The opinion of the court was delivered by: Conti, District Judge
MEMORANDUM OPINION AND ORDER
Pending before the court are two motions filed by Percy Hogan, Jr. ("Hogan" or "plaintiff"): 1) a motion for leave to file an amended complaint ("Mot. to Amend" (ECF No. 14)) pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, and 2) a motion to remand ("Mot. to Remand" (ECF No. 7)) pursuant to 28 U.S.C. § 1447. Also pending is a motion to dismiss ("Mot. to Dismiss" (ECF No. 4)) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by defendant Giant Eagle Incorporated ("Giant Eagle"). Hogan‟s original complaint was filed in state court and alleges various claims sounding in negligence and products liability for physical and financial injury resulting from Hogan‟s operation of a power jack allegedly manufactured by defendant The Raymond Corporation ("Raymond" and together with Giant Eagle, "defendants"), which was owned and operated by Hogan‟s employer, Giant Eagle. Hogan seeks to amend his complaint to include a claim against Giant Eagle for spoliation of evidence under Pennsylvania law and to clarify his products liability claim against Raymond and to remand this case to state court. The case was removed to federal court pursuant to 28 U.S.C. 1446(b) after Raymond filed a motion to remove on the basis that Giant Eagle was improperly joined in the case and that diversity jurisdiction exists between the two remaining parties, Raymond and Hogan. ("Def‟s Mot. to Remove" (ECF No. 1).) The issues underlying Hogan‟s motions are 1) whether Hogan can plead a spoliation of evidence claim against Giant Eagle, and 2) whether Giant Eagle is protected from suit by Hogan under the Pennsylvania Workers‟ Compensation Act ("PWCA"), 77 PA. CONS. STAT. § 481(a). Because under the circumstances presented there can be no claim for negligence implicating spoliation of evidence, the motion for remand will be denied and the motion to amend the complaint will be denied in part and Giant Eagle‟s motion to dismiss the claim against it in the original complaint will be granted.
II. FACTUAL BACKGROUND*fn1
Hogan is a truck driver employed presently and for the past fourteen years by Giant Eagle, a grocery chain based in western Pennsylvania with over 200 locations. On January 2, 2008, Hogan was delivering a load of groceries to Giant Eagle store #14 ("Store"). At the Store, plaintiff worked with Giant Eagle‟s receiver, David Palouski ("Palouski"), to open the delivery dock doors, and generally prepare the receiving area for the delivery. The two men began using two of five power jacks available at that location to move the load of grocery pallets from the truck trailer to the store. The power jack being used by Hogan began to malfunction. Palouski and Hogan dragged it out of the way. Palouski told Hogan that a technician had been in the store that day working on that power jack and three others, but that none of those jacks were working.
Hogan and Palouski began working together with the one remaining functional power jack (the "Jack"), identified as Giant Eagle property #700000047399. Hogan had never used this Jack before. In order to unload the pallets from the truck trailer, Hogan would take the Jack into the trailer, pick up a pallet of groceries, and place the pallet on the dock plate. Palouski would operate the Jack to move the pallet from the dock plate into the Store. The final two pallets in the trailer were entangled. Hogan attempted to separate them using the Jack. During this maneuver, Hogan put the Jack in reverse. While the Jack was reversing, Hogan attempted to stop it using the handle brakes and the emergency reverse switch. Both attempts failed to stop the Jack and it continued to move backward until Hogan was crushed between the Jack and the trailer wall. Palouski observed the accident as it happened.
As a result of the accident, Hogan suffered permanent injuries to his groin, hip, inner thigh, pelvis, genitalia, legs and back. Hogan alleges these injuries caused pain and intermittent swelling in his leg, pain in his groin, pelvis, lower back and spine, and erectile dysfunction. Hogan asserts these injuries affect his ability to work. Prior to the accident he worked up to eighty hours per week and earned more than $80,000 per year, but now he is unable to work more than forty hours per week.
Hogan claims (and Raymond denies) that the Jack was designed, manufactured, and sold by Raymond, a power equipment manufacturer. Hogan maintains the Jack was purchased by Giant Eagle. Hogan contends that Raymond sells Giant Eagle hundreds of power jacks each year for use in its stores and service and maintenance contracts for its power jacks, but no service contract was in place for the Jack. In the complaint, Hogan suggests that management at the Store knew that the Jack did not stop under certain circumstances, could not be safely operated in tight spaces, and caused other accidents and broken bones prior to this accident.
Following the accident, the Jack remained in the Store until on or about February 2, 2010, at which time it was traded to Yale Industrial Trucks of Pittsburgh. Giant Eagle recovered the Jack on August 23, 2010. The Jack is now under Giant Eagle‟s control at the O.K. Grocery Company warehouse.*fn2
On December 30, 2009, plaintiff filed the civil complaint against defendants in the Court of Common Pleas of Allegheny County, PA at G.D. No 09-024157. Service was complete on June 3, 2010. The complaint alleges various claims sounding in negligence and products liability. On June 23, 2010, Raymond removed this case to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1441, 1446(b). In the notice of removal ("Def.‟s Notice of Removal" (ECF No. 1)), Raymond asserts the joinder of Giant Eagle is improper because the exclusivity provision of the PWCA precludes an employee from suing his employer. Raymond alleges that once the claim against Giant Eagle is dismissed, the diversity requirements for removal to this court under 28 U.S.C. § 1332(a) are satisfied because plaintiff is a citizen of the Commonwealth of Pennsylvania and Raymond is a corporation existing under the laws of the State of New York. (Def.‟s Notice of Removal (ECF No. 1) at 4.) On July 1, 2010, Raymond filed its answer to the complaint (ECF No. 3), generally denying all claims and setting forth several affirmative defenses.
