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Cathy Sue and Larry Tygart v. Am Resorts

September 22, 2011

CATHY SUE AND LARRY TYGART, PLAINTIFF,
v.
AM RESORTS, LLC, ATKINSON & MULLEN
TRAVEL II, LLC, ATKINSON & MULLEN
TRAVEL, INC., APPLE VACATIONS, AND
SECRETS SILVERSANDS RIVIERA CANCUN, DEFENDANTS.



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

MEMORANDUM

Currently pending before the Court are: (1) Defendants AM Resorts, LLC, Atkinson & Mullen Travel II, LLC, Atkinson & Mullen Travel, Inc., and Apple Vacations's (collectively "Defendants") Motion for Summary Judgment; and (2) Plaintiffs Cathy Sue and Larry Tygart's (collectively "Plaintiffs") Motion to Remand. For the following reasons, Defendants' Motion for Summary Judgment is granted and Plaintiffs' Motion to Remand is denied.

I. FACTUAL AND PROCEDURAL HISTORY

On May 6, 2010, Plaintiffs were staying at the Secrets Silversands Riviera Cancun hotel ("Silversands") in Mexico. (Compl. ¶¶ 7, 22-23.) According to the facts alleged in the Complaint, the lighting conditions in Plaintiffs' room were poor, and Plaintiff Cathy Sue Tygart had difficulty seeing when she entered the room. (Id. ¶¶ 24-25.) As she walked across the floor, she slipped on a "substance comprised of water and cleaning solution," which caused her to fall and fracture her pelvis. (Id. ¶¶ 25-27.) The Silversands required Mrs. Tygart to pay $100 before calling for medical assistance. (Id. ¶ 28.) When a doctor arrived, he performed no services and told her to go to a hospital. (Id. ¶ 29.) Mrs. Tygart then flew back to her home state of Colorado where she was treated for her injuries. (Id. ¶ 30.)

On April 27, 2011, Plaintiffs filed a Complaint in the Court of Common Pleas of Philadelphia County. The Complaint alleges that Defendants AM Resorts, LLC, Atkinson & Mullen Travel II, LLC, Atkinson & Mullen Travel, Inc., and Apple Vacations owned, maintained, and/or controlled Defendant Silversands. (Id. ¶¶ 13-16.) Plaintiffs claim that all Defendants acted negligently and/or recklessly by permitting a dangerous condition to exist, failing to detect and remedy that condition, failing to have appropriate procedures to inspect the premises, failing to warn business invitees that the floor was wet and/or slippery, failing to hire competent staff, and failing to have Mrs. Tygart airlifted from the Silversands hotel. (Id. ¶¶ 32-61.) Plaintiffs claim that the negligence and/or recklessness of all Defendants caused Mrs. Tygart's injuries. (Id.) Finally, Plaintiff Larry Tygart, Mrs. Tygart's husband, has brought a loss of consortium claim against all Defendants. (Id. ¶¶ 62-64.)

On June 8, 2011, Defendant Silversands filed a Notice of Removal. It claimed that diversity of citizenship existed pursuant to 28 U.S.C. § 1332(a) and removal was proper under 28 U.S.C. § 1441(b) by virtue of the fact that it was a citizen of Mexico, Plaintiffs were citizens of Colorado, and the remaining Defendants -- all citizens of Pennsylvania -- were fraudulently joined. (Def. Silversands's Notice of Removal ¶¶ 3-13.) After removing the case to this Court, Defendant Silversands filed on July 5, 2011 a Motion to Dismiss for Improper Service and Lack of Personal Jurisdiction. Plaintiffs did not oppose that Motion, which the Court granted on July 20, 2011.

On July 11, 2011, Defendants Apple Vacations, Atkinson & Mullen Travel II, LLC, and Atkinson & Mullen Travel, Inc. filed a Motion for Summary Judgment, which was joined by Defendant AM Resorts, LLC on August 1, 2011. On July 26, 2011, the parties stipulated that Plaintiff would have until August 12, 2011 to file an answer to the Motion for Summary Judgment. As of the date of this Memorandum and Order, Plaintiffs have not responded to Defendants' Motion for Summary Judgment.

On August 3, 2011, Plaintiffs filed a Motion to Remand, and Defendants Apple Vacations, Atkinson & Mullen Travel II, LLC, and Atkinson & Mullen Travel, Inc. filed a Response in Opposition on August 15, 2011. Defendant AM Resorts, LLC filed its own Response in Opposition on August 17, 2011.

II. DISCUSSION

Before considering Defendants' Motion for Summary Judgment, the Court addresses Plaintiffs' Motion to Remand in order to demonstrate that it has jurisdiction to hear this case.

A. Plaintiffs' Motion to Remand

28 U.S.C. § 1441(b) states as follows:

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 only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

Plaintiffs argue that because Defendants Apple Vacations, Atkinson & Mullen Travel II, LLC, Atkinson & Mullen Travel, Inc., and AM Resorts, LLC are citizens of Pennsylvania, where the original Complaint was filed, removal was not proper under 28 U.S.C. ยง 1441(b), and the case should therefore be remanded to ...


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