove by dem onstrating the intent to litigate in state court. In litigation, a defendant’s waiver of rem oval rights m ust be “clear and unequivocal.” Foster v. Chesapeake Ins. Co., Ltd., 933 Quacken bush, 517 U.S. at 711-12). The United States Suprem e Court has noted that lim iting review of rem an d orders supports “Congress's longstandin g policy of not perm ittin g interruption of the litigation of the m erits of a rem oved case.” Powerex Corp. v. Reliant Energy Svcs., Inc., 551 U.S. 224, 238 (20 0 7). A.R. v. Norris, Civ. Action No. 15-1780 , 20 15 WL 6951872, at *2 (M.D. Pa. Nov. 10 , 20 15). 6 F.2d 120 7, 1218 n.15 (3d Cir. 1991). (“In the context of litigation-based waiver, the ‘clear and unequivocal’ standard m akes sense. Otherwise, in order not to waive the right to rem ove defen dants would have to rem ain inactive in the state court, running the peril of being held in default should a rem and from the district court later occur.”). 4 The Third Circuit Court of Appeals has not specifically addressed what constitutes a “clear and unequivocal” waiver of the right to rem ove; however, courts typically find that a defendant has waived his right to rem ove a case under one of two scenarios. First, a defendant waives his right to rem ove when he “attem pts to experim ent with the m erits of his case in state court and then use rem oval to get a second chance or ‘alternative appeal’ route in federal court.” Haun v. Retail Credit Co., 420 F. Supp. 8 59, 8 63 (W.D. Pa. 1976) (citing Rosenthal v. Coates, 148 U.S. 142, 147 (18 93); see Sacko v. Greyhound Lines, Inc., Civ. Action No. 13-1966, 20 13 WL 289290 6 at *2-3 (E.D. Pa. May 31, 20 13) (“[W]aiver m ay be found where a defendant experim ents with the m erits of the case in state court and then seeks to rem ove the case to federal court, often after receiving an adverse decision.”). Alternatively, a court m ay find that a defen dant has waived his right to rem ove a case to federal court where the defendant takes an affirm ative action evincing an intent to rem ain in state court. Mancari, 683 F. Supp. at 94 (“In alm ost all of the cases where waiver has been found, the courts have concluded that the defendant m anifested an intention to rem ain in state court by either asserting its rights in the court or by som e other affirm ative action taken in the state forum .”); Rockwell v. U. S. Fid. & Guar. Co., 4 “The court of appeals in Foster rejected the argum ent that contractual waivers of § 1441(a) rem oval rights m ust be ‘clear and un equivocal.’” Suter v. Mun ich Reinsurance Co., 223 F.3d 150 , 156 (3d Cir. 20 0 0 ). Here, plaintiffs do n ot argue that rem oving defendants waived their rem oval rights based upon a contractual waiver. 7 137 F. Supp. 317, 319 (M.D. Pa. 1955) (“The action relied upon [as a waiver] m ust be inconsistent with a purpose to pursue the right to rem ove and clearly indicate an intention to subm it to the jurisdiction of the state court.”). “The right to rem ove m ay also be waived if a defendant takes substantial defensive action in state court before petitioning for rem oval.” Bryfogle v. Carvel Corp., 666 F. Supp. 730 , 733 (E.D. Pa. 1987). Under this second scenario, a court will exam ine the actions taken by the defendant in state court to determ ine whether they are substantial and dem onstrate an intent to litigate in state court. “The m ajority of courts seem to have held that prelim inary conduct by a defendant short of his actual litigation of the m erits or his voluntary invocation of state court jurisdiction for his own purposes does not constitute a waiver of his right to rem ove.” Haun, 420 F. Supp. at 863; Selvaggi v. Prudential Prop. & Cas. Ins. Co., 8 71 F. Supp. 8 15, 8 18 (E.D. Pa. 1995) (“courts generally have held that the right to rem ove is m aintain ed where there has been no litigation on the m erits an d no prejudice to any of the parties”). District courts within the Third Circuit have found that m ost actions taken by a defendant prior to rem oval do not constitute a “clear and unequivocal” waiver of the right to rem ove. “District courts in our Circuit have found that waiver has not been established when defendants attend and participate in a scheduling conference, file prelim inary objections, file a praecipe to file a com plaint and a praecipe for judgm ent of non pros, and file an answer.” Cognetx, Inc. v. Haughton, No. 10 -2293, 20 10 WL 3370 761, at *6 (E.D. Pa. Aug. 26, 20 10 ). District courts have found that conducting discovery does not autom atically constitute a waiver, particularly when the parties are in the early stages of discovery. Id.; Cook v. Soft Sheen Carson, Inc., Civ. Action No. 0 8 - 8 1542, 20 0 8 WL 460 630 5, at *4 (D.N.J . Oct. 15, 20 0 8); 14C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3731 (4th ed. 20 0 9) (“A defendant’s conduct in defending the state court action prior to the end of the two statutory thirtyday periods established by Section 1446(b) will not constitute a waiver of the right to rem ove.”). Courts also closely consider the tim ing of the defendant’s conduct. “It is clear that the stage the case is in should be and is crucial when analyzing whether there has been a waiver of the right to rem ove. For exam ple, filing a pleading in the early stages of litigation m ay not be as clear and unequivocable an act as continuin g to present eviden ce in a trial.” Mancari, 683 F. Supp. at 94– 95; Selvaggi, 8 71 F. Supp. at 8 17 (“pleadings that are filed early in the proceedings are rarely construed as clear waivers of the right to rem ove.”). Other circuit courts of appeals have gone so far as to hold that the right to rem ove cannot be waived prior to the right existing. Akin v. Ashland Chem ical Co., 156 F.3d 10 30 , 10 36 (10 th Cir. 1998) (where the “actions in state court by defendant . . . were taken before it was unequivocally apparent that the case was rem ovable,” they do not constitute waiver of the right to rem ove); McKnight v. Illinois Cent. R.R., 967 F.Supp. 18 2, 18 6 (E.D. La. 1997) (“[t]he right to rem ove a case to federal court m ay be waived by acts taken in the state court, subsequent to the creation of the right to rem ove.”); Fain v. Biltm ore Securities, Inc., 166 F.R.D. 39, 40 (M.D. Ala. 1996) (sam e). Finally, courts have refused to find a waiver when the defendant’s participation in the state action was dictated by the rules of the state court or where the defendant’s failure to act would prejudice him in the state proceedings. Haun, 420 F.Supp. at 859 9 (finding that a defendant’s actions could not be construed as a waiver of the right to rem ove where the defendant took these actions to protect him self from default in state court). Plaintiffs in this case argue that rem oving defendants waived their right to rem ove by dem onstrating a “clear and unequivocal” intent to litigate in state court. Plaintiffs cite four actions, which they allege dem onstrate this inten t: 1) rem oving defendants, Harris and Getaw ay Tours, filed a cross-claim against the nondiverse defendant, Conley -Beaver, at the beginning of the state action; 2) rem oving defendants engaged in discovery after the case becam e rem ovable; 3) rem oving defendants engaged in alternative dispute resolution (ADR), including proposals to participate in a high/ low non-jury trial in Beaver County state court, after the case becam e rem ovable; and 4) rem oving defendants continue to participate in a related state court action against them involving property dam age claim s. Plaintiffs also argue that this case should be rem anded on the ground that rem oving the m atter to federal court will invite significant delay and expense. 