Lee v. Merhige, CIVIL ACTION NO. 20-CV-2070

Decision Date31 July 2020
Docket NumberCIVIL ACTION NO. 20-CV-2070
CourtU.S. District Court — Eastern District of Pennsylvania
PartiesCHAKA LEE: Plaintiff v. SALEM MERHIGE, VEL-MAC FOODS, INC., VELTRI, INC., and PENSKE LEASING & RENTAL CO., Defendants v. VERONICA PAULHILL-KELLY, Additional Defendant VERONICA PAULHILL-KELLY v. SALEM MERHIGE, VEL-MAC FOODS, INC., VELTRI, INC., and PENSKE LEASING & RENTAL CO.
MEMORANDUM AND ORDER

JOYNER, J.

Before the Court are Plaintiff's Motion to Remand (Doc. No. 3), Defendants' Response in Opposition (Doc. No. 4), and Plaintiff's sur-reply in further support thereof (Doc. No. 5). For the following reasons, the Court will GRANT the Plaintiff's Motion to Remand and direct that this case be returned to the Court of Common Pleas of Philadelphia County.

I. Factual and Procedural Background

Plaintiffs, Chaka J. Lee (Hereinafter, "Lee") and Veronica Paulhill-Kelly ("Paulhill-Kelly"), were the passenger and operator, respectively, of a motor vehicle involved in an accident in the Commonwealth of Pennsylvania, City and County of Philadelphia on August 2, 2017. (Lee Compl. ¶s 6, 9). Both Plaintiffs are residents of Pennsylvania. (Compl. ¶ 1). Defendant Saleem Merhige ("Merhige"), a citizen of New Jersey, operated the other vehicle involved in the accident and was acting as the agent, servant, workman and/or employee of Defendant, Vel-Mac Foods, Inc. ("Vel-Mac) and/or Veltri, Inc. ("Veltri") at the time of the accident. (Compl. ¶s 2, 7 and Def's Answer thereto). Vel-Mac is a New Jersey corporation with its principal place of business in Fairfield, NJ and Veltri is a Pennsylvania corporation with its place of business in Levittown, PA. (Compl. ¶s 3-4). Penske Leasing & Rental Co. ("Penske") owned the vehicle operated by Merhige involved in the accident. Compl. ¶ 8. Penske is a Pennsylvania limited partnership located in Reading, PA. (Compl. ¶ 5)1.

On May 3, 2019, both Lee and Paulhill-Kelly filed separate Complaints in the Court of Common Pleas of Philadelphia County. Both Complaints allege negligence in Merhige's operation of the vehicle, negligent entrustment on the part of Vel-Mac and/or Veltri and Defendant Penske's negligent failure to impose practices, procedures and conditions on Vel-Mac and/or Veltri and to verify Merhige's qualifications to properly and safely operate the leased vehicle. (Compl. ¶ 23). Plaintiffs' complaints describe injuries sustained to the head, bones, tissues, muscles, nerves, brain, etc. resulting in both physical and mental pain and suffering as a direct result of the aforementioned accident. (Compl. ¶ 16). The injuries alleged have resulted in a loss of income and earning capacity as well as medical expenses that will continue indefinitely. (Compl. ¶s 17-21). On September 6, 2019, the State Court consolidated both matters. (Consolidation Order, Ex. "E"). On July 5, 2019, Defendants Merhige, Vel-Mac and Penske, filed a Joinder Complaint adding Paulhill-Kelly as an Additional Defendant to the then-consolidated action. (Joinder Complaint, Ex. "D"). On April 29, 2020, Defendants, Merhige and Vel-Mac, filed a Noticeof Removal to the United States District Court for the Eastern District of Pennsylvania on the basis of diversity jurisdiction, alleging as the grounds therefor that it had been discovered just the preceding day during depositions of several of the parties that Penske's only role was the leasing of the truck involved in the accident and that all counsel had agreed to voluntarily dismiss Penske. Thus, Defendants assert, the matter was properly removed at that time, as the citizenship of the parties thereby became completely diverse. (Notice of Removal, Doc. No. 1; Stipulation to Dismiss, Ex. "F"). In turn, Plaintiffs filed the instant Motion to Remand on May 5, 2020, in which they contest the existence of complete diversity. The Stipulation to Dismiss, while not signed by each party, is accompanied by emails from each party agreeing to dismiss Penske from the claim. (Ex. "H"). No documentation available to the court reveals that the stipulation was ever submitted to the Court or that an order was signed granting the dismissal.

