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Crowthers v. Moutain Productions, Inc.

United States District Court, E.D. Pennsylvania

July 22, 2019



          GOLDBERG, J.

         Plaintiff Brian Crowthers originally filed his Complaint in the Philadelphia County Court of Common Pleas, alleging claims of negligence against Defendants Mountain Productions, Inc. (“Mountain Productions”), Mountain Production Services, Inc. (“Mountain Production Services”), the National Football League (the “NFL”), and ESPN, Inc. (“ESPN”). The NFL removed the case to federal court. Currently pending is Plaintiff's Motion to Remand. For the following reasons, the Motion is granted and this case will be remanded to the Court of Common Pleas for Philadelphia County.


         According to the Complaint, the NFL held its annual draft in Philadelphia, Pennsylvania, over the weekend of April 27, 2017. ESPN, Inc. broadcasted the draft to television audiences. Mountain Productions and Mountain Production Services were contracted by the NFL and/or ESPN to design and construct a temporary outdoor amphitheater on the steps of the Philadelphia Museum of Art. This amphitheater was approximately seventy feet high. (Compl. ¶¶ 14, 16, 18, 21.)

         Plaintiff is a member of the International Alliance of Theatrical Stage Employees Union, Local 8. On April 22, 2017, Plaintiff was employed by Tri-State Staging, Inc., working as a stagehand to construct the temporary amphitheater on the museum steps. While performing these services, Plaintiff fell approximately thirty feet and crashed into the stage below. Plaintiff alleges he was working at heights without proper fall protection because anchor points had not been installed. Plaintiff claims that Defendants directed and/or allowed construction to continue without fall protection so that the amphitheater would be constructed in advance of the draft's start date of April 27. It is alleged that plaintiff suffered head trauma, a fractured rib cage, a ruptured spleen, lung contusion with hemorrhage, and a fractured wrist. (Compl. ¶¶ 19-20, 23-28, 32.)

         Plaintiff filed suit in the Court of Common Pleas in Philadelphia on January 9, 2019, pleading negligence against Defendants NFL, ESPN, Mountain Productions and Mountain Production Services. ESPN was served on January 12, 2019, and the NFL was served on January 14, 2019. Although the Luzerne County Sheriff's Office was initially unable to effect service on Mountain Productions or Mountain Productions Services because they did not have an office at their registered address, both companies were served at a new address by March 2019. The NFL filed a notice of removal on February 13, 2019. Plaintiff then filed this Motion to Remand on February 15, 2019, on the basis that ESPN-the only defendant besides the NFL to have been properly served-had not joined or consented to removal, rendering the NFL's notice of removal procedurally defective under the “rule of unanimity, ” 28 U.S.C. § 1446(b)(2). Plaintiff also argues that because Mountain Productions and Mountain Production Services are incorporated in Pennsylvania, the “forum defendant” rule, 28 U.S.C. § 1441(b)(2), precludes federal diversity jurisdiction.


         Under 28 U.S.C. § 1441(a), a defendant may remove a civil action filed in a state court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of the plaintiff's service of the complaint upon defendant. 28 U.S.C. § 1446(b). The defendants bear the burden of establishing that removal jurisdiction is proper. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).

         Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court. 28 U.S.C. § 1447(c). Remand to the state court is appropriate for “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). “The defendant's right to remove is to be determined according to the plaintiffs' pleading at the time of the petition for removal, and it is the defendant's burden to show the existence of federal jurisdiction.” Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). Because proceeding in a case without valid subject matter jurisdiction would make any decree in the case void, removal statutes are strictly construed and all doubts are resolved in favor of remand. Id.


         Plaintiff presents two arguments in support of his Motion to Remand: (1) the NFL's removal to federal court was procedurally defective under the “rule of unanimity” because it lacked the requisite consent of Defendant ESPN, and (2) the “forum defendant” rule precludes federal diversity jurisdiction because two of the defendants-Mountain Productions and Mountain Production Services-are incorporated in Pennsylvania. Defendant NFL responds that the rule of unanimity was satisfied because Defendant ESPN (the only other Defendant that had been served at the time) consented to removal via a timely email on February 13, 2019, even though due to an alleged “clerical error immediately before the filing deadline” that email was not shared with the Court until two weeks later. Defendant NFL also posits that Defendants Mountain Productions and Mountain Productions Services were not properly served at the time of removal, meaning that they were not “properly joined and served as defendants” for purposes of the forum-defendant rule.

         Because I find that Defendant NFL's notice of removal lacked the requisite consent of Defendant ESPN and was thus procedurally defective under the rule of unanimity, I need not reach the forum-defendant issue.

         Pursuant to 28 U.S.C. § 1446, a “defendant or defendants desiring to remove a state civil action . . . shall file in federal district court a notice of removal.” 28 U.S.C. §§ 1446(a), (b). Section 1446 has been interpreted to require that all properly-served defendants join or consent to the removal-the so-called “rule of unanimity.” Balazik v. Cty. of Dauphin, 44 F.3d 203, 213 (3d Cir. 1995). Failure of all defendants to join or consent to the removal constitutes a defect in the removal procedure, though it is not a jurisdictional defect. Id. The rule of unanimity does not apply in three narrow exceptions: (1) a non-joining defendant is unknown or is a nominal party; (2) a defendant has been fraudulently joined; or (3) a non-resident defendant had not been served at the time of removal. Id.; see also Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir. 1985).

         None of the three exceptions apply to Defendant ESPN: Defendant ESPN is neither unknown nor is it alleged that they are a nominal party; there is no allegation Defendant ESPN has been fraudulently ...

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