1. Re m o vin g d e fe n d an ts ’ cro s s -cla im Plaintiffs argue that rem oving defendants waived their right to rem ove when they filed a cross-claim against co-defendant Conley-Beaver. Rem oving defendants respon d that such cross-claim s are routinely filed to preserve defenses and claim s, and that the instant cross-claim should not be perceived as evidence that they clearly and unequivocally intended to waive their right to rem ove. 10 As established in Haun, a defendant can waive his right to rem ove through “voluntary invocation of state court jurisdiction for his own purposes.” Haun, 420 F. Supp. at 8 63. Here, the question is whether filing a cross-claim is a voluntary invocation of state court jurisdiction. The Third Circuit Court of Appeals has not spoken on this m atter, an d other circuits are split about whether a voluntary cross-claim dem onstrates a “clear an d unequivocal” intent to litigate in state court. Plaintiffs cite Sood v. Advanced Com puter Techniques, 30 8 F. Supp. 239, 241 (E.D. Va. 1969), to support their contention that a defendant waives his right to rem ove when he files a voluntary cross-claim in state court. In Sood, the district court held that “the defendant, by filing its plea in abatem ent and its cross-action in the State Court, waived its right to rem ove the case to this Court” as the defendant “voluntarily invoke[d] the jurisdiction of the state court by seeking its affirm ative aid in his behalf.” Sood, 30 8 F. Supp. at 241; see Acosta v. Direct Merchants Bank, 20 7 F. Supp. 2d 1129, 1133 (S.D. Cal. 20 0 2) (the defendant affirm atively waived rem oval rights by filin g a voluntary cross-claim ); Paris v. Affleck, 431 F. Supp. 8 78, 8 80 (M.D. Fla. 1977) (sam e); Briggs v. Miam i Window Corp., 158 F. Supp. 229, 230 (M.D. Ga. 1956) (sam e). While plaintiffs would like the court to broadly adopt the reasoning of the district court in Sood to find that a cross-claim “voluntarily invokes the jurisdiction of the state court,” Sood, 30 8 F. Supp. at 241, this court is hesitant to find that all perm issive crossclaim s constitute waivers of the right to rem ove. Sood lays out a rigid requirem ent, which forces a defendant to speculate about the likelihood a nonrem ovable case will later becom e rem ovable when m aking prelim inary procedural decisions. Adopting this 11 approach would place defendants in precarious positions; they would have to weigh the value of asserting potentially viable claim s against the possibility that the case m ay becom e rem ovable at som e point in the future. This court is not inclined to require defendants to engage in this sort of conjecture, particularly at the outset of litigation, and con cludes that the fact-based approach laid out by the Seventh Circuit Court of Appeals in Rothner v. City of Chicago, 879 F.2d 140 2, 1414– 1416 (7th Cir. 198 9), and later adopted by the Fourth Circuit Court of Appeals in Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir. 1991), is m ore persuasive on this m atter. In Rothner, the Seventh Circuit Court of Appeals exam ined the role of the waiver doctrine following the adoption of 28 U.S.C. § 1446(b). The court found that as a general m atter the 1948 revisions to the statutory schem e, which included the adoption of § 1446(b), “seem ed to obviate the need of courts to resort to judicial rules concerning waiver.” Rothner v, 8 79 F.2d at 1414. Rothner, however, recognized that the waiver doctrine is “entrenched in the lower courts,” and that district courts do retain the “power to rem and in extrem e situations.” Id. at 1416. Under the approach set out in Rothner, “a waiver determ ination involves a factual and objective inquiry as to the defendant's intent to waive” and should only be found in rare and extrem e circum stances. Id. at 140 8 . The Fourth Circuit Court of Appeals likewise adopted this approach, stating: We are persuaded by this reasoning, and adopt Rothner 's holding that although a defendant m ay yet waive its thirty-day right to rem oval by demonstrating a “clear and unequivocal” intent to rem ain in state court, such a waiver should only be found in “extrem e situations.” 5 5 While the Third Circuit Court of Appeals has not explicitly adopted this approach, the court of appeals did cite Grubb when determ ining that a defendant who had asserted claim s for in dem nification and 12 Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (4th Cir. 1991). Extrem e situations befitting waiver m ay in clude a case that has already been fully litigated on the m erits in state court, Rothner, 879 F.2d at 1416; a case in which the defendant takes “substantial affirm ative steps in the state court after the [nondiverse defen dants are] dism issed,” Grubb, 935 F.2d at 59; or a case where the defendant rem oves only after “test[ing] the waters in state court.” Sm all v. Ram sey, Civ. Action No. 1:10 -121, 20 10 WL 43940 84, at *4 (N.D.W. Va. Nov. 1, 20 10 ). Here, rem oving defen dants’ decision to file a perm issive cross-claim against Conley-Beaver does not rise to the “extrem e” level described in Rothner and Grubb. Rem oving defendants’ decision to file a cross-claim was a defensive strategy. Antol v. Esposto, 10 0 F.3d 1111, 1115 n.1 (3d Cir. 1996), am ended, (3d Cir. J an. 20 , 1997) (“[Defendant’s] pleading appears to be defen sive in n ature and we do not consider it to be such a substantial affirm ative step as to bar rem oval.”). Rem oving defendants’ crossclaim was also filed early in the litigation, well before any party had reason to suspect that the case m ay becom e rem ovable. Selvaggi, 8 71 F. Supp. at 8 17 (“pleadings that are filed early in the proceedings are rarely construed as clear waivers of the right to rem ove.”). Rem oving defendants’ cross-claim does not rise to the level of an “extrem e situation” as required under Rothner. As a result, the filing of a cross-claim by rem oving defendants does not constitute a bar to rem oval. contribution did not take “substantial affirm ative steps” that would constitute a bar to rem oval. Antol v. Esposto, 10 0 F.3d 1111, 1115 n.1 (3d Cir. 1996), am ended, (3d Cir. J an. 20 , 1997). 13 2. Re m o vin g d e fe n d an ts ’ d is co ve ry activitie s Plaintiffs argue that rem oving defendants conducted extensive discovery, and in particular, that rem oving defendants contin ued to engage in discovery after the case becam e rem ovable. The discovery activities cited by plaintiffs include scheduling, conducting interviews, and deposing parties. Plaintiffs contend that by engaging in these activities after the case becam e rem ovable rem oving defendants m anifested an intent to rem ain in state court, thus, waiving their right to rem ove. Rem oving defendants argue that they were required to engage in discovery in order to defend them selves in the state court action, an d that if they had ceased all discovery activities upon ascertaining that the case had becom e rem ovable they would have been in violation of the state court’s orders an d rules of procedure. District courts within the Third Circuit have explicitly held that a defendant’s discovery activities do not necessarily evin ce a “clear and unequivocal” intent to waive the right to rem ove. Cook, WL 460 630 5, at *4 (“conducting discovery will not autom atically bar the rem oval of an action.”); Cognetx, Inc., 20 10 WL 3370 761, at *6 (finding that defendants who had only recently begun discovery had not displayed a “clear an d unequivocal” intent to waive the right to rem ove). Here, rem oving defen dants engaged in lim ited discovery after the case becam e rem ovable on May 23, 20 16, and no discovery after they filed the notice of rem oval. The discovery conducted after May 23, 20 16, was done in accordance with a case m anagem ent order entered by the state court, setting a discovery deadline of J une 30 , 20 16, for rem oving defendants. 