Scalla v. KWS, Inc.
| Decision Date | 30 November 2018 |
| Docket Number | CIVIL ACTION NO. 18-1333 |
| Parties | ERIC SCALLA, Plaintiff, v. KWS, INC., A MEMBER OF THE THIELE GROUP, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
On December 19, 2017, Plaintiff Eric Scalla ("Plaintiff") filed a Complaint against Defendant KWS, Inc. ("Defendant" or "KWS") in the Court of Common Pleas of Philadelphia County (Doc. No. 1 at 5) seeking to recover damages for personal injuries sustained while Plaintiff was assisting in the use of an overhead crane to move excavation equipment. (Id. at 6.) Plaintiff claims that the equipment unexpectedly unhooked from the chain hook on the crane, causing the equipment to fall on him, and that the defective crane was manufactured and sold by Defendant. (Id.)
Defendant removed the action to this Court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a).1 Defendant asserts that this action was properly removed becausethe Notice of Removal was filed within thirty days of receipt of Plaintiff's Complaint by KWS, in accordance with the requirements of 28 U.S.C. §§ 1441(a)2 and 1446(b).3 (Doc. No 1-1 at 2.)
As noted, the Complaint was filed in state court on December 19, 2017. On March 26, 2018, while this case was still pending there, Plaintiff filed a Praecipe to Enter Default Judgment. Defendant claims that on March 27, 2018, it received notice of this lawsuit for the first time in an email sent by Plaintiff's counsel to Defendant, to which the Praecipe to Enter Default Judgment was attached. Two days later, Defendant removed the action to this Court believing that the removal was timely under 28 U.S.C. § 1446(b), and on April 5, 2018, Defendant filed an Answer to the Complaint in this Court. (Doc. No. 3.)
Before the Court is Plaintiff's Motion to Remand the case back to the Court of Common Pleas of Philadelphia County. (Doc. No. 7.) Plaintiff claims that Defendant had notice of this case, not on March 27, 2018, but on January 23, 2018, when service of process was made on its authorized agent, a person named Elizabeth Roberts ("Roberts"). For this reason, Plaintiff submits that removal was untimely. Defendant opposes Plaintiff's Motion to Remand (Doc. No. 8.), and on May 10, 2018, a hearing was held on the Motion. At the hearing, the Court noted that it would afford the parties the opportunity to engage in fact discovery on the issue of sufficiency of the service of process, which they did. (Doc. No. 11.) On July 30, 2018, Plaintiff filed a Supplemental Brief in Support of its Motion to Remand. (Doc. No. 16.) On August 13, 2018, Defendant filed aSupplemental Brief in Support of its Opposition to Plaintiff's Motion to Remand. (Doc. No. 25.) The Motion to Remand is now ripe for a decision. For reasons that follow, Plaintiff's Motion to Remand will be granted.
On March 30, 2016, Plaintiff was assisting in the use of an overhead crane to move an excavation ripper with a KWS F 33210 clevis cradle style grab hook,4 which he alleges was designed, manufactured, distributed, supplied, and/or sold by Defendant. (Doc. 1-1 ¶ 8.) The equipment unexpectedly unhooked from the chain hook of the machine, causing it to fall on Plaintiff. (Id. ¶ 10.) As a result, Plaintiff sustained serious and permanent injuries, including but not limited to a crush injury to his right foot, which resulted in a below-the-knee amputation, physical pain and suffering, mental and emotional anguish, loss of life's pleasures and enjoyment, loss of earnings and/or loss or diminishment of future earning capacity, past and future medical expenses, disfigurement and scarring, embarrassment and humiliation, and other physical, emotional and economic injuries. (Id. ¶ 13.) Plaintiff alleges that the incident was caused by a defective and unreasonably dangerous condition involving the chain hook. (Id. ¶ 12.)
In the Complaint, Plaintiff alleges claims of strict liability in Count I, negligence in Count II, and breach of express and/or implied warranties of merchantability and fitness for particular purpose in Count III, all stemming from the design, manufacture, distribution, supply, assembly, installment, sale, service, repair and/or maintenance of the chain hook, which Plaintiff asserts contained defective and unreasonably dangerous conditions. (Doc. 1-1 at 10-18.)
