IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
August 21, 2009
ROBERT BROOKS, ET AL.
HARLEY-DAVIDSON MOTOR COMPANY, ET AL.
The opinion of the court was delivered by: Ludwig, J.
This is defendants' second attempt to effectuate removal on grounds of diversity jurisdiction.*fn1 For the reasons set forth below, plaintiffs' motion to remand must again be granted.
This is a personal injury action based on negligence and products liability arising from a motorcycle accident on August 10, 2006. Complaint, ¶ 30. On August 18, 2008, service of plaintiffs' complaint was made on defendants, and on September 8, 2008, defendants Harley-Davidson and Fred Gates had the action removed on the ground of diversity jurisdiction. Plaintiffs move to remand based on their assertion of claims against a resident of the forum state, and against non-diverse parties. Defendants contend that the forum resident and non-diverse parties were fraudulently joined, and therefore, their citizenship should be disregarded.*fn2 Because at this juncture, the joinders appear not to be fraudulent, there is no diversity jurisdiction, and the action will be remanded.*fn3
According to the complaint,*fn4 plaintiffs Robert Brooks and Kathryn Brooks are citizens of Maryland, and their adult son Kenneth, is a citizen of Delaware. Defendants are Harley-Davidson Motor Company Group, Inc., a Wisconsin corporation with its principal place of business in Wisconsin; Fred Gates is vice-president and general manager at HarleyDavidson's York, Pennsylvania plant, and a citizen of Pennsylvania; Kuser Enterprises, Inc. is a New Jersey corporation with its principal place of business in New Jersey; Mike's Famous Harley-Davidson, Inc. is a Delaware corporation with its principal place of business in Maryland;*fn5 Harley-Davidson of Annapolis is a Maryland corporation with its principal place of business in Maryland; Rommel Cycles, LLC, is a Maryland corporation with its principal place of business in Maryland; and Dave Rommel is a Maryland citizen. Complaint, ¶¶ 1-29.
The complaint asserts the following claims, based on injuries resulting from the negligent design, manufacture, sale, distribution, service and repair of Robert Brooks' motorcycle, and the sale of a similarly defective motorcycle to Kathryn Brooks:
(1) negligence (Counts I, V, X);
(2) strict products liability (Count II);
(3) breach of warranty (Count III);
(4) violation of Pennsylvania's UTPCPL (Counts IV, VI, IX);
(5) joint enterprise and alter ego claims against Mike's Famous and the Rommel defendants (Counts VII and VIII); and
(6) loss of consortium claims on behalf of both Kathryn and the Brooks' adult son Kenneth (Count XI).
According to plaintiffs, the presence of Fred Gates, a Pennsylvania citizen, renders removal improper under 28 U.S.C. § 1441(b). Remand motion, ¶ 47. Plaintiffs' negligence claim against Gates asserts that as general manager of harley-Davidson's York plant, Gates was actively involved in the manufacture of the motorcycles in question. Gates' affidavit stated that he had no role in the design, manufacture, assembly, inspection, testing, packaging or distribution of the motorcycle at issue. Affidavit of Fred Gates, ¶ 4, Exhibit "B" to defendants' memorandum in opposition.
Under Pennsylvania law, "a corporate officer can be held liable for 'misfeasance,' i.e., the improper performance of an act, but not for 'mere nonfeasance,' i.e., the omission of an act which a person ought to do." Brindley v. Woodland Village Restaurant, Inc., 652 A.2d 865, 868 (Pa. Super. 1995). Defendants' position is that Gates' affidavit establishes that he could be charged, at most, with nonfeasance, which is not actionable conduct. Plaintiffs respond, however, that Gates' affidavit is not exhaustive as to his conduct - conduct that may have been active, and, therefore, considered misfeasance under Pennsylvania law .*fn6 "If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991).
Because the complaint asserts a claim against Gates cognizable under Pennsylvania law, which may be supported by evidence obtained in the course of discovery, the claim is colorable. Gates, therefore, renders removal improper.
A further fraudulent joinder issue is the loss of consortium claim asserted by Robert and Kathryn Brooks' adult son Kenneth, a Delaware citizen, against defendants, including Mike's Famous Harley-Davidson, which is also a citizen of Delaware. Defendants cite cases holding that a loss of consortium claim by an adult child has not been recognized by Pennsylvania, Delaware or Wisconsin: Schroeder v. Ear, Nose and Throat Assoc. of Lehigh Valley, Inc., 557 A.2d 21 (Pa. Super. 1998) (loss of consortium claim is derivative of spouse's substantive claim); Dep't. of Public Welfare v. Schultz, 855 A.2d 753, 755 (Pa. 2004) (parent cannot bring loss of consortium claim for death of adult child); Lacy v. G.D. Searle & Co., 484 A.2d 527, 532 (Del. Super. 1984) (stating that non-spouse family members must satisfy 'zone of danger' test to recover in negligence cases); Wells v. Mount Sinai Medical Center, 515 N.W.2d 705, 709 (Wisc. 1994) (declining to recognize parent's right to loss of consortium claim arising from injury to adult child). Unless Kenneth has an actionable claim, his citizenship for diversity purposes should be disregarded.
On the other hand, according to plaintiffs, six states have recognized an adult child's cause of action: Rolf v. Tri-State Motor Transit Co., 745 N.E.2d 424, 427 (Ohio 2001); Nelson v. Cour Seasons Nursing Center, 934 P.2d 1104, 1105 (Okla. App. 1996); Reagan v. Vaughn, 368 N.W.2d 141 (Iowa 1985); Cleland v. Reynolds Metals Co., 691 P.2d 190, 195 (Wash. 1984); Villareal v. State Dept. of Transp., 774 P.2d 213 (Ariz 1989). Plaintiffs hypothesize that Pennsylvania, Wisconsin and Delaware may revisit this issue. See, e.g., Theama by Bichler v. City of Kenosha, 344 N.W.2d 513, 520-21 (Wis. 1984) (recognizing "that the rule denying recovery for the loss of society and companionship was created by the courts and not the legislature, and it is, therefore, as much our duty as the legislature's to change that law if it no longer meets society's needs. . . . We hold that a minor child may recover for the loss of care, society, companionship, protection, training and guidance of a parent due to the negligent acts of a third party.")
"The inquiry into the validity of a complaint triggered by a motion to dismiss under Rule 12(b)(6) is more searching than that permissible when a party makes a claim of fraudulent joinder. . . . [Moreover,] [a] claim which can be dismissed only after an intricate analysis of state law is not so wholly insubstantial and frivolous that it may be disregarded for purposes of diversity jurisdiction." Batoff, 977 F.2d at 853. While it appears unlikely that Pennsylvania, Delaware or Wisconsin courts will recognize an adult child's claim for loss of consortium, it cannot be said, given other states' recognition of the claim, that plaintiffs' argument is "wholly insubstantial and frivolous." Accordingly, the presence of non-diverse parties cannot be disregarded for purposes of establishing diversity jurisdiction, and the action must be remanded.*fn7
Edmund V. Ludwig, J.