14 In Foster v. Chesapeake Insurance Co., Ltd. the Third Circuit Court of Appeals adopted the “clear and unequivocal” test to avoid the very concern rem oving defendants raise. Foster, 933 F.2d at 1218 n.15 (“In the context of litigation-based waiver, the ‘clear and unequivocal’ standard m akes sen se. Otherwise, in order not to waive the right to rem ove defen dants would have to rem ain inactive in the state court, running the peril of being held in default should a rem and from the district court later occur.”). In Haun, the court determ ined that a defendant who wishes to adequately protect him self in state court, m ay have to engage in state court activities at the sam e tim e that he files a rem oval petition, and that for a court to consider this state court activity “as a waiver of rem oval would create hardships for the defendant.” Haun, 420 F. Supp. at 863. Given the court’s decision in Haun and the im pending discovery deadlin e set by the state court, Harris’s and Getaway Tours’ contention that they would have been unduly harm ed had they discontinued all discovery activities is particularly persuasive. Because rem oving defendants appear to have engaged in only a lim ited am ount of discovery, as was necessary to protect their defenses in state court, their discovery activities do not constitute a “clear and unequivocal” waiver of their right to rem ove. 3. Re m o vin g d e fe n d an ts ’ AD R activitie s Plaintiffs contend that rem oving defendants evinced a “clear and unequivocal” intent to litigate in state court by continuing to engage in ADR activities, specifically discussions regarding a “bin ding high/ low nonjury trial,” after the case becam e rem ovable. 15 While it does not appear that courts within the Third Circuit have specifically addressed whether engaging in ADR or settlem ent negotiations dem onstrates a “clear and unequivocal” intent to litigate in state court, it is unlikely that those activities rise to this level. Engaging in ADR or settlem ent discussions seem s m ore akin to a prelim inary action, like filing an answer, engaging in discovery, or scheduling a conference, see Cognetx, Inc., 20 10 WL 3370 761, at *6, than to litigating a case on its m erits. Haun, 420 F. Supp. at 863. In engaging in discussions regarding a “binding high/ low nonjury trial,” rem oving defendants in this case do not seem to have taken a “substantial defensive action in state court.” Bryfogle, 666 F. Supp. at 733. Rem oving defendants also m ake a persuasive argum ent that were the court to find that a defendant who engages in ADR or settlem ent discussions waived his right to rem ove, this decision would discourage defendants from engaging in those activities. This result would clearly go against public policy favoring settlem ent. The participation of rem oving defendants in discussions about a “binding high/ low nonjury trial” does not constitute a “clear and unequivocal” waiver of their right to rem ove. 4. Re m o vin g d e fe n d an ts ’ re late d s tate claim s Plaintiffs argue that rem and is appropriate here, because there is a related action pending before the state court. The related action involves property dam age claim s with respect to the vehicles involved in the acciden t. The property dam age claim s were initially brought by plaintiffs. The rem oving defendants, Harris and Getaway Tours, filed a counterclaim in that action. (ECF No. 5 ¶34). Plaintiffs contend that the personal 16 injury claim s and the property dam age claim s are essentially part of the sam e state court action, an d the personal injury action should be rem anded due to the difficulties and inefficien cies of litigating what is, in essen ce, one action in two forum s. Plaintiffs point to Bryfogle to support their contention that a federal action should be rem anded when it is in essence part of a state court action. This argum ent is an overly broad interpretation of Bryfogle, which focused not on whether the actions in question were related, but whether the federal claim was ancillary to the state claim . Bryfogle v. Carvel Corp., 666 F. Supp. 730 , 732 (E.D. Pa. 1987); see Connecticut Bank of Com m erce v. Republic of Congo, 440 F. Supp. 2d 346, 350 (D. Del. 20 0 6) (quoting Richm on d v. Allstate Ins. Co., 624 F.Supp. 235, 236 (E.D.Pa.1985)) (“‘A suit which is m erely an cillary or supplem ental to another action cannot be rem oved from state to federal court.’”). The pertinent question here is whether the claim currently before the state court for property dam ages is ancillary to the personal injury claim . In International Organization Masters, the district court opined that there are “no useful working definitions of ‘ancillary.’” Int'l Org. Masters, Mates & Pilots of Am ., Local No. 2 v. Int'l Org. Masters, Mates & Pilots of Am ., Inc. 342 F. Supp. 212, 214 (E.D. Pa. 1972). The Third Circuit Court of Appeals has not addressed this m atter, and district courts within this circuit vary with respect to the analysis they use for determ ining if a m atter is ancillary. Connecticut Bank of Com m erce v. The Republic of Congo, 440 F.Supp.2d 346 (D.Del.20 0 6) (providing a survey of Third Circuit district court decisions that address whether a m atter is ancillary). 17 That being said, International Organization Masters, which both plaintiffs and rem oving defen dants cited in their briefs, provides helpful guidance on this question. According to International Organization Masters, for a case to be rem ovable “[i]t m ust be ‘practically severable,’ so as not to do ‘practical violence.’ . . . The m ere fact that a controversy had its origin in a state action does not require rem and; the issue is whether it is a ‘separate suit.’” Int'l Org. Masters, Mates & Pilots of Am ., Local No. 2, 342 F. Supp. at 214. The question of “practical violence” “relates to the state court's power to fashion a rem edy for the wrong com m itted against the plaintiffs.” Id. at 215. Here, it does not appear that separating the cases involving personal injury and property dam age claim s will cause the sort of “practical violence” envisioned by International Organization Masters. The state court will retain the power to fashion a rem edy to address the property dam age claim s even if the personal injury case is rem oved to federal court. In fact, this m atter is substantively distinct from m ost of the cases in which the court exam ined whether a claim is ancillary, as the m ajority of those cases involved garnishm ent actions. See Id.; Connecticut Bank, 440 F. Supp. 2d at 352; Scanlin v. Utica First Ins. Co., 426 F. Supp. 2d 243, 245 (M.D. Pa. 20 0 6); Haines by Midlantic Bank, N.A. v. Donn's, Inc., No. CIV. A. 95-10 25, 1995 WL 262534, at *1 (E.D. Pa. Apr. 27, 1995); Lexington Ins. Co. v. Trustees of Univ. of Pa., Civ. Court No. A 851125, 198 7 WL 160 41, at *1 (E.D. Pa. Aug. 21, 1987); Richm ond v. Allstate Ins. Co., 624 F. Supp. 235 (E.D. Pa. 1985), writ denied, 80 0 F.2d 1130 (3d Cir. 1986). The person al injury claim s and the property dam age claim s arising from the accident on Decem ber 26, 20 13, are currently being addressed as separate suits, and plaintiffs provided no eviden ce to support their contention that the state court will 18 consolidate these actions sua sponte if this court rem ands. Given that these claim s are currently proceeding as independent actions, it does not appear that rem oving the personal injury claim s to federal court would cause practical violence or “‘gratuitous[ly] interfere[ ] with the orderly and com prehensive disposition of a state court litigation.’” Lexington, 1987 WL 160 41, at *1 (quoting Brillhart v. Excess Ins. Co., 316 U.S. 491, 495 (1942)). The court will not rem and this case based upon plaintiffs’ argum ent that the personal injury claim is related or ancillary to the property dam ages claim currently pending in state court. 