On July 9, 2010, Giant Eagle filed a motion to dismiss ("Mot. to Dismiss" (ECF No. 4)) and brief in support ("Def. Giant Eagle‟s Br. in Supp. of Mot. to Dismiss" (ECF No. 5)), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim against Giant Eagle upon which relief may be granted. Giant Eagle argues that plaintiff‟s injuries arose out of and in the course of his employment with Giant Eagle and therefore his negligence claim is barred by the exclusivity provisions of the PWCA. (Def. Giant Eagle‟s Br. in Supp. of Mot. to Dismiss (ECF No. 5) at 2.) On August 18, 2010, plaintiff responded to Giant Eagle‟s motion to dismiss by alleging that he has a valid spoliation claim against Giant Eagle and the PWCA does not bar spoliation claims against employers. ("Resp. to Mot. to Dismiss" (ECF No. 15).)
On July 27, 2010, plaintiff filed the motion to remand asserting: 1) the motion to remand is timely because service of Raymond‟s notice of removal was irregular; and 2) Raymond failed to meet the burden for establishing a fraudulent joinder. On August 2, 2010, plaintiff filed a supplement to the motion to remand. ("Pl.‟s Supp. to Mot. To Remand" (ECF No. 10).) Plaintiff attached to the supplement three exhibits and an affidavit from a Giant Eagle employee regarding: 1) the removal of the Jack, and 2) knowledge of the Jack‟s brake problems. (Pl.‟s Supp. to Mot. To Remand (ECF No. 10-1) ("Lear Aff.", July 22, 2010) at 1.) In the supplement, plaintiff requests sanctions against Giant Eagle for spoliation of evidence and asserts a claim against Raymond under the malfunction theory of liability. On August 16, 2010, Raymond filed a response in opposition to plaintiff‟s motion to remand. ("Def. Raymond‟s Resp." (ECF No. 12).) On August 17, 2010, Giant Eagle filed a response in opposition to plaintiff‟s motion to remand (ECF No. 13). Raymond and Giant Eagle argue, inter alia: 1) plaintiff‟s motion is untimely, 2) plaintiff never pled a cause of action for spoliation, and 3) Pennsylvania courts do not recognize an independent cause of action for spoliation of evidence and therefore Giant Eagle is not properly joined and cannot be held liable. Defendants argue that plaintiff‟s sole remedy against Giant Eagle is under the PWCA and removal of the suit between plaintiff and Raymond to this court is proper. ("Def. Raymond‟s Resp." (ECF No. 12) at 2-9.)
On August 18, 2010, plaintiff filed the motion to amend his complaint (ECF No. 14). Plaintiff‟s proposed amended complaint alleges a claim against Giant Eagle under the theory of spoliation of evidence, as a result of Giant Eagle‟s actions in removing, destroying, or compromising the Jack. Plaintiff seeks to clarify his claim against Raymond under the malfunction theory of liability, under which a plaintiff can establish a product liability case without the defective equipment.
On August 26, 2010, Giant Eagle filed a motion for leave to file supplemental response in opposition to plaintiff‟s motion to remand ("Mot. for Leave to File Supp. Resp. in Opp. To Pl.‟s Mot. to Remand" (ECF No. 16)) in order to advise the court and the parties that the Jack was presently located. On August 27, 2010, Raymond filed a motion to join Giant Eagle‟s motion for leave to file supplemental response (ECF No. 17), along with a supplemental response in opposition to plaintiff‟s motion to remand. Id. On August 27, 2010, the court granted Giant Eagle‟s motion for leave to file a supplemental response and Giant Eagle filed the supplemental response on August 30, 2010 (ECF No. 19). Raymond joined that supplemental response on August 30, 2010 (ECF No. 20).
On August 27, 2010, Raymond responded to plaintiff‟s motion to amend (ECF No. 18) claiming that plaintiff did not assert the facts necessary to show a plausible claim for spoliation because: 1) the amended complaint does not allege plaintiff requested Giant Eagle to maintain or preserve the Jack, and 2) Giant Eagle has located the Jack. Raymond argues that Pennsylvania does not recognize an independent cause of action for spoliation. On September 2, 2010, the court granted Giant Eagle‟s motion to join Raymond‟s response to plaintiff‟s Motion for Leave to Amend (ECF No. 22).
A.Motion for Leave to Amend Complaint and Motion to Dismiss
Generally, leave to amend a complaint will not be granted if the amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (reversing district court for failing to grant plaintiff right to amend when the district court did not specifically find that granting leave to amend would be inequitable or futile). Permitting amendment is consistent with Rule 15(a) of the Federal Rules of Civil Procedure, which provides "leave [to amend] shall be freely given when justice so requires." FED. R. CIV. P. 15(a). A court, however, may decide to deny leave to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and futility. Swift v. McKeesport Housing Auth., 726 F.Supp.2d 559, 567 (W.D.Pa. 2010)(citing In re Burlington Coat Factory Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).
The standard of legal sufficiency for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) determines whether a proposed amendment would be futile. Burlington, 114 F. 3d at 1434. In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. V. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to ...