United States District Court, E.D. Pennsylvania
Brian Crowthers originally filed his Complaint in the
Philadelphia County Court of Common Pleas, alleging claims of
negligence against Defendants Mountain Productions, Inc.
(âMountain Productionsâ), Mountain Production Services, Inc.
(âMountain Production Servicesâ), the National Football
League (the âNFLâ), and ESPN, Inc. (âESPNâ). 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.
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,
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.)
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.
STANDARD OF REVIEW
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
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
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
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
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).
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