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Russell Thompson and Thomasina Thompson, H/W v. Kulicke Konecranes Gmbh

August 3, 2012


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



This case involves allegations of negligence, products liability, and breach of warranty arising from the injuries sustained by Plaintiffs Russell and Thomasina Thompson following an incident involving a crane at the Aker Philadelphia Shipyard. Plaintiffs seek to remand this case to state court because they contend that there is not complete diversity of citizenship among the parties. Defendants Ingenieurtechnik und Maschinenbau GMBH ("IMG") and Reading Crane and Engineering Company ("Reading Crane") ask the Court to retain jurisdiction, primarily arguing that Defendant Reading Crane is "fraudulently joined." The Court is not persuaded that the joinder of Reading Crane is fraudulent. For reasons that follow, because complete diversity of citizenship among the parties is lacking, the Court will grant the Motion to Remand the case to the Court of Common Pleas of Philadelphia County.


On March 16, 2011, Plaintiffs commenced this action in the Philadelphia County Court of Common Pleas against Defendants Kulicke Konecranes GMBH ("KKG"), KCI Konecranes International PLC ("KCI"), IMG, and Reading Crane. (Doc. No. 1-4.) Pertinent to this Opinion, Plaintiffs and Reading Crane are citizens of Pennsylvania. (Id.) KKG and IMG are citizens of Germany and KCI is a citizen of Finland. (Id.)

On August 26, 2011, Defendant IMG filed a Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446. (Doc. No. 1.) In the Notice of Removal, IMG asserts that the Court has original jurisdiction over the case based on diversity of citizenship jurisdiction required by 28 U.S.C. § 1332(a). (Id. at 8.) IMG also contends that Reading Crane is "fraudulently joined" as a Defendant in order to trigger the "forum defendant rule" found in 28 U.S.C. § 1441(b), which proscribes removal where at least one defendant is a citizen of the forum state.

On September 19, 2011, Plaintiffs filed a Motion to Remand the matter to state court pursuant to 28 U.S.C. § 1447(c), invoking the forum defendant rule and arguing that Defendant Crane is not fraudulently joined. (Doc. No. 8.) Defendants oppose remand, and two Defendants-IMG and Reading Crane-have filed briefs in opposition to Plaintiffs' motion. (Doc. Nos. 12 and 14.) The Court held a hearing on the Motion to Remand on October 27, 2011. (Doc. No. 18.) Following the hearing, the Court ordered limited discovery and supplemental briefing to clarify conflicting affidavits regarding the involvement of Reading Crane with the crane that has given rise to Plaintiffs' claims.*fn1 (Doc. No. 19.) The Court has considered the parties' briefs, exhibits, and oral arguments, and has conducted an independent review of the allegations in the Complaint in reaching the decision that this case should be remanded to the Court of Common Pleas of Philadelphia County.


This action arises from an incident that took place at Aker Philadelphia Shipyard, where Aker is a shipbuilder. (Doc. No. 1-4 ¶¶ 24-25; Doc. No. 24 at 2.) Aker employed Plaintiff Russell Thompson as a crane operator at the Shipyard. (Doc. No. 1-4 ¶¶ 19-22, 24-25; Doc. No. 24 at 2.) On June 1, 2009, Plaintiff was operating an "A-frame" crane identified as "SN 23511.2" (also referred to as the "subject Crane" or "crane A-2"), which was designed to be operated by a "tethered pendent remote control." (Doc. No. 1-4 ¶¶ 7-10, 19-22, 24-25.) The length of the tethering of the remote control required Plaintiff Russell Thompson, while operating the crane, to be placed "in an area where a crane load could fall." (Id. ¶¶ 19-22.) On the day of the incident, Plaintiff was operating the crane when a steel plate weighing more than 1,200 pounds fell from the crane and on top of him. (Doc. No. 1-4 ¶ 25; Doc. No. 23 at 2.)

As can be imagined, the impact from the steel plate caused Russell Thompson numerous injuries. He has suffered from several serious permanent injuries, including damage to his skull, ribs, brain, and cognitive function. (Doc. No. 1-4 ¶¶ 25, 28.) Consequently, he has undergone considerable medical treatment and endured immense physical pain (id. ¶ 28), and he will continue to need vast medical care (id. ¶ 30). Additionally, he has suffered from scarring, deformity, pain, humiliation, embarrassment, disfigurement, loss of well-being, a significant decrease in his ability to engage in routine activities, and a loss of life's pleasures. (Id. ¶ 29.) His injuries have prevented Plaintiff from earning wages and will continue to restrict his earning capacity. (Id. ¶ 31.) Because of the above, Plaintiff's wife, Plaintiff Thomasina Thompson, has brought a claim of loss of consortium against all Defendants. (Doc. No. 1-4 ¶¶ 88-89.)

Each count in the Complaint alleges a common law claim arising under the laws of the Commonwealth of Pennsylvania. Counts I through III allege that Defendants KKG, KCI, and IMG were negligent in the design, manufacture, and distribution of the crane that caused Plaintiff Russell Thompson's injuries. (Doc. No. 1-4 ¶¶ 32-43.) Count IV alleges that Defendant Reading Crane was negligent in the design, manufacture, sale, maintenance, repair, and inspection of the crane. (Id. ¶¶ 44-48.) In Counts V through VII, Plaintiffs bring a products liability claim against Defendants KKG, KCI, and IMG as suppliers of the allegedly defective crane. (Id. ¶¶ 49-69.) Counts VIII through X each allege a breach of warranty claim against Defendants KKG, KCI, and IMG for breaching express and implied warranties by introducing into the stream of commerce a crane that was unmerchantable, unfit, and unsafe "for the ordinary and particular purposes for which [the crane] was supplied." (Id. ¶¶ 70-87.) In Count XI, Plaintiff Thomasina Thompson brings a claim of loss of consortium against all Defendants. (Id. ¶¶ 88-89.)

The only claims brought against Defendant Reading Crane are the negligence claim in Count IV of the Complaint and the loss of consortium claim in Count XI of the Complaint. As part of the argument that Reading Crane is fraudulently joined, Defendant IMG argues in the Notice of Removal that the facts in the Complaint do not give rise to a colorable claim against Reading Crane. In support of this argument, IMG has attached to the Notice of Removal the August 26, 2011 Affidavit of John Graham, the Senior Manager of Facilities and Services of Aker Philadelphia Shipyard. (Doc. No. 1-6.) In this affidavit, Graham stated:

Based on my review of the Aker Philadelphia Shipyard maintenance and servicing records, there are no such records in our possession indicating that the Reading Crane and Engineering Company, a/k/a Pollock Research & Design, Inc., provided maintenance services with respect to the Subject Crane. (Doc. No. 1-6 ¶ 3.)

In support of the Motion to Remand, Plaintiffs argue that the evidence proffered by Defendant IMG in the Notice of Removal demonstrates "internal inconsistencies showing that the crane identified by Defendant IMG as the subject crane is not the subject crane at all." (Doc. No. 8 at 16.) The crane in question here is an A-frame crane, but the documentation produced by Graham and attached to the Notice of Removal provides information about a "crane of a completely different configuration." (Doc. No. 8 at 17.) Plaintiffs note that the documentation from Aker depicts a "consol jib crane" instead of an A-frame crane.*fn2 (Doc. No. 8 at 17 (citing Doc. No. 1, Ex. D).) Plaintiffs also point out that the crane identified ...

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