Baldy v. First Niagara Pavilion, C.C.R.L., LLC

• Decision Date: 03 December 2015
• Docket Number: CIVIL ACTION NO. 15-1190
• Citation: 149 F.Supp.3d 551
• Parties: Patrick Baldy, Plaintiff, v. First Niagara Pavilion, C.C.R.L., LLC, Vans Warped Tour, Landmark Event Staffing Services, Ticketmaster, Live Nation Entertainment, Broadspire Services, Inc. and Gallagher Basset Services, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

149 F.Supp.3d 551

Patrick Baldy, Plaintiff,

v.First Niagara Pavilion, C.C.R.L., LLC, Vans Warped Tour, Landmark Event Staffing Services, Ticketmaster, Live Nation Entertainment, Broadspire Services, Inc. and Gallagher Basset Services, Defendants.

CIVIL ACTION NO. 15-1190

United States District Court, W.D. Pennsylvania.

Signed December 03, 2015

Eric T. Chaffin, Patrick C. Booth, Chaffin Luhana LLP, Weirton, WV, for Plaintiff.

John F. Deasy, Marshall, Dennehey, Warner, Coleman & Goggin, Lauren M. Despot, Michael F. Nerone, Pion, Nerone, Girman, Winslow & Smith, P.C., Paul Alexander Custer, Law Offices of Bernard J. Kelly, Pittsburgh, PA, for Defendants.

OPINION

CONTI, Chief District Judge

I. Introduction

Pending before the court in this diversity action is a motion to remand filed by plaintiff Patrick Baldy (“plaintiff”) (ECF No. 17.) Plaintiff argues the notice of removal filed by five of the eight defendants in this case, i.e., First Niagara Pavilion (“First Niagara”), Broadspire Services, Inc. (“Broadspire”), Gallagher Basset Services (“Gallagher”), Live Nation Entertainment (“Live Nation”), and Ticketmaster (collectively with First Niagara, Broadspire, Gallagher, and Live Nation, the “removing defendants”) was defective, and, therefore, this case should be remanded to the Court of Common Pleas of Allegheny County. The removing defendants in the notice of removal asserted that the three other defendants, C.C.R.L., LLC (“C.C.R.L.”), Van Warped Tour (“Warped Tour”), and Landmark Event Staffing Services (“Landmark” and collectively with C.C.R.L. and Warped Tour, the “nonremoving defendants”) did not object to the removal of this action to this court. Plaintiff argues the removal notice was defective because the removing defendants were required to obtain “affirmative joinder or consent of all served defendants” to effectuate proper removal under 28 U.S.C. § 1446. (ECF No. 20 at 7.) All defendants filed a joint response in opposition to the motion for remand. (ECF No. 23.) Counsel for the removing defendants attached to the response in opposition a declaration averring that she obtained the consent of the nonremoving defendants to remove this action to this court prior to filing the notice of removal. (ECF No. 23-1 ¶¶ 2-3.) Defendants argue that under those circumstances, it was proper for counsel for the removing defendants to represent to the court via the removal notice that all defendants consented to removal. (ECF No. 24 at 3.)

The parties' arguments raise an issue about which there is a split in the circuits, i.e., whether a defendant may verify consent to removal on another codefendant's behalf. For the reasons set forth in this opinion, this court will follow the rationale of the district courts within the Third Circuit that have addressed this issue and hold that—in light of the strict interpretation of the removal statutes mandated by the Supreme Court of the United States and the Third Circuit Court of Appeals—a defendant to effectuate proper removal of a case may not communicate to the court consent to removal on another codefendant's behalf; rather, each defendant must within thirty days of plaintiff's service of the complaint upon that defendant “clearly and unambiguously join... in the removing defendant's notice or removal” or “file... a separate written consent to removal with the court.” A.R. v. Norris , Civ. Action 15–1780, 2015 WL 6951872, at *3 (M.D.Pa. Nov. 10, 2015). Based upon the foregoing and as fully explained herein, the removing defendants' notice of removal was defective because the nonremoving defendants did not join in the notice of removal by having their counsel sign the notice of removal or otherwise inform the court of their consent to removal within thirty days of being served with the complaint. In other words, defendants' joint response in opposition advising the court that the nonremoving defendants consented to removal was untimely filed. This case will, therefore, be remanded to the Court of Common Pleas of Allegheny County.