5. D e lay an d e xp e n s e Plaintiffs argue that this case should be rem anded because the parties have already com m itted significant tim e and expense to the state court litigation. Plaintiffs also anticipate that this case will be set for trial m ore quickly at the state court level. Although the Court is m indful of the[] critical principles [of judicial econom y and cooperative federalism ], the executive and legislative branches have enacted statutes articulating the standards to be used in determ ining whether a defendant m ay rem ove a particular case to federal court. In particular, 28 U.S.C. §§ 1441, 1446-47 describe the procedures by which a defendant m ay rem ove a case to federal court. [Where defendant] complie[s] with the statutory requirem ents for rem oval, [] this Court will not rem and the case on the basis of principles of judicial econom y and cooperative federalism. Cook, 20 0 8 WL 460 630 5, at *3; see J im Arnold Corp. v. Hydrotech Sys., Inc., 10 9 F.3d 1567, 1572 (Fed.Cir.1997) (“[C]onsiderations of judicial econom y cannot trum p a clear rule of law, particularly one that goes to the very power of the court to decide the case.”). 28 U.S.C. § 1446(b) lays out clear requirem ents with respect to the right to rem ove this case. The court will not place judicial econom y and fear of delay above these requirem ents. 19 6. Su m m ary For the reasons set forth above, rem oving defendants did not waive their right to rem ove. Because this court could not conclude that rem oving defendants waived their right to rem ove, the court will address the question whether rem oving defendants’ notice of rem oval was tim ely filed under 28 U.S.C. § 1446(b). B. Tim e lin e s s o f re m o vin g d e fe n d an ts ’ n o tice o f re m o val Plaintiffs argue that this case is not rem ovable because rem oving defendants did not file the notice of rem oval within the required thirty-day tim e lim it. The tim e lim itation for rem oval in a case where the initial pleading is not rem ovable is controlled by 28 U.S.C. § 1446(b), which provides: If the case stated by the in itial pleading is not rem ovable, a notice of rem oval m ay be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an am ended pleading, m otion, order, or o t h e r p a p e r from which it m ay first be ascertained that the case is one which is or has becom e rem ovable, except that a case m ay not be rem oved on the basis of jurisdiction conferred by section 1332 of this title m ore than 1 year after com m encem ent of the action. 28 U.S.C. § 1446(b) (em phasis added). 6 The thirty-day tim e lim it is m andatory. Carlyle Inv. Mgm t. v. Moonm outh Co. SA, 779 F.3d 214, 218 (3d Cir. 20 15); Groh v. Groh, 88 9 F.Supp. 166, 171 (D.N.J . 1995); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp 528, 529 (E.D. Pa. 1982). The goal of the tim e-lim it provision is to resolve early in which court system the case will be heard. 14C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3731 (4th ed. 20 16). 6 Because plaintiffs raised n o federal question in the com plaint and the originally nam ed defendant Conley-Beaver was a nondiverse party, the action was not initially rem ovable. Therefore, the second paragraph of § 1446(b) governs. 20 Here, plaintiffs and rem oving defendants agree that em ail correspondence sent on May 18 , 20 16, and May 23, 20 16, stated Conley-Beaver was to be dism issed as a defendant; the parties disagree, however, about whether this correspondence triggered the thirty-day rem oval period provided under 28 U.S.C. § 1446(b). The court’s inquiry into this m atter is twofold. The court m ust first decide whether the attorney correspondence on May 18, 20 16, and May 23, 20 16, can be considered “other paper,” under 28 U.S.C. § 1446(b). If the court determ ines that 28 U.S.C. § 1446(b) includes this attorney correspondence, the court m ust determ ine whether rem oving defendants m ay have ascertained from this correspondence that the case had becom e rem ovable. See Rose v. USAA Cas. Ins. Co., Civ. Action No. 0 9-60 0 5, 20 10 WL 2557484, at *3– 4 (D.N.J . J une 23, 20 10 ); Polk v. Sentry Ins., 129 F. Supp. 2d 975, 978 (S.D. Miss. 20 0 0 ). Although the Third Circuit Court of Appeals has not specifically defined “other paper,” “district courts in the Third Circuit have given the term an ‘em bracive construction’ to include a wide array of docum ents, including letter com m unications between counsel, deposition testim ony, stipulations between the parties, answers to interrogatories, an d transcripts.” Costa v. Verizon New J ersey, Inc., 936 F. Supp. 2d 455, 465– 66 (D.N.J . 20 13); see 14C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3731 (4th ed. 20 16). (“The federal courts have given the referen ce to ‘other paper’ an expansive construction an d have included a wide array of docum ents within its scope.”). Several district courts within the Third Circuit have specifically held that written correspondence between counsel can constitute “other paper” under 28 U.S.C. 21 § 1446(b). Rose, 20 10 WL 255748 4, at *4 (finding that a stipulation substituting a defendant, signed and m ailed by the plaintiffs’ attorney, constituted an “other paper” within the m eaning of § 1446(b)); Efford v. Milam , 368 F.Supp.2d 380 , 385 (E.D.Pa.20 0 5) (concluding that correspondence from the plaintiffs’ counsel fell within the purview of “other paper.”); Rahwar v. Nootz, 8 63 F. Supp. 191, 192 (D.N.J . 1994) (“plaintiff's statem ent of dam ages letter is an ‘other paper’ within the m eaning of 28 U.S.C. § 1446(b).”); Broderick v. Dellasandro, 859 F.Supp. 176, 179 (E.D.Pa.1994) (finding that a letter from the plaintiffs’ counsel indicating that the plaintiffs had changed residency provided the defendant with notice that the case had becom e rem ovable); Hessler v. Arm strong World Indus., Inc., 684 F. Supp. 393, 395 (D. Del. 198 8) (finding that letters an d statem ents m ade by the plaintiffs’ attorney, which provided adequate notice that the plaintiff had settled with the nondiverse defendant, triggered the thirty-day rem oval period). It is clear that attorney correspondence can be considered “other paper” for the purpose of 28 U.S.C. § 1446(b). Having concluded that the em ail correspondence between counsel can constitute “other paper,” the court m ust exam ine the substance of this correspondence in order to determ ine when rem oving defendants m ay have first ascertained that the case had becom e rem ovable. In discussing “other papers,” courts within this circuit “have held that such docum ents trigger [28 U.S.C. § 1446(b)’s] thirty-day rem oval period only when they are the result of ‘a voluntary act of the plaintiff which effects a change ren dering a case subject to rem oval (by defendant) which had not been rem ovable before the change.’” Efford, 368 F. Supp. 2d at 385 (citing DeBry v. Transam erica Corp., 60 1 F.2d 22 48 0 , 48 7 (10 th Cir.1979)); see Costa, 936 F. Supp. 2d at 466; Rose, 20 10 WL 2557484, at *4. “In addition, these courts have read [28 U.S.C. § 1446(b)’s] use of the word ‘ascertain’ to m ean that the thirty-day rem oval period is triggered only when these docum ents m ake it ‘unequivocally clear an d certain’ that federal jurisdiction lies.” Efford, 368 F. Supp. 2d at 385 (citing Bosky v. Kroger Tex., L.P., 