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C.S., A Minor, ) By and Through T. Eric Surman ) and v. Target Corporation

March 16, 2011

C.S., A MINOR, ) BY AND THROUGH T. ERIC SURMAN ) AND LAURA SURMAN, HER PARENTS ) AND NATURAL GUARDIANS, AND T. ERIC SURMAN AND ) LAURA SURMAN IN THEIR OWN RIGHT, *FN1 PLAINTIFFS,
v.
TARGET CORPORATION, AND ) GLORIA SURMAN, DEFENDANTS.*FN2



The opinion of the court was delivered by: Nora Barry Fischer U.S. District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Once again, Defendant Target Corporation ("Defendant" or "Target") seeks to remove this case from the Court of Common Pleas of Allegheny County based on the doctrine of fraudulent joinder. (Docket No. 1). Target contends that Plaintiffs C.S., Laura and Eric Surman have improperly joined Defendants Gloria Surman, Donna Galetich, John Doe 1 and John Doe 2 in order to defeat this Court‟s diversity jurisdiction. (Docket Nos. 1, 8, 9, 12, 15). Plaintiffs have filed a motion requesting that the case be remanded back to the Court of Common Pleas. (Docket No. 7). Plaintiffs‟ Motion has been exhaustively briefed and oral argument was heard on March 10, 2011. (See Docket Nos. 1, 7, 8, 9, 10, 12, 13, 15). Upon consideration of the parties‟ positions, and for the following reasons, Plaintiffs‟ Motion [7] is GRANTED and this matter is REMANDED to the Court of Common Pleas.

II. BACKGROUND

Plaintiffs C.S., Laura and Eric Surman are all citizens of Pennsylvania. (Docket No. 1 at ¶ 7). Defendants Gloria Surman, Donna Gaelitch, John Doe 1 and John Doe 2 are also citizens of Pennsylvania. (Docket No. 7-1 at ¶ 3). Target is a citizen of Minnesota because it is a Minnesota corporation with its principal place of business in Minnesota. (Id. at ¶ 8). The parties are not completely diverse, thereby precluding this Court‟s exercise of jurisdiction based on diversity of the parties under 28 U.S.C. § 1332(a), absent proof of fraudulent joinder of the non-diverse defendants.*fn3 See 28 U.S.C. § 1332(a) (district courts "have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and, and is between ... citizens of different States."). Plaintiffs allege that C.S., a minor, was injured by a defective brown rectangular trunk manufactured and sold to them by Target.

This is Target‟s third attempt to remove the present products liability/negligence case to federal court. (See CA 10-461, Docket No. 1; CA 10-784, Docket No. 1; CA 11-244, Docket No. 1). The first removed action was voluntarily dismissed by Plaintiffs in favor of another state action arising from the same incident. (CA 10-461). The second action added a claim against Defendant Gloria Surman, C.S.‟s grandmother and frequent babysitter, alleging that her negligence was a proximate cause of C.S.‟s injuries. (CA 10-784). Target attempted to remove the second action to this Court; Plaintiffs sought a remand. (CA 10-461, Docket Nos. 1, 4). This Court summarily granted Plaintiff‟s motion and remanded the case, holding that "this Court lacks subject matter jurisdiction over this case under 28 U.S.C. § 1332 because complete diversity does not exist between the parties and Target has not met its burden to demonstrate that Defendant Gloria Surman has been fraudulently joined, see e.g., In re Briscoe, 448 F.3d 201, 215-16 (3d Cir. 2006); Batoff v. State Farm Ins. Co., 977 F.2d 848 (3d Cir. 1992); Boyer v. Snap-on Tools Corp., 913 F.2d 108 (3d Cir. 1990); Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)." (CA 10-784, Docket No. 13).

Shortly after remand, attorneys Maury Nusbaum, Esq. and Craig O‟Conner, Esq. entered their appearances on behalf of Gloria Surman in state court. An Amended Complaint was filed by Plaintiffs on September 15, 2010 and Gloria Surman filed an Answer to same on October 28, 2010. (Docket Nos. 1, 1-4, 1-5). Plaintiffs continue to allege that Gloria Surman was negligent; she denies liability and has asserted a cross-claim against Target. (Id.). Discovery including depositions ensued. The depositions of Laura, Eric and Gloria Surman took place on February 1, and 2, 2011. (Docket Nos. 12-1, 12-2, 12-3). Gloria Surman and her attorneys were present for all of the depositions. (Id.). Subsequently, Plaintiffs filed their Second Amended Complaint. Gloria Surman remains a party to the litigation. In fact, the claim against her in Plaintiffs‟ Amended Complaint has been re-asserted in Plaintiffs‟ Second Amended Complaint, which remains unchallenged in state court. (Docket No. 7-1; see also G.D. 10-009693).

In its Notice of Removal, subsequent filings, and argument from counsel at the motion hearing, Target contends that the facts presented during the recent depositions demonstrate that Gloria Surman has been fraudulently joined. (Docket No. 1). The Plaintiffs once again dispute this allegation.

Plaintiffs‟ Second Amended Complaint also adds a negligence claim against three additional Defendants, who are alleged to be Pennsylvania citizens: Donna Galetich, store manager of the Cranberry Target store; John Doe 1, manager of the Toy Department of the Cranberry Target store; and John Doe 2, manager of the Storage and Organization Department of the Cranberry Target store. (Docket No. 7-1). Plaintiffs maintain that these individuals breached a duty of care to Plaintiffs through their marketing of the brown rectangular truck in store displays very near the children‟s toy section although the trunk was not suitable for use by children. (Id.). They claim that the location of the display in the store caused Laura Surman to purchase the trunk and use it to store her children‟s toys. (Id.).

III. LEGAL STANDARD

Ordinarily, a defendant may remove a civil action from state court into federal court only when complete diversity of citizenship exists between the parties and the amount in controversyrequirement has been met. See 28 U.S.C. §§ 1332(a), 1441; In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006). However, removal of a civil action from state court into federal court can be predicated on fraudulent joinder. In re Briscoe, 448 F.3d at 215-16. "If the district court determines that the joinder was "fraudulent‟ . . . the court can "disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over the case, dismiss the nondiverse defendants, and thereby retain jurisdiction.‟" Id. at 216 (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).

A defendant is fraudulently joined if "there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment." Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985). In order to assert a colorable claim against a non-diverse defendant, the claims cannot be "wholly insubstantial and frivolous." Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d. Cir. 1992). But, ""[i]f there is even a possibility that a state court would find that the complaint states a cause of action against [the non-diverse defendant], 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) (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983)).

In making this determination, "[a] district court must resolve all contested issues of substantive fact in favor of the plaintiff and must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." Boyer, 913 F.2d at 111. A district court may look beyond the pleadings to determine if jurisdiction is proper but cannot make a decision about the merits of the case because such a decision would "convert[] its jurisdictional inquiry into a motion to dismiss," or a motion for summary judgment. Id. at 111-12. Furthermore, a district court must not consider a plaintiff=s motive for joining a defendant. Abels, 770 F.2d at 32.

In order to determine whether adefendant was fraudulently joined, "[a] district court must "focus on the plaintiff=s complaint at the time the petition for removal was filed. In so ruling, the district court must assume as true all factual allegations of the complaint.‟" Id. at 851-52 (quoting Steel Valley Author. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)). In order to convince this Court that a plaintiff has fraudulently joined a non-diverse party, the defendant must overcome the "heavy burden of persuasion" placed upon defendants. Steel Valley Author. 809 F.2d at 1012. "It is logical that [a defendant] should have ...


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