Carey v. Bd. of Governors of Kernwood Country Club, CIV.A.03-12053-NMG.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 337 F.Supp.2d 339
• Docket Number: No. CIV.A.03-12053-NMG.,CIV.A.03-12053-NMG.
• Parties: Margaret L. CAREY, Administratrix of the Estate of Adam P. Carey, Plaintiff, v. BOARD OF GOVERNORS OF the KERNWOOD COUNTRY CLUB, Lawrence Slater, Richard Bane, Bruce S. Rafey, Frank Cole, James N. New, Brian Strasnick, Martin C. Goldman, Edward Rice, Estelle Whitman, J. Bruce Gordon, Irving Weisman, Michael Rubin, Howard Rosenkrantz, Gerald Gordon, Richard Rothbard, Jerold Garfield, Stephen Madow and Richard Tatelman, and Textron, Inc. (E-Z-GO Textron), Defendants.
• Decision Date: 17 September 2004

337 F.Supp.2d 339 Margaret L. CAREY, Administratrix of the Estate of Adam P. Carey, Plaintiff,
v.
BOARD OF GOVERNORS OF the KERNWOOD COUNTRY CLUB, Lawrence Slater, Richard Bane, Bruce S. Rafey, Frank Cole, James N. New, Brian Strasnick, Martin C. Goldman, Edward Rice, Estelle Whitman, J. Bruce Gordon, Irving Weisman, Michael Rubin, Howard Rosenkrantz, Gerald Gordon, Richard Rothbard, Jerold Garfield, Stephen Madow and Richard Tatelman, and Textron, Inc. (E-Z-GO Textron), Defendants. No. CIV.A.03-12053-NMG. United States District Court, D. Massachusetts. September 17, 2004.

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George F. Leahy, Law Office of George F. Leahy, West Boxford, Jocelyn M. Sedney, Brody, Hardoon, Perkins & Kesten, Richard E. Brody, Brody, Hardoon, Perkins & Kesten LLP, Boston, MA, for Margaret L. Carey, Administratrix of the Estate of Adam P. Carey, Plaintiff.

Edward J. Denn, Gilbert & Renton, Robert J. Gilbert, Gilbert & Renton, Jeffrey B. Renton, Gilbert & Renton, Andover, Kevin M. Hensley, Warren, Hensley, & Bowen, LLP, John D. Boyle, Boyle Morrissey & Campo, Lisa V. Kouchakdjian, Boyle, Morrissey & Campo, P.C., Mark A. Darling, Cogavin and Waystack, Boston, MA, Gerald C. DeMaria, Higgins, Cavanagh & Cooney, John F. Kelleher, Higgins, Cavanagh & Cooney, Providence, RI, for Board of Governors of the Kernwood Country Club, Lawrence Slater, Richard Bane, Bruce S. Rafey, Frank Cole, James M. New, Brian Strasnick, Martin C. Goldman, Edward Rice, Estelle Whitman, J. Bruce Gordon, Irving Weisman, Michael Rubin, Howard Rosenkrantz, Gerard Gordon, Richard Rothbard, Jerold Garfield, Stephen Madow, Richard Tatelman, Textron, Inc., (E-Z-GO Textron), Defendants.

MEMORANDUM & ORDER

GORTON, District Judge.

Pursuant to a 14-count complaint filed in Essex Superior Court and removed to this Court in October, 2003, the Plaintiff Margaret L. Carey ("Carey"), on behalf of the estate of her son, Adam P. Carey (and his survivors), brings this wrongful death action against the individual members of the Board of Governors of the Kernwood Country Club ("the individual defendants") and E-Z-GO Company, a wholly-owned subsidiary of Textron, Inc. ("Textron") for negligence and breach of warranty. Carey seeks compensatory and punitive damages for wrongful death and loss of consortium.

I. Factual Background

Carey is a resident of Beverly, Massachusetts and is the appointed administratrix of the estate of Adam P. Carey. Kernwood Country Club ("Kernwood") is a Massachusetts Nonprofit Corporation/Organization located in Salem, Massachusetts. Textron Inc ("Textron") is a Delaware corporation with its principal place of business in Providence, Rhode Island. In 1961, Textron acquired E-Z-GO Company,

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founded in 1954 in Augusta, Georgia and the world's largest manufacturer of golf carts and utility vehicles. The individual defendants are, collectively, the 18 members of Kernwood's governing body, known as its Board of Governors. At least 12 of those individuals are Massachusetts residents.

Carey's son, Adam, was born on March 2, 1984 and was a seasonal employee at Kernwood from August 14, 2000 until his death on September 16, 2000. On that date, Adam was driving an E-Z-GO golf cart manufactured by Textron when he struck a section of a deck that was attached to a building built over a pathway. Adam suffered severe chest injuries and died approximately one hour later.

Carey filed suit in Essex Superior Court on August 27, 2003 and, on October 28, 2003, Textron filed a notice of removal to this Court pursuant to 28 U.S.C. §§ 1332 and 1441(a) and (b), asserting diversity of citizenship between the parties and an amount in controversy exceeding $75,000. Textron concurrently filed a motion to dismiss from the case the individual members of the Board without prejudice on the ground that Carey had fraudulently joined the individual defendants in this action. The individual defendants also filed a consolidated motion pursuant to Fed.R.Civ.P. 12(b)(6) and 21 seeking to be dismissed from this lawsuit. The Court declines to address the procedural question of whether Textron may move to dismiss a co-defendant because the consolidated motion of the individual defendants renders that question moot. Carey has, in turn, opposed Textron's motion to dismiss the individual defendants and has moved to remand the case to Essex Superior Court on the ground that absolute diversity is destroyed in this case by virtue of the joinder of the individual defendants. Each of those motions are now pending before the Court.

II. Legal Analysis

It is beyond debate that a non-resident defendant may remove a civil case, at law or in equity, from a state court to a United States District Court if the case presents a controversy between citizens of different states and involves the requisite jurisdictional amount. See Mills v. Allegiance Healthcare Corp., 178 F.Supp.2d 1, 4 (D.Mass.2001). To determine whether complete diversity exists, the Court must examine the plaintiff's pleading as of the time of the petition for removal. See...