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Boyd v. Burlington Coat Factory of Pennsyvania, LLC

United States District Court, E.D. Pennsylvania

January 31, 2017

JESSIE BOYD, Plaintiff,
v.
BURLINGTON COAT FACTORY OF PENNSYLVANIA, LLC, Defendant.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         Jessie Boyd sued Burlington Stores, Inc. (“Stores”) in state court after she tripped and fell in a Burlington Coat Factory store. Boyd allegedly made a mistake when she filed suit-she named Stores as defendant when she should have named Burlington Coat Factory of Pennsylvania, LLC (“BCFP”). BCFP later removed the case and Boyd filed a motion to remand alleging that the removal was untimely as it was filed more than thirty days after service of the complaint. BCFP claims it timely removed the case because it filed the notice of removal within thirty days of Boyd agreeing to correct the caption in state court to reflect BCFP's proper name. Because Boyd properly served BCFP under Pennsylvania law, BCFP was on notice of a removable action at that time and the failure to remove the case within thirty days of this notice violates 28 U.S.C. § 1446(b)(1), notwithstanding any error in the corporate designation. Boyd's motion to remand is granted.

         I.

         A.

         Boyd was injured when she tripped and fell in a Burlington Coat Factory store in Upper Darby, Pennsylvania. (Compl. ¶ 4, ECF No. 1, Ex. A.) She sued Stores for negligence in the Philadelphia County Court of Common Pleas. Boyd initiated the action by filing a praecipe for a writ of summons on March 18, 2016, which she served on April 6, 2016 at the Burlington Coat Factory store located at 424 Oregon Avenue in Philadelphia, Pennsylvania. (Notice of Removal ¶ 1, ECF No. 1.) Boyd then filed a complaint on June 8, 2016 and served it on Defendant the next day. (Id. ¶ 2; ECF No. 8-7, Ex. D, at 6.)

         On August 16, 2016 BCFP sent Boyd's counsel a letter contending that Boyd sued the wrong corporate entity and proposing a stipulation in which Boyd would agree to dismiss Stores and substitute BCFP. (ECF No. 8-6, Ex. C at 2-3.) On August 17 Boyd's counsel signed an amended stipulation agreeing to substitute the corporate entities. He added, however, a provision that would bar the new entity from raising a statute of limitations defense. (ECF No. 8-6, Ex. C, at 5-6.) On August 23 BCFP countered Boyd's proposal-BCFP agreed to the statute of limitations waiver but requested, inter alia, that Boyd would not contest removal to federal court. (Def.'s Resp., ECF No. 11, Ex. I.)

         On September 16, 2016, after additional exchanges between the parties, Boyd's counsel stated that he would not agree to the removal waiver. (ECF No. 11, Ex. J.) BCFP responded by signing the August 17 version of the stipulation (which Boyd's counsel had already signed) and filing the stipulation in the Court of Common Pleas on September 16, 2016. (ECF No. 8-7, Ex. D, at 8.) BCFP filed its notice of removal on the same day. (ECF No. 1.)

         BCFP removed this case over three months after it was served with the complaint. BCFP nonetheless argues that removal was timely because the case was not removable until it was properly named as a defendant-and this did not occur until Boyd's counsel signed a stipulation agreeing to substitute parties on August 17, 2016.

         B.

         BCFP owns the Burlington Coat Factory store in Upper Darby where Boyd was injured. (Answer, ECF No. 3, ¶¶ 2-3; Def.'s Resp., at 7.) BCFP also does business in Philadelphia at the location where Boyd originally served BCFP, (Answer ¶ 3.), and it owns the fictitious names Burlington Stores and Burlington Coat Factory. (Def.'s Resp., at 6.)

         BCFP is a Pennsylvania Limited Liability Company. (Id.) Its sole member is Burlington Coat Factory Warehouse Corporation (“BCFWC”). (Def.'s Resp., Ex. I.) BCFWC is a Delaware Corporation with its principal place of business at 1830 Route 130 North, Burlington, New Jersey. (Id.) Stores, the entity Boyd incorrectly named in her complaint, is a Delaware corporation with its principal place of business at 1830 Route 130 North, Burlington, New Jersey, the same principal place of business as BCFWC. (Def.'s Resp., at 7.)

         II.

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “The party asserting jurisdiction bears the burden of showing that at all stages of litigation the case is properly before the federal court.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). A plaintiff may challenge removal by moving to remand the case to state court. See 28 U.S.C. § 1447(c). Grounds for remand include: (1) lack of subject-matter jurisdiction or (2) a defect in the removal procedures. See PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993) (citing 28 U.S.C. § 1447(c)). A motion to remand based on a defect “other than lack of subject matter jurisdiction” must be filed within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c). “The removal statute should be strictly construed and all doubts resolved in favor of remand, ” Johnson v. SmithKline Beecham ...


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