288 F.3d 20 8, 212 (5th Cir.20 0 2)); In re Diet Drugs (Phenterm ine, Fenfluram ine, Dexfenfluram ine) Prods. Liab. Litig., Civ. Action No. 98-20 560 , 1999 WL 10 6887, at *2 (E.D. Pa. Mar. 2, 1999) (“courts have held that an action was properly rem oved to a federal court where the plaintiff clearly expressed an intent to voluntarily abandon claim s against nondiverse defendants.”); Polk, 129 F. Supp. 2d at 979– 80 (citing Pullm an Co. v. J enkins, 30 5 U.S. 534 (1939), for the proposition that “notice m ust clearly and definitively eviden ce the plaintiff's desire voluntarily to dism iss any nondiverse defendants.”). For attorney correspondence to trigger the thirty-day rem oval period, the correspondence m ust show that the plaintiff engaged in a voluntary act which rendered the case subject to rem oval, and that the act was “unequivocally clear and certain” from the correspondence. If plaintiffs engaged in such an act, the tim e at which that act becam e clear to rem oving defendants will “trigger” the thirty-day rem oval period under 28 U.S.C. § 1446(b). Here, the act in question is the discontinuance by plaintiffs of defendant ConleyBeaver. “[C]ourts have held that an action was properly rem oved to a federal court where the plaintiff clearly expressed an intent to voluntarily abandon claim s against nondiverse defendants.” In re Diet Drugs, 1999 WL 10 6887, at *2; see Rose, 20 10 WL 23 2557484, at *4 (finding that the plaintiffs’ stipulation substituting a nondiverse defendant for a diverse defendant constituted a voluntary abandonm ent of claim s against the rem oving defendant); Eyal Lior v. Sit, 913 F. Supp. 8 68, 878 (D.N.J . 1996) (finding that the plaintiffs’ stipulation rem oving the nondiverse defendant triggered the thirty-day rem oval period under 28 U.S.C. §1446 (b)); Hessler, 684 F. Supp. at 395 (holding that the plain tiff's act of entering into a settlem ent agreem ent with the nondiverse defen dant constituted the voluntary abandonm ent of claim s against the nondiverse defen dant); Lesher v. Andreozzi, 647 F.Supp. 920 , 921– 22 (M.D.Pa.1986) (sam e). Here, the discontinuance by plaintiffs of defendant Conley-Beaver was a voluntary act indicating plaintiffs’ intent to abandon claim s against the only nondiverse defendant. This discontinuance rendered the case subject to rem oval. Given that the discontinuance created diversity jurisdiction and m ade this m atter rem ovable, the court m ust determ ine when plaintiffs’ voluntary act of dism issing Conley-Beaver becam e “unequivocally clear and certain” to rem ovin g defendants, such that rem oving defendants could first ascertain that the case had becom e rem ovable. There are four different papers identified by the parties that could have first indicated to rem oving defen dants that the case was rem ovable. These are: 1. the two em ails sent by counsel for rem oving defendants and counsel for defendant Conley-Beaver on May 18, 20 16, which confirm that all defendants consented to the discontinuance of Conley-Beaver (ECF No. 520 ); 2. the letter sent by counsel for plaintiffs on May 23, 20 16, which contained the unsigned stipulation for discontinuance with respect to defendant Conley-Beaver (ECF. No. 5-21); 3. correspondence sent by counsel for Conley-Beaver an d counsel for plaintiffs on May 31, 20 16, which contained signed counterparts of the 24 stipulation for discontinuance with respect to defendant Conley-Beaver (ECF. No. 5-22); and 4. a letter sent by counsel for plaintiffs on J une 15, 20 16, which confirm ed that the stipulation for discontinuance was filed with the Court of Com m on Pleas of Beaver County on J une 15, 20 16 and included a copy of that filing. Plaintiffs point to the May 18 th em ail exchange as evidence that rem oving defendants were m ade aware that the only nondiverse party was being dism issed on that date an d that, consequently, the May 18th correspondence triggered the thirty-day rem oval period under 28 U.S.C. § 1446(b). Plaintiffs argue that rem oving defendants had until J une 17, 20 16, to file their notice of rem oval, and that the notice of rem oval filed on J une 28, 20 16, was untim ely. In the alternative, plaintiffs argue that the May 23 rd letter confirm ed in writing that there were no rem aining nondiverse defendants in this action. Plaintiffs’ counsel sent this letter to all defendants an d included in it an unsigned stipulation for discontinuance with respect to defendant Conley-Beaver. Based upon this com m unication, counsel for plaintiffs argues that the thirty-day rem oval period began on May 23, 20 16, rem oving defendants had until J une 22, 20 16, to file their notice of rem oval, and rem oving defendants’ notice of rem oval, filed on J une 28, 20 16, was untim ely. Conversely, rem oving defendants argue that the rem oval period did not begin until J une 15, 20 16, when the stipulation for discontinuance was filed with the court and Conley-Beaver was form ally dism issed as a defendant, or in the alternative, on May 31, 20 16, when all parties signed the stipulation for discontinuance. Counsel for Harris and Getaway Tours argue that because the rem oval period was not triggered until either 25 J une 15, 20 16 or May 31, 20 16, their notice of rem oval, filed on J une 28, 20 16, was filed within the thirty-day rem oval period. 1. May 18 , 2 0 16 e m ails For the May 18, 20 16 em ail exchange between defendant Conley-Beaver and rem oving defen dants Harris and Getaway Tours to serve as the triggering event for the thirty-day rem oval period, it m ust have been “unequivocally clear and certain” from this correspondence that the case had becom e rem ovable. The May 18, 20 16 em ail exchange discusses the discontinuance of Conley-Beaver. The em ail exchange in cludes two em ails – an initial em ail sent from Tim othy Montgom ery, counsel for Harris and Getaway Tours, and a response em ail sent from William Mansour, counsel for Conley-Beaver. While, Laura Tocci, counsel for plaintiffs, was m entioned in Mr. Montgom ery’s em ail and was copied on both Mr. Montgom ery’s and Mr. Mansour’s em ails, plaintiffs’ counsel neither engaged in nor responded to this em ail exchange. Plaintiffs state in their brief in support of their m otion to rem and, that on May 17, 20 16, coun sel for plaintiffs orally inform ed counsel for Conley-Beaver that plaintiffs intended to dism iss Conley-Beaver from this action upon consent of Harris and Getaway Tours (ECF No. 6); however, no evidence was provided indicating that plaintiffs relayed this inform ation, either in writing or otherwise, to Harris and Getaway Tours at that tim e. While the em ail exchange m entions rem ovin g defendants’ “understanding” that plaintiffs had agreed to dism iss Conley-Beaver, plaintiffs did not confirm this fact in the May 18 th em ail exchange. In fact, the exchange contains no inform ation from plaintiffs 26 whatsoever; it m erely discusses an oral agreem ent between defen dant Conley-Beaver and plaintiffs, which plaintiffs neither confirm ed nor denied. While counsel for plaintiffs m ay have m ade this decision unequivocally clear an d certain during the May 17th phone call, courts typically require “that an ‘other paper’ under 28 U.S.C. § 1446(b) consist of a written docum ent.” Cabibbo v. Einstein/ Noah Bagel Partners, L.P., 181 F. Supp. 2d 428, 431 (E.D. Pa. 20 0 2); see State Farm Fire & Cas. Co. v. Valspar Corp., 8 24 F. Supp. 2d 923, 936 (D.S.D. 20 10 ) (finding that oral com m unication is typically insufficient to constitute “other paper” and trigger the thirtyday statutory rem oval period); Entrekin v. Fisher Scientific Inc., 146 F.Supp.2d 594, 612 (D.N.J .20 0 1) (holding that oral com m unications, “m ade in an inform al setting without any transcription or sim ultaneous reduction to written form about such a m atter as settlem ent negotiations, are incapable of triggering the thirty-day lim itation for rem oval”); 14B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3731 (4th ed. 20 0 9) (“Courts ordinarily hold that oral statem ents do not trigger rem ovability under the second paragraph of Section 1446(b) because such statem ents do not qualify as an ‘other paper.’”). Given that plaintiffs neither sent not affirm ed in writing the content of the May 18 th em ails, this court cannot conclude that this corresponden ce m akes it “unequivocally clear an d certain” that the case had becom e rem ovable. As a result, the May 18 th em ails did not trigger the thirty-day rem oval period under 28 U.S.C. § 1446(b). 