United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
lawsuit arose in the wake of a two car accident involving
Daniel Hagan and Deisy Bravo Leon that occurred on July 5,
2016. (Doc. 1-1). On September 12, 2017, Plaintiffs, Daniel
Hagan and his wife, Karen Hagan, filed a complaint in the
Court of Common Pleas of Pike County, Pennsylvania.
(Id.). The action sought relief from (1) Deisy Bravo
Leon, the driver of the vehicle that collided with
Hagan's car, (2) Efrain Hernandez, the owner of the
vehicle that collided with Hagan's car, and (3)
Progressive Insurance Company, the insurer of Hagan's
vehicle. (Id.). On November 22, 2017, Defendant
Progressive removed the suit to this Court via a Notice of
Removal. (Doc. 1). Presently before the Court is
Plaintiffs' Motion to Remand, (Doc. 3), and two related
motions, (Docs. 12, 14). For the reasons that follow, the
Court will deny the Motion to Remand and dismiss the related
motions as moot.
to Plaintiffs' Complaint, Daniel Hagan was driving his
car on July 5, 2016, when a Dodge Durango-owned by Efrain
Hernandez but driven by Deisy Bravo Leon-made an improper
turn and collided with Hagan's car. (Doc. 1-1 at
¶¶ 8-10, 26). As a result, Plaintiffs filed suit in
state court on September 12, 2017. In addition to suing
Hernadez and Leon, Daniel Hagan also asserted a claim against
his car's insurer, Progressive, asserting that he was
entitled to underinsured motorist benefits under his policy.
(Id. at ¶¶ 29-33). On October 12, 2017,
Plaintiffs released Hernandez and Leon from "all claims
and demands that [Plaintiffs] ever had, or now have, or may
have, known or unknown, against [Hernandez and Leon], created
by, or arising out of the incident of July 5, 2016."
(Doc. 1-2). In exchange for the release, Hernandez and Leon
agreed to pay Plaintiffs $15, 000 and to "refus[e] to
consent to Removal if [Progressive] seeks to Remove the
matter to Federal Court." (Id.).
filed a Notice of Removal on November 22, 2017. (Doc. 1).
Plaintiffs then filed a Motion to Remand on November 30,
2017, which argued that removal was improper because (1) the
Notice of Removal failed to allege the citizenship of all
parties at the time the Complaint was filed, and (2) not all
Defendants consented to the removal. (Doc. 3). On the same
day Plaintiffs' Motion to Remand was filed, Progressive
Amended its Notice of Removal to allege the citizenship of
all parties at the time the Complaint was filed. (Doc. 7). On
December 15, 2017, Plaintiffs filed a motion which requested
that this Court deem their Motion to Remand unopposed because
Progressive did not file a brief in opposition to that motion
within the time allotted by the Local Rules. (Doc. 12). In
response, Progressive argued that its Amended Notice of
Removal was its opposition to Plaintiffs' Motion to
Remand. (Doc. 14). Alternatively, Progressive moved for an
extension of time to file its brief in opposition to
Plaintiffs' Motion to Remand. (Id.).
argue that remand is appropriate for two separate and
independent reasons. First, Plaintiffs argue that Progressive
does not allege the citizenship of the parties at the time
the Complaint was filed. (Doc. 4 at 4-7). Second, Plaintiffs
argue that not all Defendants have joined the removal
petition. (Id. at 3-4). Because the Court finds that
both of the arguments lack merit, the Court need not address
whether Plaintiffs' motion is unopposed or whether the
Court should allow Progressive an extension of time to file a
brief in opposition.
Plaintiffs' first argument, to the extent that the
diversity allegations in Progressive's Notice of Removal
were lacking, Progressive's Amendment clearly alleges
that, at the time Plaintiffs' Complaint was filed,
Plaintiffs were citizens of Pennsylvania, Hernandez and Leon
were citizens of New Jersey, and Progressive was a citizen of
Ohio. (Doc. 7). Thus, even if Progressive's original
Notice of Removal was deficient, the defect was cured by
Progressive's Amendment. See Miller v. Principal Life
Ins. Co., 189 F.Supp.2d 254, 257-58 (E.D. Pa. 2002).
to Plaintiffs' second argument, the procedure for
removing a civil case to federal court is governed by 28
U.S.C. § 1446. "Section 1446 has been construed to
require that when there is more than one defendant, all must
join in the removal petition." Lewis v. Rego
Co., 757 F.2d 66, 68 (3d Cir. 1985); see also
Delalla v. Hanover Ins., 660 F.3d 180, 188 (3d Cir.
