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Ciglar v. Ruby Tuesday

March 19, 2009

CHARLES CIGLAR, PLAINTIFF
v.
RUBY TUESDAY, INC., ET AL DEFENDANTS



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

Plaintiff Charles Ciglar has moved to remand this personal injury action to state court, arguing that: 1) complete diversity of the Parties is lacking; 2) all Defendants have not consented to removal; 3) the removal is untimely; and 4) Defendants have not satisfied their burden with respect to the amount in controversy. (Doc. No. 4.) Most of Plaintiff's arguments are frivolous. All are meritless. Accordingly, I deny Plaintiff's Motion.

I. BACKGROUND

Plaintiff alleges that on December 14, 2006, he slipped and fell in a puddle of water and grease inside a Ruby Tuesday restaurant located at 600 Rockhill Drive, Bensalem, Pennsylvania. (Compl. ¶ 9.) On December 12, 2008, Plaintiff filed a negligence action in the Philadelphia Common Pleas Court against the entities he believed own the restaurant: Ruby Tuesday, Inc., ORIX Wilkinson Neshaminy Venture ("the Venture"), Wilkinson Neshaminy Investment, and Wilkinson Neshaminy Investments, L.P. ("the L.P."). (Compl. ¶¶ 2-5.) Plaintiff alleged that he sustained serious injuries as a result of his fall, suffering damages "in excess of $50,000." (Compl. at 2.)

Ruby Tuesday received a copy of the Complaint on December 22, 2008. (Notice of Removal, Doc. No. 1 at ¶ 2.) The L.P. received a copy of the Complaint on December 19, 2008. (Id. at 3.) The Parties dispute whether the Venture ever received service. Finally, although Wilkinson Neshaminy Investment is listed in the case caption, the Parties apparently agree that it has not been served and is not a Party to this action.

On January 16, 2009, Ruby Tuesday and the L.P. removed to this Court. (Doc. No. 1.) On February 4, 2009, Plaintiff moved to remand. (Doc. No. 4.) Defendants responded on February 16, 2009. (Doc. No. 7.) Plaintiff filed a reply and Defendants filed a sur-reply. (Doc. Nos. 8, 9.)

II. LEGAL STANDARDS

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). Federal courts have original jurisdiction over cases between citizens of different states where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).

Diversity jurisdiction is lacking -- and removal is thus improper -- if any plaintiff and any defendant are citizens of the same state. Lincoln Property Co. v. Roche, 546 U.S. 81, 84 (2005) ("Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants."). The citizenship of fraudulently named or nominal parties must be disregarded for purposes of diversity jurisdiction, however. Bumberger v. Ins. Co. of N. Am., 952 F.2d 764, 767 (3d Cir. 1991); Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). Nominal parties are "those without a real interest in the litigation." Bumberger, 952 F.2d at 767. "A party is nominal when there is no possibility the plaintiff can establish a cause of action against him, and the defendant is not indispensable." Lopienski v. Centocor, Inc., No. 07-4519, 2008 WL 2565065, 2 (D.N.J. June 25, 2008); Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Services, 925 F.2d 866, 872 (5th Cir. 1991) ("The bottom line concern in determining a nominal party is whether the plaintiff can establish a cause of action against the nonremoving defendant in state court."); Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460 -461 (2d Cir. 1998) ("[A] plaintiff may not defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendants parties with no real connection with the controversy.").

Under the "rule of unanimity," all properly named defendants must consent to removal. See Step Plan Services, Inc. v. Koresko, 219 Fed.Appx. 249, 250 (3d Cir. 2007) (removal procedurally defective where all defendants did not consent) (citing Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985)). The consent of nominal or fraudulently named parties is not required, however. See Balazik v. County of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995) ("The unanimity rule may be disregarded where: (1) a non-joining defendant is an unknown or nominal party; or (2) where a defendant has been fraudulently joined.").

The removing party bears the burden of establishing federal jurisdiction. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990). "A party generally meets this burden by proving diversity of citizenship by a preponderance of the evidence." McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006); B. Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981) (in jurisdictional dispute, parties may submit affidavits and deposition transcripts).

The Third Circuit has cautioned that the removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." Boyer, 913 F.2d at 111.

III. DISCUSSION

A. Complete ...


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