Standards Governing Motions to Remand

The threshold principles governing remands from federal to state courts are largely outlined in the United States Code. Under 28 U.S.C. § 1441: "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed". Original jurisdiction exists over civil actions where the amount in controversyexceeds $75,000 and complete diversity of citizenship exists between all plaintiffs and all defendants. 28 U.S.C. § 1332. "Complete diversity requires that, in cases with multiple plaintiffs or multiple defendants, no plaintiff be a citizen of the same state as any defendant." Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). If the original pleading is not removable, "a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may be first ascertained that the case is one which has become removable." 28 U.S.C. §1446(b)(3). However, a case may not be removed for diversity more than one year after commencement of the action, unless the district court finds that a plaintiff has acted in bad faith in order to prevent a defendant from removing the action. 28 U.S.C. §1446 (c)(1).

In evaluating remand motions, "it is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed.2d 391 (1994). (1994)(citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184, 56 S. Ct. 780, 80 L. Ed. 1135 (1936)). This means that the removal statutes are to be strictly construedagainst removal and that all doubts as to federal jurisdiction are to be resolved in favor of remand. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). However, in ruling on a motion to remand, courts are permitted to consider documents outside of the complaint to make "certain factual findings" to guide their decisions. Erie Insurance Exchange v. Greenwich Insurance Co., Civ. A. No. 16-00015, 2016 U.S. Dist. LEXIS 481802016, at *2, WL 1404162 at *2 (E.D. Pa. April 11, 2016). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. §1447(c).

In addition to the jurisdictional pre-requisite of complete diversity, a federal district court's removal jurisdiction is further cabined by the so-called "forum defendant rule," outlined in 28 U.S.C. §1441(b)(2) which provides that "a civil action ... may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought".

Discussion

Plaintiffs move to remand this case to Pennsylvania state court pursuant to 28 U.S.C §1441(b), 28 U.S.C. §1447(c) and 28 U.S.C. §1446. First, Plaintiffs assert that Defendant Penske and Additional Defendant Paulhill-Kelly defeat diversity by sharing Pennsylvania citizenship with Plaintiff Lee and theforum. Second, Plaintiffs reason that the removal was effectuated prior to the official dismissal of defendant Penske, and it still remains a defendant in the matter. Finally, Plaintiffs submit that the defendants are prevented from removing the case in the future because the one-year time limit has run out for removal on the basis of diversity.

In response, Defendants argue that due to the voluntary dismissal of Defendant Penske and the duty of the court to disregard the citizenship of Additional Defendant Paulhill-Kelly, there is complete diversity such that the case may properly be heard in federal court. In order to address the arguments made by Plaintiffs and Defendants regarding the existence of diversity jurisdiction, we first must determine who is considered a "defendant" in the matter impacting diversity. Thereafter, we consider the timeliness of removal and procedure moving forward.

1. Who is a "Defendant"?

For the purpose of removal, the federal law determines who is plaintiff and who is defendant; it is a question of construction of the federal statute on removal, to wit, 28 U.S.C. Section 1441, and not state statute. Chicago, Rock Island & Pacific Railroad Co. v. Stude, 346 U.S. 574, 580, 74 S. Ct. 290, 294, 98 L. Ed. 317 (1954). "The determination of whether the removing defendants have satisfied their burden ofestablishing the complete diversity required by 28 U.S.C. Section 1332 ... hinges upon the identities of the defendants as pleaded in Plaintiff's Complaint." CNX Gas Co., L.L.C. v. Lloyd's of London, 410 F.Supp.3d 746, 751 (W.D. Pa. 2019). Most rules of citizenship are relatively straightforward insofar as "[a] natural person is deemed to be a citizen of the state where he is domiciled" and "[a] corporation is a citizen both of the state where it is incorporated and of the state where it has its principal place of business." Erie Insurance Exchange v. Greenwich Insurance Co., 2016 WL 1404162 at *4. At all times and at all stages of the litigation, the burden of persuasion for establishing diversity jurisdiction and of showing that the case is properly before the federal court remains on the party asserting it. Hertz Corp. v. Friend, 559 U.S. 77, 96-97, 130 S. Ct. 1181, 1194, 175 L. Ed.2d 1029 (2010)(citing Kokkonen and McNutt, both supra); Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); Fahy v. Certain Underwriters at Lloyd's of London, Civ. A. No. 19-3758, 2019 U.S. Dist. LEXIS 203894 at *3, 2019 WL 6310217 (Nov. 25, 2019).

As previously mentioned, the strict scrutiny of 28 U.S.C. §1332 requires that in addition to diverse citizenship, no defendant be a citizen of the forum state for the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT