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Russell M. Johnson v. National Consolidation

February 21, 2013

RUSSELL M. JOHNSON,
PLAINTIFF,
v.
NATIONAL CONSOLIDATION SERVICES, LLC, ET AL.,
DEFENDANTS.



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

MEMORANDUM

Russell Johnson commenced this action in the Philadelphia County Court of Common Pleas against National Consolidation Services, LLC and Walgreen's Distribution Center, Inc., Walgreen Eastern Company, Inc., Walgreen National Corporation, and Walgreen Company (collectively, "Walgreens"). Notwithstanding its removal to federal court, the Court previously remanded this case because Walgreens failed to offer any evidence that Walgreen's Distribution Center, Inc. was not a corporation domiciled in the Commonwealth of Pennsylvania, thus calling into question the diversity of the parties. Walgreens subsequently filed a second notice of removal, prompting Mr. Johnson to file a second motion to remand. For the reasons that follow, the Court grants the motion.

BACKGROUND

Mr. Johnson alleges that he resides in Pennsylvania, that Defendant National Consolidation Services was responsible for freight consolidation at Walgreens distribution centers, and that Walgreen's Distribution Center, Inc., one of the Walgreens Defendants, is a Pennsylvania corporation with a principal business address in Bethlehem. Mr. Johnson further alleges that he was employed as a delivery driver for CPC Logistics, Inc., and that the Defendants hired his company to deliver goods to Walgreens stores. It seems that on February 5, 2010, the Defendants loaded materials onto a truck that Mr. Johnson drove to a Walgreens store. Upon arriving at the store, Mr. Johnson began to unload the truck, at which point the materials allegedly fell on him because, he claims, they were negligently loaded. Mr. Johnson has brought a negligence claim against all the Defendants.

In its first notice of removal, Walgreens asserted that "Defendant Walgreen's Distribution Center, Inc. does not exist as a corporate entity. Walgreen's Distribution Center is a physical facility located in Bethlehem, Pennsylvania that is owned and operated by Walgreen Eastern Co. Inc." Notice of Removal at ¶ 7, Johnson v. Nat'l Consolidation Servs., LLC, No. 12-3185 (E.D. Pa. June 5, 2012) (Docket No. 1). Likewise, in its response to Mr. Johnson's initial motion to remand, although Walgreens asserted that Walgreens Distribution Center, Inc. is not a corporate entity, it did not support this claim through an affidavit or other evidence. See Docket No. 13 at 7-8. The Court subsequently granted Mr. Johnson's motion to remand because Walgreens failed to meet its burden of establishing the existence of complete diversity between the parties. See Docket No. 15 at 1-2.

On September 5, 2012, more than 120 days after it was served with Mr. Johnson's complaint, Walgreens filed a second notice of removal and attached an affidavit from Mary Jen Fisher, a corporate legal assistant for Walgreen Company, stating that no corporate entity called Walgreen Distribution Center, Inc. exists. Hence, with there being no Pennsylvania corporate citizen there would indeed be diversity. Therefore, based on Ms. Fisher's declaration, Walgreens argues that there is complete diversity, and that the Court should deny the pending motion to remand.

LEGAL STANDARD

Under 28 U.S.C. § 1441,

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. 28 U.S.C. § 1441(a). However, "[t]he removal statutes 'are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)) (additional citations omitted).

Removal must take place "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based," or "if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(1), (3). Generally, all defendants in a case must timely consent to removal in order to remove an action to federal court. Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995).

DISCUSSION

A. Timeliness of Removal Under § 1446(b)(1).

The federal removal statute generally requires a defendant to file a notice of removal within 30 days of receiving a copy of the initial pleading. See 28 U.S.C. ยง 1446(b)(1). In this case, well more than 30 days separate the service of Mr. Johnson's complaint and the filing of Walgreens' second notice of removal. Although Walgreens briefly argues that the Court should exercise its equitable powers to permit an untimely removal, at least one court within this district has held that the "30-day [removal] limitation is mandatory and cannot be extended by the court." Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (E.D. Pa. 1982) (Shapiro, J.). Even assuming arguendo that the Court could waive the 30-day requirement, nothing in equity favors such a step here. The Third Circuit Court of Appeals has long established that a removing party has the burden of establishing that jurisdiction exists. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 359 (3d Cir. 1995). Neither malfeasance by Mr. Johnson nor an unforeseen circumstance prevented Walgreens from timely meeting its burden here. Indeed, it is quite clear that Walgreens had the wherewithal to supply the requisite information and to do so efficiently and economically. Instead, Walgreens simply neglected to provide evidence in support of its bald assertion about the corporate status of Walgreen's Distribution Center. To allow Walgreens a second bite at the ...


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