2. May 2 3 , 2 0 16 le tte r 27 The court next exam in es whether the letter plaintiffs’ counsel sent to all defendants on May 23, 20 16, which included an unsigned stipulation for discontinuance with respect to Conley-Beaver, m ade it “unequivocally clear an d certain” to Harris an d Getaway Tours that the case had becom e rem ovable. Unlike the May 18 th em ails, the correspondence on May 23, 20 16, included written confirm ation from plaintiffs that Conley-Beaver was being dism issed from the case. The only question is whether the rem oving defendants could have ascertained through an unsigned, unfiled stipulation that the m atter had becom e rem ovable. In Hessler v. Arm strong World Industries, Inc., 684 F. Supp. 393, 393 (D. Del. 198 8), the court had to determ in e whether an inform al settlem ent agreem ent with the nondiverse defen dant placed the diverse defendants on notice that the case was rem ovable and, thus, triggered the thirty-day rem oval period. The court held that the settlem ent agreem ent did not need to be form alized or presented to the court to com m ence the rem oval period, because “form al discontinuance is not a prerequisite for rem ovability” Id. at 395 (citing Lesher v. Andreozzi, 647 F.Supp. 920 , 921 (M.D.Pa.1986)); rather, the court determ ined that the case becam e rem ovable when the diverse party “received adequate notice, both by letters and by statem ents m ade in the Superior Court . . . that the requisites of rem ovability were present.” Id. at 395. The Hessler decision seem s to suggest that an inform al – i.e. unsigned and unfiled – agreem ent can serve as the triggerin g event under 28 U.S.C. § 1446(b). Other district court decisions support this finding. See Rawlings v. Prater, 981 F.Supp. 988, 990 (S.D.Miss.1997) (holding that rem oval was proper where the plaintiffs voluntarily abandon ed their claim s against a nondiverse defendant by entering into a settlem ent 28 agreem ent, even though release docum ent had not yet been fin alized); Mancari v. AC & S Co., 68 3 F. Supp. 91, 93 (D. Del. 1988) (“It is not required that discontinuance of the nondiverse defen dants be in writing or be form alized.”); Rowe v. J ohns-Manville, Civ. Action No. A. 8 6-60 44, 1987 WL 12266, at *2 (E.D. Pa. J une 9, 1987) (“any unequivocal indication of plaintiff's abandonm ent of its action against settling defendants is sufficient to effect discontinuance, an d a form al written stipulation to that effect is not required.”); Lesher, 647 F. Supp. at 921 (“We are unpersuaded by plaintiffs' argum ent that the [nondiverse] defendants m ust be form ally dism issed from this action before rem oval is perm issible.”). These decisions differ from the m atter at hand, however, in one significant m anner. These decisions each involved inform al settlem ent agreem ents, whereas the instant m atter involves an inform al stipulation of discontinuance. The court m ust, therefore, determ in e whether an unsigned stipulation is analogous to an inform al settlem ent agreem ent for purposes of com m encing the thirty-day rem oval period under 28 U.S.C. § 1446(b). Rem oving defendants argue that an unsigned, unfiled stipulation is not sim ilar to a settlem ent agreem en t because such a stipulation is not binding under state law, an d that consequently it does not m ake the case rem ovable and cannot serve as the triggering event under 28 U.S.C. § 1446(b). Rem oving defendants contend that had they filed a notice of rem oval prior to the filing of the stipulation on J une 15, 20 16, “it is likely that Plaintiffs would have m oved to rem and as there was not com plete diversity.” (ECF No. 11). 29 Rem oving defen dants rely heavily on First Star Savings Bank v. Am erican Title Insurance Co., Civ. Action No. 94-3716, 1994 WL 475273 (E.D. Pa. Aug. 29, 1994), to support their argum ent. First Star, however, is highly problem atic. Like the instant m atter, First Star involved a rem oving defen dant who filed a notice of rem oval after learning from the plaintiff’s counsel that the plaintiff intended to consent to the dism issal of the only nondiverse defen dant. The rem oving defendant was in receipt of this inform ation via a letter from the plaintiff’s counsel on or about J une 8 , 1994. First Star, 1994 WL 475273, at *2. The rem oving defendant filed for rem oval on J une 16, 1994, before the stipulation was signed or filed. Id. While the parties disagreed about the tim eliness of the defendant’s rem oval with respect to whether the letter from plaintiff’s counsel triggered the thirty-day rem oval period, the court did not resolve the dispute on that basis. Id. at n.5. Instead, the court found that because the nondiverse party had not yet been form ally dism issed from the action, there was no diversity of citizenship; consequently, the court rem anded due to lack of subject-m atter jurisdiction. Id. at 3. To support its finding that the state court action had not yet becom e rem ovable, the court relied on Hutton v. Tem ple University, 70 3 F. Supp. 391 (E.D. Pa. 1989), for the proposition that “the record of the state court is considered the sole source from which to ascertain whether a case originally n ot rem ovable has becom e rem ovable.” Id. (citing Hutton, 70 3 F. Supp. at 392). Based on this directive from Hutton, the district court exam ined the state court record, found that the parties had not signed and filed the stipulation, and determ ined that diversity jurisdiction did not exist. Id. The reliance of the court in First Star on Hutton, however, is m isplaced. In support of its statem ent that “the state court is considered the sole source from which to 30 ascertain whether a case origin ally not rem ovable has becom e rem ovable” the court in Hutton cited Bandag of Springfield, Inc. v. Bandag Inc., 537 F. Supp. 366 (W.D. Mo. 198 1). 7 In Bandag, the district court rem anded a case on the ground that the nondiverse defendants had never been dism issed and that, consequently, there was no diversity jurisdiction. Bandag, 537 F. Supp. at 368. The court stated that it determ ined that the nondiverse party had not been dism issed “[f]rom the records supplied to the Court.” Id. While it is clear from the court’s opinion that it relied on state court records to decide rem ovability, it does n ot follow that the decision to use state court records to m ake this decision m eans that state court records are the only source a federal court can consider when deciding whether a case has becom e rem ovable. This inferen ce is im properly drawn by the court in Hutton, and the court in First Star m istakenly adopted and relied upon it. In addition to being flawed due to the im proper inferen ces drawn from the case law, this inference is also in direct conflict with the m yriad of decisions that have found that 28 U.S.C. § 1446(b) can be triggered by “other papers” not filed in the state court proceedings. A.S. ex rel. Miller v. Sm ithKline Beecham Corp., 769 F.3d 20 4, 210 – 211 (3d Cir. 20 14) (triggering of 28 U.S.C. § 1446(b) based upon an order in another case); Akin v. Ashland Chem . Co., 156 F.3d 10 30 , 10 35– 10 36, 10 35 n.2 (10 th Cir. 1998) (triggering based upon an answer to interrogatory); Efford, 368 F.Supp.2d at 385 (triggering based upon attorney correspondence); Rahwar, 8 63 F. Supp. at 192 (triggering based upon “statem ent of dam ages” letter); Broderick, 859 F.Supp. at 179 (triggering based upon 7 The court in Hutton cited Moore's Federal Practice ¶ 0 .168 [3.