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In a ruling that should serve as a warning to defense lawyers, a federal judge has remanded a products liability suit back to state court after finding that the 30-day time limit for removing the case began to run when the plaintiff filed a “writ of summons” that included all the information needed to establish federal diversity jurisdiction. The ruling by Senior U.S. District Judge Ronald L. Buckwalter in Reed v. Linco-Electromatic Inc. is a victory for plaintiffs attorney Robert J. Mongeluzzi of Saltz Mongeluzzi Barrett & Bendesky, who argued that the writ he filed put the defendant on notice that all the elements existed for federal diversity jurisdiction. In his motion for remand, Mongeluzzi noted that the writ specifically stated that the plaintiff was seeking “more than $150,000″ and that the plaintiff and defendant were “citizens” of different states. As a result, Mongeluzzi argued, if defense attorney John J. Hatzell Jr. wanted to remove the case to U.S. District Court, he should not have waited for the plaintiff to file a complaint. But Hatzell argued in his brief that the writ filed by Mongeluzzi was “a perversion of the official cover sheet of the Philadelphia Court of Common Pleas.” The official form, Hatzell noted, calls for the plaintiff to check off one of two boxes, indicating that the “amount in controversy” is either “$50,000 or less” or “more than $50,000.” Hatzell argued that Mongeluzzi improperly altered the form to create a new category of suits seeking “more than $150,000.” “Essentially, plaintiff has altered an official court form to suit his objectives of putting defendant on notice that all of the required elements of federal jurisdiction are present,” Hatzell wrote. “It is impermissible for plaintiff to alter an official court form to suit his objective,” Hatzell stated. Hatzell also argued that a writ of summons cannot be considered an “initial pleading” that starts the clock running for purposes of removing a case to federal court. Although the federal removal statute does not define “initial pleading,” Hatzell argued that Pennsylvania law does. “A writ of summons is notably absent from the list of pleadings allowed [in Rule 1017 of the Pennsylvania Rules of Civil Procedure],” Hatzell wrote. As a result, Hatzell argued, under the federal removal statute, “the defendant need not respond to plaintiff’s writ of summons because it is not a pleading under Pennsylvania law.” But Mongeluzzi insisted in his brief that the law was on his side because the 3rd U.S. Circuit Court of Appeals specifically held in its 1993 decision in Foster v. Mutual Fire Marine & Inland Insurance Co. that the 30-day time limit for removing a case to federal court may be triggered by a writ of summons if the document provides “adequate notice of federal jurisdiction.” Mongeluzzi argued that the writ he filed for plaintiff Thomas Reed satisfied the Foster test because it pleaded an amount in controversy well above the $75,000 federal minimum. And instead of simply listing the addresses of the parties, Mongeluzzi noted that he had specifically stated that the plaintiff was “a citizen of Pennsylvania” and that the defendant was “a citizen of Texas.” But Hatzell insisted that a proper reading of Foster shows that the law is on his side. Mongeluzzi’s argument, Hatzell said, relies on information he included in his “civil cover sheet” filed along with the writ of summons. Hatzell argued that the civil cover sheet is “not part of the pleading under Philadelphia local rules, nor is it mentioned in the Foster opinion.” The Foster decision also recognized that defendants may want to ascertain the nature of a lawsuit before deciding whether to remove to federal court, Hatzell said, and instructed that defendants “may resolve this by filing a motion to compel filing of the complaint.” Hatzell insisted that he “engaged in the procedure suggested by Foster” by filing a motion to compel and by removing the case within 30 days of the filing of the complaint. But since the state court process of acting on such a motion takes more than 30 days, Hatzell said, his removal of the case occurred more than 30 days after the writ was filed. “This incongruity in the Foster decision should be resolved in favor of the defendant,” Hatzell wrote. But Buckwalter sided with Mongeluzzi. In a one-page order, Buckwalter noted that Foster “held that if a writ of summons provides adequate notice of federal jurisdiction within the four corners of the document, then it is a sufficient pleading to start the 30-day notice of removal clock.” Mongeluzzi’s writ satisfied the Foster test, Buckwalter said, because it “put defendant on notice that all of the elements of federal diversity jurisdiction were present.” In the suit, plaintiff Thomas Reed claims that while working as a driver of a propane tanker truck in May 2002, he was seriously burned in a “flash fire” at the Motiva Refinery propane loading dock in Delaware City, Del. The suit alleges that the fire erupted because a device manufactured by Linco-Electromatic malfunctioned as Reed was in the process of attaching a loading hose to his truck. Reed suffered “unspeakable pain,” the suit alleges, when he was engulfed in flames that “burned his clothes off his body.” According to the suit, Reed suffered second- and third-degree burns over one-third of his body and was hospitalized for 16 days. Hatzell was out of the office Wednesday and could not be reached for comment on the judge’s decision.

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