The opinion of the court was delivered by: Juan R. Sanchez, J.
Plaintiff Anthoinette Medley*fn1 asks this Court to remand this case to the Court of Common Pleas of Philadelphia County pursuant to 28 U.S.C. § 1447. Medley also seeks an award of fees and costs incurred as a result of the removal. For the reasons set forth below, the motion to remand will be granted, and Medley will be awarded fees and costs.
On February 20, 2009, Medley's infant son Nelsir Scott died while Medley was carrying him in a "SlingRider" infant carrier manufactured by Defendant Infantino, LLC, which she alleges she purchased at a Philadelphia Wal-Mart or Kmart store.*fn2 On June 7, 2010, Medley commenced this tort action by filing a Complaint in the Philadelphia Court of Common Pleas against Infantino. The Complaint also named as Defendants Wal-Mart Stores East, Inc., Wal-Mart Store #2141 (where Medley allegedly purchased one of the SlingRiders), store manager Steve Myers, Sears Holdings Corporation d/b/a Kmart Corporation, Kmart Corporation, Kmart of Pennsylvania, LP, Kmart, and Jeffrey Weiss (the manager of the Kmart store where Medley allegedly purchased the other SlingRider) (collectively the "Retail Defendants").
According to the state court docket, most of the Defendants filed preliminary objections to the Complaint. Medley thereafter filed an Amended Complaint, and Myers and Weiss again filed preliminary objections, which were denied. Myers's motion for reconsideration was also denied. In March 2011, Medley filed a Second Amended Complaint, which is the operative Complaint in this action. In her Second Amended Complaint, Medley sought to hold all of the Retail Defendants liable in negligence for selling a defective and unreasonably dangerous product (i.e., the SlingRider) which they knew or had reason to know was unreasonably dangerous, and for failing to warn purchasers of the dangers associated with the SlingRider. Medley also sought to hold all of the Retail Defendants except the individual store managers strictly liable as sellers of a defective product. Although the Second Amended Complaint acknowledged it could not be "determined with certainty" which of the two SlingRiders purchased by Medley caused her son's death, Medley sought to hold the Retail Defendants liable on "the theory of alternative liability as recognized by § 433(b)(1) of the Restatement (2d) of Torts." Second Am. Compl. ¶ 49.
Following a period of discovery, at least some of which appears to have been directed to the Retail Defendants, see Def.'s Mem. in Opp'n to Pl.'s Mot. to Remand (hereinafter "Def.'s Opp'n") 3 & Exs. 5-10,*fn3 the Retail Defendants filed a motion for summary judgment on March 30, 2012, Pl.'s Mot. to Remand Ex. B. In support of their motion, the Retail Defendants argued there was no evidence linking the baby carrier in which Nelsir had died to either Wal-Mart or Kmart and maintained the theory of alternative liability was inapplicable. The Retail Defendants also argued they could not be liable for merely selling a product with latent defects absent evidence they knew or should have known of the defects, and the individual store managers could not be liable because there was no evidence those individuals were corporate officers or owners of Wal-Mart or Kmart or that they took any actions that would subject them to liability.
Medley filed an opposition to the summary judgment motion on April 30, 2012. Pl.'s Mot. to Remand Ex. C. Medley argued her own deposition testimony regarding her purchase of a SlingRider from Wal-Mart and from Kmart was sufficient to establish that one of the two stores was the source of the carrier in which Nelsir had died, and further argued because both retailers had sold her the same dangerous product, they could be liable under the alternative liability theory. Medley also argued the individual store managers could be liable for their own negligent conduct because the design defect in the SlingRider was sufficiently well known, having been the subject of published reports, that the managers either knew or should have known the SlingRider presented an unreasonable danger yet continued to sell it.
While the Retail Defendants' summary judgment motion was pending, Medley filed a pretrial memorandum summarizing the facts as well as her theories of liability, causation, and damages, and listing her potential trial witnesses and exhibits. The focus of the pretrial memorandum was overwhelmingly on Infantino. Medley mentioned that she had purchased one SlingRider at Kmart and a second, identical model at Wal-Mart, Def.'s Opp'n Ex. 14, at 4, but she did not otherwise mention the Retail Defendants or discuss the theory of alternative liability. Medley did, however, include these Defendants' corporate designees in her list of potential trial witnesses. Id. Ex. 14, at 17 (listing Steven Alderson and Kathryn Guerra as potential trial witnesses); Pl.'s Mot. to Remand Ex. C, at 6 (and Exs. E & F thereto) (identifying Alderson and Guerra as Retail Defendants' corporate designees).
On May 24, 2012, the Retail Defendants submitted a supplemental reply in support of their motion for summary judgment, asserting Medley's pretrial memorandum "allege[d] no facts, and ma[de] no argument, relating to any of the Retail Defendants" and "should be considered an abandonment of [her] claims" against those Defendants. Def.'s Nov. 30, 2012, Letter Submission Ex. E.
On June 25, 2012, the trial court entered a two-sentence order summarily granting the Retail Defendants' motion for summary judgment as unopposed. Medley moved for reconsideration on the basis that she had, in fact, filed an opposition to the summary judgment motion. The Retail Defendants opposed reconsideration, conceding Medley had filed a summary judgment opposition, but arguing reconsideration would nevertheless be futile because Medley had abandoned her claims against the Retail Defendants by failing to discuss them in her pretrial memorandum. Medley filed a reply disputing that she had abandoned her claims against the Retail Defendants. In her reply, Medley noted her pretrial memorandum had described her purchases of two identical SlingRider carriers from the Retail Defendants and asserted "[t]he purchase of the defective product from the retail defendants is the only fact necessary to support a product liability claim against them." Pl.'s Mot. to Remand Ex. F. By order of July 2, 2012, the trial court granted Medley's motion for reconsideration, vacated its June 25, 2012, order granting summary judgment in favor of the Retail Defendants, and granted summary judgment in favor of the Retail Defendants as follows:
Further, upon consideration of the motion for summary judgment, Control No. 12034341, and the response thereto, it is hereby ORDERED that said Motion is GRANTED and all claims against Defendants Wal-Mart Stores East, Inc., Wal-Mart Store #2141, Steve Myers, Sears Holdings Corporation d/b/a Kmart Corporation, Kmart of Pennsylvania, LP, Kmart, and Jeffrey Weiss are dismissed. Def.'s Opp'n Ex 13.
The July 2 order granting summary judgment was docketed on July 10, 2012, and Infantino filed a notice of removal the same day, asserting that with the dismissal of the Retail Defendants, the case had become removable based on diversity jurisdiction. Medley timely filed the instant motion to remand on July 18, 2012. See 28 U.S.C. § 1447(c) (providing a motion to remand a case "on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal").
Medley asks this Court to remand this case to the Philadelphia Court of Common Pleas on the basis that the notice of removal was filed beyond the one-year limit to remove an action based on diversity of citizenship, among other reasons. Under the version of the ...