– 5– 6] at 599 (2d ed. 1996). While this section of Moore’s Federal Practice in its second edition did reference that the state court record is the sole source from which to ascertain whether a case has becom e rem ovable, this reference does not appear in the m ost recent edition of Moore’s Federal Practice. See 16-10 7 Moore's Federal Practice - Civil § 10 7.140 (3d ed. 20 16). 31 letter indicating change of residency); Hessler, 684 F. Supp. at 395 (triggering based upon inform al settlement). Given that the m ajority of courts in and outside of the Third Circuit seem to reject the First Star’s basic presum ption that district courts cannot look outside the state court record to ascertain whether a case has becom e rem ovable, this court is unpersuaded by the reasoning and holding in First Star. While the case law is n ot perfectly clear about whether an unsigned stipulation can trigger the thirty-day rem oval period under 28 U.S.C. § 1446(b), this court finds two decisions particularly instructive – Eyal Lior v. Sit, 913 F. Supp. 8 68 (D.N.J . 1996), and King v. Bell & Howell Mail Processing System s Co., Civ. Action No. 97-130 3, 1997 WL 285969 (N.D. Ill. Apr. 24, 1997). In Eyal Lior the district court found that an unsigned stipulation of dism issal triggered the thirty-day rem oval period under 28 U.S.C. § 1446(b). In Eyal Lior, the rem oving defendants received an unsigned copy of a stipulation dism issing all claim s against the nondiverse defen dant via facsim ile on Novem ber 10 , 1995. Eyal Lior, 913 F. Supp. at 877. On Novem ber 23, 1995, counsel for the defendants signed the stipulation. On Novem ber 28, 1995, counsel for the plaintiffs signed the stipulation and filed it with the court. Id at 8 73. The rem oving defendants filed their origin al rem oval petition on Novem ber 28, 1995, and filed an am ended rem oval petition on Decem ber 14, 1995. Id. at 8 73, 8 78. The rem ovin g defendants argued that the m atter did not becom e rem ovable until the stipulation was filed on Novem ber 28, 1995. The court rejected this argum ent, finding instead that the case becam e rem ovable on Novem ber 10 , 1995, when the rem oving defendants received the unsigned copy of the stipulation, and that consequently the thirty-day rem oval period began on that date. Id. at 878. While the court’s decision in Eyal Lior suggests that a 32 stipulation – like a settlem ent agreem ent – need not be signed or reduced to its final term s to trigger the rem oval period under 28 U.S.C. § 1446(b), the court did not fully explain the reasoning behind this decision. It is som ewhat unclear as to why or how the court in Eyal Lior determ ined that an unsign ed stipulation enabled the rem oving defendant to ascertain that the case had becom e rem ovable. While Eyal Lior offers som e guidance, the court finds the district court’s decision in King v. Bell & Howell Mail Processing System s Co. particularly persuasive. In King, the plaintiff originally filed a case against Bell and Howell Com pany (“Bell and Howell”). King, 1997 WL 285969 at *1. The plaintiff later learned that the appropriate defendant was Bell and Howell Mail Processing System s Com pany (“Bell an d Howell Mail”). Id. Bell and Howell filed a m otion to dism iss on Decem ber 20 , 1996, which the plaintiff did not oppose, and on J anuary 6, 1997, the plaintiff was granted leave to am end her com plaint to add Bell and Howell Mail as a defendant. On J anuary 29, 1997, Bell and Howell’s m otion to dism iss was granted, leaving Bell and Howell Mail as the sole defendant. On February 25, 1997, Bell and Howell Mail filed a notice for rem oval based on diversity. Id. The court in King was tasked with determ ining whether the thirty-day rem oval period began on J anuary 6, 1997, when Bell and Howell Mail was joined to the case knowing that Bell and Howell’s pending m otion to dism iss was unopposed or whether the rem oval period began on J anuary 26, 1997, when Bell and Howell was form ally dism issed. Id. at *2. The court acknowledged that the law in this area is “not fully consistent, but the m ajority have held that the tim e period begin s to run once the rem oving party gains knowledge of the facts supporting rem oval, not when a pertinent order or pleading is 33 subsequently entered or filed.” Id. at *3. The court also recognized that 28 U.S.C. § 1446(b) does not require form ality or lim it federal courts to the “technical procedural rules of state courts.” Id. at *3– 4. Based upon this reason ing, the court in King decided that “Bell & Howell Mail could first ascertain that the case would be rem ovable when inform ed by plaintiff's counsel that Bell & Howell Mail would be added as a party and that the dism issal of Bell & Howell would not be opposed,” and that “[s]ince the notice of rem oval was not filed until m ore than 30 days after the am ended com plaint adding Bell & Howell Mail, the notice of rem oval was untim ely.” King, 1997 WL 285969, at *4. Like in King, which involved an unopposed m otion, this case involves an unopposed stipulation to discontinue. Here, rem oving defendants received written confirm ation from all parties on or before May 23, 20 16, that plaintiffs would be dism issing Conley-Beaver and that all parties consented to this stipulation. While this stipulation was not form al and m ay not have been perfected under state rules, this court concludes under the reasoning set forth in King that rem oving defendants could ascertain on May 23, 20 16, that the case had becom e rem ovable through plaintiffs’ written expression of intent to voluntarily dism iss the nondiverse defendant. As m ade clear in Hessler and King, neither form ality n or perfect com pliance with state procedural practices is required to trigger the thirty-day rem oval period under 28 U.S.C. § 1446(b). See J ohnson v. Allison, No. 3:12-CV-0 0 41, 20 12 WL 20 61462, at *4 (M.D. Pa. J une 7, 20 12) (quoting Tyler v. Prudential Ins. Co. of Am ., 524 F. Supp. 1211, 1213 (W.D. Pa. 198 1)) (“The fact that ‘service under state service practice has not been perfected does not in and of itself prevent rem oval.’”); Lesher by Lesher v. Andreozzi, 647 F. Supp. 920 , 921 (M.D. Pa. 1986) (“‘Even if the parties were found not to have perfected a 34 discontinuance under state court procedure, this Court determ ines plaintiffs' counsel's [action] established the prerequisites for rem oval diversity jurisdiction under 28 U.S.C. 1441(b).’”) (quoting Heniford v. Am erican Motors Sales Corp., 471 F.Supp. 328 (D. S.C.1979)); Erdey v. Am . Honda Co., 96 F.R.D. 593, 599 (M.D. La.), on reconsideration in part, 558 F. Supp. 10 5 (M.D. La. 1983) (“Where plaintiff, by his voluntary act has definitely in dicated his intention to discontin ue the action as to the nondiverse defendant . . . the case then becom es rem ovable under 28 U.S.C. § 1446(b). The technicality of how plaintiff's intention is expressed is of no m om ent—it is the expression of the inten t by plaintiff which m akes the case rem ovable.”) (citations om itted). While the