Opinion
Civil Action No. 02-CV-7428
January 8, 2003
MEMORANDUM AND ORDER
Presently before this court are Plaintiff Lancaster County Office of Aging's ("LCOA") Motion for Remand to State Court filed on October 23, 2002; and Defendants Alta and Linda Schoener's Memorandum in Opposition to Petition to Remand filed on November 26, 2002. Defendants' assert removal jurisdiction under 28 U.S.C. § 1441. Plaintiffs motion for remand pursuant to 28 U.S.C. § 1447 (c) will be granted because the action is not removable under 28 U.S.C. § 1441.
In the alternative, Plaintiff argues that the action is not removable under 28 U.S.C. § 1441 because the action is not a "civil" action under § 1441. This argument has little merit. The state court action has a plaintiff and a defendant. It is not being conducted within an administrative agency's adjudication system. The action is in Pennsylvania's Court of Common Pleas which is a trial court of general jurisdiction. Although the action is not one for a criminal search warrant, the LCOA seeks a civil injunction from a court of general jurisdiction that requires the Defendant to submit a mental evaluation and disclose her personal bank records to the county government for inspection. After the LCOA completes its internal investigation and makes a decision regarding the care of Alta Schoener, the outcome of the agency's investigation may be appealed by Alta or Linda Schoener under 35 P.S. § 10225.308 and 42 P.S. § 933(2) to the Court of Common Pleas. If the LCOA wants to pursue its own recommendations, it must proceed by filling a civil or criminal complaint in the Court of Common Pleas. Its activities are similar to a criminal prosecutor's. The prosecutor needs a criminal warrant for certain investigations. If the prosecutor decides to proceed with an action for sanctions after its internal investigation, it must file a civil or criminal complaint against the accused in court. The LCOA's action is most definitely a civil action because the process is controlled and adjudicated by the Court of Common Pleas. Plaintiff does not cite an authority to the contrary.
I. Background
Alta Schoener is in her late eighties. Since 1993, her daughter Linda Schoener of New York has had power of attorney. Alta Schoener resided at the Oak Leaf Manor Personal Care Home until August 2002. She is currently in New York City recovering from cancer treatment. Alta Schoener has not paid her room and board bills at Oak Leaf Manor since June 2002 and owes in excess of six thousand dollars. The Schoeners claim that Oak Leaf Manor has double billed Alta Schoener for services and they dispute the charges.On June 11, 2002 the LCOA received a report of alleged need for protective services for Alta Schoener. The LCOA cannot disclose the identity of the reporter. Alta and Linda Schoener claim that the reporter is an absent family member in search of Alta Schoener's assets. Like Alta and Linda Schoener, this court does not know the reporter's identity.
The LCOA has learned of alleged questionable activities regarding Alta Schoener's bank accounts, including numerous wire transfers to Linda Schoener and numerous ATM withdrawals. The LCOA has a duty under Pennsylvania law to investigate reports of abuse against Lancaster County residents over the age of sixty. The LCOA attempted to investigate the report with the permission of Alta Schoener. Alta Schoener refused to allow the LCOA access to her bank records without the consent of Linda Schoener. The LCOA then contacted Linda Schoener by letter to gain access to the bank records. Linda Schoener also refused the LCOA access. The LCOA then instituted an action in Lancaster County's Court of Common Pleas for an injunction allowing it access to the bank records and ordering Alta Schoener to submit to a psychiatric assessment.
Linda and Alta Schoener claim that they were not properly served with notice of the state court action. Within the thirty days, Linda and Alta Schoener removed the action to this court pursuant to 28 U.S.C. § 1441.
II. Removal Jurisdiction
Defendants explicitly invoked 28 U.S.C. § 1441 as the basis of their removal to federal court. Removal jurisdiction is lacking in this case because Plaintiff could not have initially filled its complaint in federal court based on the court's original jurisdiction. Neither federal question jurisdiction nor diversity jurisdiction would have existed.
Defendants are proceeding pro se. Pro se briefs and motions will be liberally construed to ensure that pro se litigants are afforded proper deference. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se drafted complaint is to a "less stringent sandard than formal pleadings drafted by lawyers . . . .").
A. 28 U.S.C. § 1441 in General
Any civil action brought in state court may be removed by the defendant to the federal district court in the district where such action is pending, if the district court would have original jurisdiction over the matter. 28 U.S.C. § 1441 (a); Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 7-8 (1983); U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388-89 (3d Cir. 2002). Where removal is based on diversity jurisdiction, the matter must be a case which the federal courts would have had original jurisdiction under 28 U.S.C. § 1332. Diversity jurisdiction is properly invoked in cases where there is complete diversity of citizenship between plaintiffs and defendants and where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. See Development Fin. Corp. v. Alpha Housing Health Care. Inc., 54 F.3d 156, 158 (3d Cir. 1995) ("It is axiomatic that the federal judiciary's diversity jurisdiction depends on complete diversity between all plaintiffs and all defendants.") (citingStrawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)).
Where the parties are not diverse, removal is appropriate only if the case falls within the district court's original "federal question" jurisdiction: "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331, 1441(b); Franchise Tax Bd., 463 U.S. at 8; U.S. Express Lines Ltd., 281 F.3d at 389.