On January 23, 2018, Plaintiff served the Complaint through certified mail at Defendant's principal place of business in Tulsa, Oklahoma. (Doc. No. 7, Ex. B.)5 The envelope was addressed to "KWS, Inc., a member of the Thiele Group." (Id.) Defendant KWS has one office in the United States, which is located in Tulsa, Oklahoma. (Doc No. 16, Ex. G at 20:3-5.) Elizabeth Roberts accepted service of the Complaint by signing for it on behalf of Defendant. (Id., Ex. B, G at 30: 8-19.) On the return receipt, Ms. Roberts did not check either box to the right of the signature line, which designated "Agent" in one box and "Addressee" in the other. (Id., Ex. B.)
Roberts is KWS's Vice President of Operations and the only employee who regularly works in the Oklahoma office. (Id., Ex. G at 10: 21.) All other company employees are located in KWS's Germany offices. (Id. at 26:1-3.) Among other things, Roberts is responsible for receiving the mail on behalf of KWS at its Oklahoma location. (Id. at 19:25; Id. at 26:1-2.) This includes signing receipts for certified mail. (Id. at 24:4-8.) According to documents filed with the Office of the Secretary of State of Oklahoma, Roberts is also authorized to receive service of process on behalf of Defendant KWS.6 Neither Roberts nor anyone else at KWS took any action to respond timely to the Complaint after receiving it.
Thereafter, on March 13, 2018, Plaintiff served Defendant with a 10-day notice of intention to enter default judgment, pursuant to Pennsylvania Rule of Civil Procedure 237.1, urging Defendant to file an answer within ten days to avoid the entry of the default judgment. (Doc. No. 7, Ex. E.) Roberts also received and signed for this notice. (Id.) Again no response was forthcoming, so on March 26, 2018, Plaintiff filed a Praecipe to Enter Default Judgment, alleging that Defendant failed to respond to the Complaint within 20 days, as required. (Id., Doc. 1-1, Ex. B at 21-22.) A default judgment was then entered in favor of Plaintiff and against Defendant in the Court of Common Pleas of Philadelphia County. (Doc. No. 7, Ex. D.)
The next day, on March 27, 2018, Plaintiff's counsel, Mr. Dan Hessel, Esquire sent an email to KWS, Inc.'s company email address, listed on its website (sales@kwschain.com), notifying them that the company is in default for failure to respond to the Complaint. (Id., Ex. E.) Roberts read the email, and KWS then secured counsel in this case. (Id.) On March 28, 2018, Defendant's counsel responded to Plaintiff's email, stating that they have been retained to represent KWS in the matter and that they would respond to the Complaint that day. (Id., Ex. G.) On March 29, 2018, however, Defendant removed the action to this Court. (Doc. No. 1.)
A district court has original jurisdiction over a civil action between citizens of different states where "the matter in controversy exceeds the sum or value of $75,000." 28 U.S.C. § 1332(a)(1). Removal predicated on diversity of citizenship jurisdiction requires that the amount in controversy is satisfied and that there is "complete diversity between the parties, that is, everyplaintiff must be of diverse state citizenship from every defendant." In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006) (citation omitted).
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove "any civil action brought in a state court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441 (a). This statute must be construed against removal. Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004); see also Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d. Cir. 1990) ().
Under 28 U.S.C. § 1446(b), the petition for removal of a civil action from state court to federal court "shall be filed within thirty days after the receipt by the defendant, through service or otherwise." 28 U.S.C. § 1446(b). This thirty-day period is mandatory and cannot be extended by the Court. Typh, Inc. v. Typhoon Fence of Pennsylvania, Inc., 461 F. Supp. 994, 996 (E.D. Pa. 1978). A party seeking removal carries the burden of proving that removal is proper. Samuel-Bassett, 357 at 396 (3d Cir. 2004). As such, "a party who urges jurisdiction on a federal court bears the burden of proving that jurisdiction exists." Boyer, 913 F.2d at 111 (3d Cir. 1990).
Plaintiff moves to remand this case to the Court of Common Pleas of Philadelphia County, arguing that (1) KWS's removal was untimely; (2) service of the Complaint on KWS was proper under Pennsylvania law; and (3) KWS waived any argument that service was improper by not asserting the affirmative defense in a responsive pleading. (Doc. No. 16 at 7-22.) In response, Defendant argues that (1) Plaintiff has not met his burden of proving service was effective; (2) KWS did not waive service prior to removal; and (3) the removal deadline was not triggered until March 27, 2018, when Roberts read the email with the notice that Defendant was in default forfailure to respond to the Complaint. (Doc. No. 25 at 5-13.) The Court will address each argument in turn.
Under Pennsylvania Rule of Civil Procedure 404(2), service outside the Commonwealth of Pennsylvania may be made by mail in the manner provided by Rule 403. Rule 403 provides, in relevant part: ...
To continue reading
Request your trial