II. Procedural History

On August 14, 2015, plaintiff served counsel for the removing defendants with a copy of the complaint. (ECF No. 19-6 (“Ex. E”).) On August 18, 2015, plaintiff served C.C.R.L. and Warped Tour each with a copy of the complaint. (ECF No. 19-7 (“Exs. F and G”).) On September 1, 2015, plaintiff served Landmark with a copy of the complaint. (ECF No. 19-9 (“Ex. H”).) Plaintiff in the complaint asserts a negligence claim against First Niagara, C.C.R.L., Warped Tour, Landmark, Ticketmaster, and Live Nation. Plaintiff in the complaint asserts a breach of contract claim against Broadspire and Gallagher. Plaintiff alleges in the complaint that:

— he attended Warped Tour, a music festival, held at First Niagara, a pavilion in Burgettstown, Pennsylvania (ECF No. 1-2 ¶ 23);

— while on the First Niagara property during Warped Tour, plaintiff was “violently shoved and trampled by a gathering of other concert attendees due to inadequate number of security, inadequately trained security, and/or inadequate crowd control at First Niagara” (Id. ¶ 25);

— he suffered various neck and back injuries as a result of being violently shoved and trampled (Id. ¶ 32);

— he has unpaid medical bills, suffered lost wages and earning capacity, and other future economic loss (Id. ¶ 33); and

— Broadspire and Gallagher issued an insurance policy that provided coverage to individuals injured at First Niagara, but failed to fully provide their limits of insurance to plaintiff to compensate him for his injuries (Id. ¶¶ 43-44).

On September 11, 2015, the removing defendants filed with this court a notice of removal from the Court of Common Pleas of Allegheny County on the basis of diversity jurisdiction. (ECF No. 1.) The removing defendants attached a copy of the complaint to the notice of removal. On September 17, 2015, the removing defendants filed an answer to the complaint and a crossclaim against Landmark. (ECF No. 6.) On October 8, 2015, C.C.R.L. and Warped Tour filed an answer to the complaint and a crossclaim against Live Nation. (ECF No. 16.)

On October 9, 2015, plaintiff filed a motion to remand to state court and a brief in support of the motion. (ECF Nos. 19, 20.)¹ On October 16, 2015, defendants filed a joint response in opposition to the motion for remand and a brief in support of the response. (ECF Nos. 23, 24.) Defendants attached to the joint response in opposition a declaration by counsel for the removing defendants. (ECF No. 23-1.) Counsel for the removing defendants declared, among other things, that:

— on September 10, 2015, she spoke with in-house counsel for C.C.R.L. and Warped Tour and he consented to removal of the case from the Court of Common Pleas of Allegheny County to this court (Id. ¶ 2); and

— on September 11, 2015, she spoke with counsel for Landmark, and he agreed to removal of this case from the Court of Common Pleas of Allegheny County to this court (Id. ¶ 3.)

On October 19, 2015, Landmark filed an answer to the complaint and crossclaims against C.C.R.L. and Live Nation. (ECF No. 26.) On October 21, 2015, C.C.R.L. and Live Nation filed an answer to the crossclaims. (ECF No. 27.) On October 26, 2015, C.C.R.L. and Warped Tour filed an amended answer and crossclaim against Landmark. (ECF No. 28.) The motion for remand having been fully briefed is ripe for disposition.

III. Discussion

A. Applicable Law

“[D]istrict courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of plaintiff's service of the complaint upon defendant. 28 U.S.C. § 1446(b) (emphasis added). With respect to a case involving multiple defendants, “each defendant individually has thirty days to file a notice of removal beginning when that particular defendant is served.” Delalla v. Hanover Ins. , 660 F.3d 180, 185 (3d Cir.2011). “If defendants are served at different times, however, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.” Pujols–Sanchez v. Wexxar Packaging, Inc. , 2014 WL 4058726, at *1 (E.D.Pa. Aug. 14, 2014) (citing 28 U.S.C. § 1446(b)(2)(C) ).

“[T]he burden of establishing removal jurisdiction rests with the defendant.” Dukes v. U.S. Healthcare, Inc. , 57 F.3d 350, 359 (3d Cir.1995). “Defendants must also establish that all pertinent procedural requirements for removal have been met.” A.R. v. Norris , Civ. Action No. 15–1780, 2015 WL 6951872, at *1 (M.D.Pa. Nov. 10, 2015) (citing Shadie v. Aventis Pasteur, Inc. , 254 F.Supp.2d 509, 514 (M.D.Pa.2003) ).

“Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court.” McGuire v. Safeware, Inc. , Civ. Action No. 13–3746, 2013 WL 5272767, at * 1 (E.D.Pa. Sept. 17, 2013) (citing Cook v. Soft Sheen Carson, Inc. , Civ. Action No. 08–1542, 2008 WL 4606305, at *1 (D.N.J. Oct. 15, 2008) ). “Cases may be remanded under § 1447(c) for (1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure.” PAS v. Travelers Ins. Co. , 7 F.3d 349, 352 (3d Cir.1993).² “It is settled that the removal statutes ... are to be strictly construed against removal and all doubts should be resolved in favor of remand.” Steel Valley Auth. v. Union Switch and Signal Div. , 809 F.2d 1006, 1010 (3d Cir.1987) (footnote omitted).

Here, plaintiff argues this case should be remanded because of a defect in the...