stipulation itself m ay not have been signed by all the parties on May 23, 20 16, 8 even absent such perfection the unsigned stipulation put rem oving 8 The court need not exam ine when the parties “perfected” their stipulation of discontinuance with respect to Conley-Beaver, because perfect compliance under state procedural rules is not necessary to trigger 28 U.S.C. § 1446(b). J ohnson, 20 12 WL 20 61462, at *4; King, 1997 WL 285969 at *3– 4; Lesher, 647 F. Supp. at 921. Here, it appears likely that a state court would have found that plaintiffs com plied with the Pennsylvania Rules of Civil Procedure on or before May 23, 20 16, thus m aking the discontinuance of Conley-Beaver enforceable. In Pennsylvania, voluntary discontinuances are governed by the Pennsylvania Rules of Civil Procedure. Pa.R.C.P. 229(a) (“A discontinuance shall be the exclusive m ethod of voluntary term ination of an action, in whole or in part, by the plaintiff before com m encem ent of the trial.”). Pennsylvania Rule of Civil Procedure 229(b)(1) states that “a discontinuance m ay not be entered as to less than all defendants except upon the written consent of all parties or leave of court upon motion of any plaintiff or any defendant for whom plaintiff has stipulated in writing to the discontinuance.” Pa.R.C.P. 229(b)(1). A discontinuance against less than all defendants, therefore, requires either the written consent of all parties or an order of the court. It does not require both. See Toney v. Chester Cty. Hosp., 961 A.2d 192, 197 (Pa. Super. 20 0 8), aff'd, 36 A.3d 83 (Pa. 20 11) (“[i]n the absence of consent by all parties, leave of court was required to effectuate the discontinuance.”); Hilem an v. Morelli, 60 5 A.2d 377, 381 (Pa. Super. 1992) (finding that a court could enter a discontinuance against less than all defendants upon leave of court, even without a written petition or the consent of all parties). All parties agree that as of May 23, 20 16, the stipulation for discontinuance with respect to defendant Conley-Beaver was inform al, insomuch as it had not yet been filed. By its plain language, however, Rule 229 allows for the discontinuance of a party upon the written consent 35 defendants on notice that the case had becom e rem ovable. Because each party received written confirm ation, on or before May 23, 20 16, indicating that all the other parties of all parties – not the filing of this consent. While neither party presented, and this court is not aware of, a Pennsylvania state court decision in which a party attem pted to enforce an inform al discontinuance, rem oving defendants analogize this case to Vetenshtein ex rel. Vetenshtein v. City of Philadelphia, 755 A.2d 62 (Pa. Comm w. Ct. 20 0 0 ), wherein a defendant attem pted to enforce an inform al am endm ent to a pleading. In Vetenshtein, the plaintiff’s original com plaint included both federal claim s and com mon law tort claim s. Id. at 64. After the plaintiff becam e aware that the defendant intended to remove the case to federal court based upon the federal claim s, plaintiff orally agreed not to pursue these claim s in order to avoid the possibility of rem oval. Id. The plaintiff sent a letter to the defendant confirm ing this agreem ent. Id. When the plaintiff later attempted to revive the federal claims, the court held that the plaintiff’s letter did not discontinue the federal claim s, because the letter did not follow the Pennsylvania Rules of Civil Procedure. Specifically, the court held that the letter attem pted to am end the pleadings without com plying with the requirem ents of Pennsylvania Rule of Civil Procedure 10 33, which sets forth the exclusive method for am ending pleadings. Id. at 66. Rem oving defendants argue that Pennsylvania Rule of Civil Procedure 1033 is analogous to Pennsylvania Rule of Civil Procedure 229(b)(1), because “[Pa.R.C.P] 1033, like Pa.R.C.P [] 229, requires that a party m ay am end a pleading to add or delete a new cause of action or party, only by filed consent of the adverse party or leave of court.” (ECF No. 15 n.2.) This comparison, however, overlooks a crucial difference between these rules. Rule 10 33 allows a party to am end its pleading “either by filed consent of the adverse party or by leave of court.” Pa.R.C.P. 1033. Rule 229, on the other hand, allows a party to discontinue an action with respect to less than all defendants either by “w ritten consent of all parties or leave of court.” Pa.R.C.P. 229(b)(1). While Rule 10 33 explicitly requires that consent be filed with the court, Rule 229 sets out no such requirem ent. In fact, this difference in phrasing shows that the legislature had the capacity and know-how to adopt a procedural rule requiring that consent be filed with the court, but that instead the legislature chose to adopt a m ore lenient standard with respect to discontinuances, requiring m erely that consent to a discontinuance be in writing, rather than requiring that parties file the consent with the court. As of May 23, 20 16, all parties had provided written consent to the discontinuance of Conley-Beaver. On May 18, 20 16 counsel for Conley-Beaver and counsel for Harris and Getaway Tours sent em ails to all parties evincing a clear intent to consent to the discontinuance. Koleski v. Park, 525 A.2d 40 5, 40 7 (Pa. Super. Ct. 1987) (“Stipulations are interpreted according to the intent of the parties.”). On May 23, 20 16, plaintiffs responded by sending a proposed stipulation and cover letter evincing their intent to discontinue the action with respect to Conley-Beaver. The language of Rule 229 does not require that the parties sign the stipulation itself. The Rule establishes no requirem ents with respect to the form of this consent, beyond that it be in writing and that it com e from all parties. See Pa.R.C.P. 229(b)(1). Because all parties provided the written consent to the stipulation of discontinuance on or before May 23, 20 16, as required under Rule 229(b)(1), the stipulation of discontinuance becam e enforceable on that day. Even were the parties required to perfectly com ply with technical state procedural rules in order to trigger § 1446(b), it is likely that plaintiffs com plied with these procedures on May 23, 20 16. This conclusion is further supported by the well-established rule that “all doubts should be resolved in favor of rem and.” Steel Valley Auth., 80 9 F.2d at 10 10 . 36 were consenting to the discontinuance of Conley-Beaver, rem oving defendants’ receipt of the unsigned stipulation triggered the thirty-day rem oval period under 28 U.S.C. § 1446(b). Harris and Getaway Tours had thirty days from May 23, 20 16 – that is, until J une 22, 20 16 – to file their notice of rem oval. Harris and Getaway Tours filed their notice of rem oval on J une 28, 20 16. This notice of rem oval was filed outside the thirtyday rem oval period and is untim ely. Consequently, plaintiffs’ m otion to rem and m ust be granted. V. Co n clu s io n For the reasons set forth above, while the court does not find that any of the actions rem oving defendants took in state court, including filing a cross-claim at the outset of litigation, engaging in lim ited discovery prior to filing for rem oval, participating in ADR, and continuing to pursue related, though non-ancillary state claim s, constituted a waiver of their rem oval rights, the court must rem and on the basis that rem oving defendants filed an untim ely notice of rem oval. Plaintiffs’ m otion is, therefore, granted. An appropriate order will be entered. Dated: Decem ber 22, 20 16 / s/ J oy Flowers Conti J oy Flowers Conti Chief United States District J udge 37
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