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A federal judge in Pennsylvania has ruled that a personal injury lawsuit against Valley Forge Military Academy was improperly transferred out of state court and must be remanded.

U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania granted plaintiff John Doe's request to remand the case to the Philadelphia Court of Common Pleas. Doe sued the academy for traumatic physical and psychological injuries he allegedly sustained while there.

The complaint alleged four counts, including negligence; negligent and intentional infliction of emotional distress; negligent failure to rescue; and negligence per se for failure to report suspected child abuse in violation of the Pennsylvania Child Protective Services Law, according to Baylson's opinion.

Doe argued that the academy's subsequent removal of the case to federal court was improper because the notice of removal lacked a concise argument for its basis; that the defendant rule in 28 U.S.C. Section 1441(b)(2) precludes removal; and that the court lacks federal question jurisdiction over this case because of the state law claims it involves.

Valley Forge responded to Doe's points, arguing that removal to federal court was proper under the defendant rule because it was not properly served. The academy also claimed that while no federal question was presented, the court maintains jurisdiction on the basis of diversity of citizenship.

The question centered on whether sending a copy of the notice of removal to the plaintiff actually effectuated the removal itself, according to Baylson, and alternatively, whether filing a notice or removal in federal court effectuated the removal.

“If, as VFMAC claims, sending a copy of the notice to the Court of Common Pleas via facsimile on April 22, 2019 'effect[ed] the removal,' there would have been no reason for VFMAC to subsequently file a copy of the notice with the Court of Common Pleas on May 10, 2019,” Baylson said.

Turning to the second component of Valley Forge's argument, Baylson looked to the Third Circuit's 2018 ruling in Encompass Insurance v. Stone Mansion Restaurant. In that case, the Third Circuit held the defendant rule “precludes removal on the basis of in-state citizenship only when the defendant has been properly joined and served.”

Valley Forge also argued that removal is proper as long as an in-state defendant files a notice of removal with the district court before it is served, according to Baylson.

However, Baylson said that the Third Circuit's ruling was more limited than the academy made it out to be, and did not address how to interpret the forum defendant rule under Section 1446(d).

“To the court's knowledge, the only district court to have addressed the intersection of Section 1446(d) and the forum defendant rule after Encompass followed the same approach,” Baylson said, referring to Hardman v. Bristol-Myers Squibb in the Southern District of New York.

“Here, it is undisputed that VFMAC filed the notice of removal in this court on April 19, 2019; that plaintiff served VFMAC with the complaint in accordance with state law on May 1, 2019; and that VFMAC filed a copy of the notice of removal with the Court of Common Pleas on May 10, 2019,” Baylson said. “Because VFMAC was 'properly joined and served' before VFMAC completed all three steps necessary to effect removal under Section 1446(d), the court concludes that the forum defendant rule precludes removal on the basis of diversity jurisdiction. As the court rests its decision on the forum defendant rule, the court does [not] reach any conclusions as to plaintiff's additional challenges to removal.”

Brian D. Kent of Laffey, Bucci & Kent represents Doe and did not respond to a request for comment. Nor did the academy's attorney, George B. Randolph of Riley Riper Hollin & Colagreco.