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Ariosto Zuniga, et al v. Riverview Residential Partners

January 24, 2011


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


On October 2, 2007, Ariosto Zuniga, a citizen of Costa Rica, and Juraci Sobreira, a citizen of Brazil, were performing aluminum siding work at a residential construction project known as the Lofts at Valley Forge. While erecting a scaffold system, the two plaintiffs were lifting a sixty-foot pole which fell backwards away from the home construction, and contacted an overhead PECO distribution line. As a result, both men suffered severe electrical burns and were taken by helicopter to the Burn Intensive Care Unit at Temple University Hospital in Philadelphia.

The plaintiffs filed two actions in the Court of Common Pleas of Philadelphia County alleging purely state law claims against several defendants . The men claimed that as a direct and proximate result of the conduct of the defendants, they have suffered and will continue to suffer pain, scarring, disfigurement, loss of independence, mental anguish, humiliation, embarrassment, fear, loss of well being, inability to enjoy the normal pleasures of life, and other intangible losses. Lisette Gomez, Plaintiff Zuniga's wife,*fn1 joined in the actions alleging a loss of consortium against all of the defendants.

The defendants removed the cases here alleging that removal was proper due to this court's alienage jurisdiction. See 28 U.S.C. § 1332(a)(2), which provides:

Federal district courts have original subject matter jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . (2) citizens of a State and citizens or subjects of a foreign state.

It is undisputed that the matter in controversy in this case exceeds the sum or value of $75,000, and that two of the three plaintiffs are citizens of foreign states. Thus, this court has original jurisdiction over this action. Congress has not mandated, however, that all civil actions over which a district court has original jurisdiction be removed from state court. In fact, Title 28 of the United States Code, Section 1441(a) uses discretionary language:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. (Emphasis added).

The plaintiffs filed a timely motion to remand the matter to the state court claiming that 28 U.S.C. § 1441(b) precludes removal where any of the defendants are citizens of the State in which such action was brought. Unlike its preceding subsection, this subsection 's language is not discretionary:

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable onlyif none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (Emphasis added). The first sentence of this subsection is inapplicable here because while this court has original jurisdiction, it is undisputed that the claims brought in this case do not arise under the Constitution, treaties, or laws of the United States. On the other hand, the second sentence refers to all other actions over which the court has original jurisdiction but, like this case, do not arise under a federal question. Because four of the seven defendants have admitted to being citizens of Pennsylvania, the state in which this action was brought, the second sentence mandates the case's remand to the state court. Accordingly, I will grant the plaintiffs' motion to remand.

The plaintiffs have also filed a motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure, claiming that the defendants' removal of this case was frivolous, and that sanctions are necessary to deter the filing of other frivolous pleadings in the future. Rule 11 provides for the imposition of sanctions upon an attorney or party for the filing of a claim or motion that is "patently unmeritorious or frivolous." Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). By presenting to the court a pleading, written motion, or other paper, an attorney certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based ...

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