2011) ("Removal requires unanimity-all defendants must
join in a notice of removal in order for removal to be
permissible."). "Remand is appropriate where one or
more defendants do not join in removal." Am. Asset
Fin., LLC v. Corea Firm, 821 F.Supp.2d 698, 699 (D.N.J.
2011). Nevertheless, "[t]he unanimity rule may be
disregarded where: (1) a non-joining defendant is an unknown
or nominal party; or (2) where a defendant has been
fraudulently joined." Balazik v. Cty. Of
Dauphin, 44 F.3d 209, 213 n. 4 (3d Cir. 1995).
"Nominal parties are generally those without a real
interest in the litigation." Bumberger v. Ins. Co.
of N. Am., 952 F.2d 764, 767 (3d Cir. 1991).
in addition to Progressive, there are two other named
Defendants, Hernandez and Leon. Plaintiffs are correct that
there is no indication that either Hernandez or Leon
consented to the removal. Nevertheless, included with
Progressive's Notice of Removal is a document, signed by
Plaintiffs, that purports to release Hernandez and Leon from
any claims Plaintiffs have against them that arose out of the
car accident. (Doc. 1-2). Further, in their Motion,
Plaintiffs state that "defendants Deisy Bravo Leon and
Efrain Hernandez settled the claims against them for [the]
full policy limits of their coverage." (Doc. 4 at 1,
12). Finally, Hernandez and Leon have provided evidence that
they have paid the $15, 000 owed to Plaintiffs under the term
of the Release. (Doc. 10 at 16).
light of the fact that Hernandez and Leon have settled all
the claims Plaintiffs have against them, the Court finds that
these two defendants have no real remaining interest in the
litigation and, consequently, are nominal parties from whom
consent is no longer required for removal. Although it
appears that the Third Circuit has yet to consider a fact
pattern analogous to this, the Court notes that its holding
is consistent with at least two other Court of Appeals that
have squarely addressed this issue. See Acosta v. Master
Maint. & Constr. Inc., 452 F.3d 373, 379 (5th Cir.
2006) (holding that the "LIG" defendants'
consent for removal was not required when the plaintiffs
"had signed a letter evincing an agreement in principle
to settle their claims against the LIG defendants, and the
state court had granted the parties' joint motion to
sever the LIG defendants from the ongoing litigation.");
Midwestern Indem. Co. v. Brooks, 779 F.3d 540,
542-44 (8th Cir. 2015).
particular, the facts of Midwestern Indemnity Company v.
Brooks are almost identical to the facts of this case.
There, the plaintiff, Brooks, was negligently struck by a car
while riding her bicycle. Midwestern Indem. Co., 779
F.3d at 542. After the driver of the car died, Brooks filed
suit against the driver's estate in state court.
Id. The driver's estate quickly settled
Brooks's claims for the full limits of the driver's
insurance policy. Id. Brooks then joined as a
defendant her own insurance company, Midwestern Indemnity, in
order to recover her policy's underinsured motorist
benefits. Id. at 542-43. Midwestern promptly removed
the matter to federal court. Id. at 543. Brooks then
moved to remand, arguing that the driver's estate did not
consent to the removal. Id. The district court
denied the motion to remand, and the Eighth Circuit affirmed.
Id. at 543-44. Noting that the settlement
extinguished Brooks's claims against the
defendant-driver's estate, the Eighth Circuit found that
the estate was a nominal party with no real interest in the
continuing litigation and, therefore, its consent was not
required to remove the action to federal court. Id.
in Midwestern Indemnity, Plaintiffs here have no
remaining claims against the nonconsenting defendants and the
nonconsenting defendants have no remaining interest in the
litigation. Indeed, it appears that the sole reason for the
continued inclusion of Hernandez and Leon in this lawsuit is
to defeat any attempt by Progressive to remove the action to
federal court. Nevertheless, because Hernandez and Leon have
no continuing interest in this litigation, they are nominal
defendants and, as a result, ...