United States District Court, E.D. Pennsylvania
RONALD MELK, individually and as executor of the estate of MARTHA MELK
PULTE HOME CORPORATION OF THE DELAWARE VALLEY, et al.
the court is the motion of plaintiff Ronald Melk individually
and as executor of the estate of Martha Melk to remand this
action to the Court of Common Pleas of Philadelphia County
pursuant to 28 U.S.C. § 1447 on the ground that the
court lacks subject matter jurisdiction under 28 U.S.C.
action was originally filed by plaintiff in the Court of
Common Pleas of Philadelphia County against defendant home
construction company Pulte Home Corporation of the Delaware
Valley. Plaintiff, a citizen of Pennsylvania, seeks damages
for personal injuries that he and his late wife sustained
from mold exposure resulting from water infiltration in the
residence that they had purchased from Pulte. Pulte, a
citizen of Michigan and of Georgia, timely removed the action
to this court on October 25, 2016 based on diversity of
citizenship and an amount in controversy in excess of $75,
000, exclusive of interest and costs. See 28 U.S.C.
obtaining leave of court Pulte filed a third-party complaint
on December 14, 2016, which it amended later that same day,
against five third-party defendants with whom Pulte
purportedly contracted to perform construction work on the
a telephone conference on May 16, 2017 between the court and
counsel, plaintiff's counsel stated that he sought to
file an amended complaint. The court permitted him to do so,
and thereafter on May 23, 2017 plaintiff filed an amended
complaint naming as defendants Nassau Construction Company,
Patrick McDermott Plastering, LLC, Archer Exteriors, Inc.,
Guzzo Masonry, Inc., and All American Landscapes, LLC, in
addition to Pulte.
7, 2017 plaintiff filed the instant motion to remand on the
ground that the court lacks subject matter jurisdiction under
28 U.S.C. § 1332(a)(1). Plaintiff, a citizen of
Pennsylvania, maintains that defendant Patrick McDermott
Plastering, LLC is also a citizen of Pennsylvania. If
plaintiff is correct in this regard, subject matter
jurisdiction is absent since the citizenship of plaintiff
must be different from the citizenship of all defendants.
Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373-74 (1978).
time of the filing of the motion to remand, the citizenship
of Patrick McDermott Plastering, LLC was
unclear.Following a telephone conference with
counsel, the court entered an order on August 15, 2017
instructing Patrick McDermott Plastering, LLC to file an
affidavit stating the following: (1) whether it is a
corporation or limited liability company; (2) if it is a
corporation the affidavit shall identify its state of
incorporation and principal place of business; and (3) if it
is a limited liability company the affidavit shall set forth
the names and citizenship of its members. The citizenship of
a corporation is determined by its state of incorporation and
by its principal place of business, while the citizenship of
a limited liability company is determined by the citizenship
of its members. 28 U.S.C. § 1332(c); Zambelli
Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir.
2010). On August 18, 2017 Patrick McDermott Plastering, LLC
filed an affidavit stating that it is a limited liability
company with one member who is a citizen of Pennsylvania.
of citizenship between the original parties is determined as
of the time of the filing of the original complaint.
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S.
567, 575-76 (1920). However, if new defendants are added in
an amended complaint, diversity of citizenship between the
plaintiff and the new parties against whom no claims were
made in the original complaint is determined at the time of
the filing of the amended complaint. 15 James Wm. Moore,,
Moore's Federal Practice §
102.16(2)(b)(iii) (3d ed. 2017). Thus in order to determine
whether diversity of citizenship exists between the plaintiff
and the new defendants added by the amended complaint, we
consider the citizenship of the plaintiff and the citizenship
of the new defendants the time of the filing of the amended
complaint. Id.; see also Lewis v. Lewis,
358 F.2d 495, 502 (9th Cir. 1966).
time of the filing of the amended complaint, both plaintiff
and defendant Patrick McDermott Plastering, LLC were citizens
of Pennsylvania. Accordingly, subject matter jurisdiction
does not exist, and the action will be remanded to the Court
of Common Pleas of Philadelphia County.
On June 5, 2017 defendant Patrick
McDermott Plastering, LLC filed a third-party complaint
against Paul McNenemy, Jose Ojeda, and David Gahn,
individuals with whom McDermott Plastering purportedly
contracted to install stucco in the Melk home.
The amended complaint names Patrick
McDermott Plastering, LLC but the amended complaint refers to
it as a corporation. The amended complaint alleges that
“Defendant, Patrick McDermott Plastering, L.L.C.,
(‘McDermott') is a Pennsylvania Corporation with a
principal place of business located at 2058 Glenwood Avenue,
Glenside, Pennsylvania 19038, which contracted with Pulte to
Perform [sic] the stucco lathe and window and door flashing
on the Melk residence.” Patrick McDermott Plastering,
LLC stated in its answer: “It is admitted that
Defendant, Patrick McDermott ...