In determining whether a case arises under federal law, courts are instructed to look to the plaintiffs "well-pleaded complaint." Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808, (1986). It is not enough that a federal question is or may be raised as a defense Id; Trent Realty Assoc. v. First Federal Sav. Loan Ass'n, 657 F.2d 29, 33 (3d Cir. 1981). "[T]he controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal."Westmoreland Hosp. Ass'n v. Blue Cross of W. Pa., 605 F.2d 119, 122 (3d Cir. 1979) (quoting Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 113, (1936)).
The state suit need not invoke a federal law in order to "arise under" it for removal purposes. It is sufficient that the merits of the litigation turn on a substantial federal issue that is "an element, and an essential one, of the plaintiffs cause of action." Gully, 299 U.S. at 112. The controversy must be "genuine and present . . . not merely . . . conjectural." Id. at 113. In short, the federal law "must be in the forefront of the case and not collateral, peripheral, or remote." Merrell Dow, 478 U.S. at 813 n. 11; see also United Jersey Banks v. Parell, 783 F.2d 360, 367 (3d Cir. 1986) (finding no federal question existed because right to relief under state law did not require resolution of a substantial question of federal law); U.S. Express Lines Ltd., 281 F.3d at 389. It need not, however, be a situation in which federal law completely preempts state law. See Goepel v. Nat'l Postal Mail Handlers Union, 36 F.3d 306 (3d Cir. 1994) (discussing the"complete preemption" doctrine).
B. Removal Jurisdiction under § 1441 is Lacking in this Case
Diversity does not exist in the present case. The LCOA is based in Lancaster County, Pennsylvania. The only named defendant in the state action is Alta Schoener. As Alta Schoener was a resident of Pennsylvania at the time the suit was commenced, the parties are not diverse. The joining of Linda Schoener as a defendant to the state action does not allow removal jurisdiction based on diversity grounds. Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity of all plaintiffs from all defendants. Complete diversity is lacking. Therefore, removal jurisdiction based on 28 U.S.C. § 1441 (b).
In portions of their briefs, Defendants claim that Alta Schoener is no longer a resident of Pennsylvania because she is residing in New York for medical treatment. The relevant time for determining the existence of citizenship "in a particular state for purposes of diversity jurisdiction is the time that the suit is commenced by filing the summons and complaint." 13B CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3612 (2d ed. 1987 Supp. 2002); see, e.g., Anderson v. Watt, 138 U.S. 694, 701-02, 707-08 (1891); Southern Cross Overseas Agencies. Inc. v. Wah Kong Shipping Group Ltd., 181 F.3d 410, 414 (3d Cir. 1999). At the time the suit was commenced, Alta Schoener was a citizen of Pennsylvania. Moreover, at the time the action was removed, Alta Schoener was listed as a resident and citizen of Lancaster on her Civil Cover Sheet filed with this court on September 23, 2002.
Linda Schoener is not currently a party to the state action, but asserts that she is the true defendant in the state action. She has not sought to be joined as a party to the state action. See Pl.'s Br. at ¶¶ 13-14 filed on Oct. 23, 2002.
The LCOA's case does not involve "artful pleading," which "requires a court to peer through what are ostensibly wholly state claims to discern the federal question lurking in the verbiage." U.S. Express Lines Ltd., 281 F.3d at 389 (citing United Jersey Banks, 783 F.2d at 367). The LCOA is raising state statutory claims in state court. Specifically, the LCOA is seeking a court injunction that allows it access to documents regarding Alta Schoener's financial records pursuant to 35 P.S. § 10225.304(h). The court action was instigated against Alta Schoener so that the LCOA could fulfill its duty to investigate complaints of abuse under 35 P.S. § 10225.303. Pennsylvania's Older Adults Protective Services Act allows the state to investigate accusations of abuse against elderly residents. The LCOA does not have a federal claim against the defendants that it has artfully left out of its complaint. There is no federal equivalent of the Older Adults Protective Services Act, and federal law does not preempt the state statute. The Plaintiff's claims do not contain a federal question. Therefore, original jurisdiction based 28 U.S.C. § 1331 is lacking and removal jurisdiction is lacking under 28 U.S.C. § 1441 (a).
Defendants argue that their defenses and potential counterclaims raise federal questions that invoke the original jurisdiction of this court. But it is not enough that a federal question is or may be raised as a defense. Merrell Dow, 478 U.S. at 808; Trent Realty, 657 F.2d at 33. A case is not removable on the basis of a federal defense. See Caterpillar, Inc., 482 U.S. at 393; County of Delaware v. Government Systems. Inc. — F. Supp.2d —, 2002 WL 31202999 (E.D. Pa. Sept. 27, 2002). This is so even if the defense is anticipated in the plaintiff's complaint and "both parties concede that the federal defense is the only question at issue" Id.; see Lazorko v. Pennsylvania Hosp., 237 F.3d 242, 248 (3rd Cir. 2000). Moreover, the Third Circuit has adopted the majority rule that counterclaims may not be considered in the removal context to establish federal jurisdiction. See Spectacor Mgmt. Group v. Brown, 131 F.3d 120, 125 (3d Cir. 1997). Therefore, Defendants attempt to correct the lack of original jurisdiction by claiming federal defenses and counter claims does not confer removal jurisdiction under 28 U.S.C. § 1441.
III. Conclusion
This court does not have jurisdiction of this case because the requirements of 28 U.S.C. § 1441 have not been met. This court would not have had original jurisdiction over this action if it were initially filed in this court. Therefore, Plaintiff's motion to remand will be granted. An appropriate order follows.