DIRIENZO v. WIRTGEN GROUP et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 23 Report and Recommendations, & remanding matter to Superior Court of New Jersey, Law Division, Essex County ***CIVIL CASE TERMINATED. Signed by Judge William J. Martini on 6/4/13. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JULIE ZIPPO DiRIENZO, as Administratrix
and Administratrix ad Prosequendum of the
Estate of Pasquale DiRienzo,

Civ. No. 2:12-cv-07881 (WJM)

ORDER

Plaintiff,
v.
WIRTGEN GROUP, a corporation formed in
accordance with the Laws of Germany, et al.,
Defendants.

Plaintiff Julie Zippo DiRienzo, a citizen of New Jersey, brings this action on
behalf of the estate of her late husband, Pasquale DiRienzo (“DiRienzo”). The action
arises out of a fatal workplace injury DiRienzo sustained when he fell from a Wirtgen
Cold Milling Machine while milling a section of the New Jersey Turnpike.

The

Complaint, which was originally filed in the Superior Court of New Jersey, asserts claims
such as wrongful death and failure to supervise.
The Defendants in this case can be divided into two groups. First, there is Wirtgen
America, Inc. and Wirtgen GmbH (together “Wirtgen”), the manufacturer of the Wirtgen
Cold Milling Machine.

Wirtgen is a foreign corporation.

The second group of

Defendants (the “New Jersey Defendants”), are all citizens of New Jersey. That group
includes Defendant Paolella Pro-Filing, Inc., DiRienzo’s former employer.

On December 27, 2012, Wirtgen removed the action to this Court, arguing that the
Court had diversity jurisdiction (1) because Wirtgen and Plaintiff were citizens of
different states, and (2) because the New Jersey Defendants were fraudulently joined in
the action. ECF No. 1. Wirtgen subsequently filed a motion to “drop co-defendants,”
and Plaintiff filed a cross-motion to remand. ECF Nos. 12, 19. The motions were
referred to United States Magistrate Judge Mark Falk. On April 24, 2013, Judge Falk
filed a well-reasoned Report and Recommendation (the “Report and Recommendation”)
in which he found that “Wirtgen has not carried its heavy burden of demonstrating that
the New Jersey defendants have been fraudulently joined.” Report and Recommendation
at 7, ECF No. 23. Based on this conclusion, Judge Falk held that there was no diversity
of citizenship, and he recommended that the action be remanded to state court.
The parties were notified that they had fourteen (14) days to submit objections to the
Report and Recommendation pursuant to Local Civil Rule 72.1(c)(2). Wirtgen timely
filed objections to the Report and Recommendation, Plaintiff opposed the objections, and
Wirtgen submitted a reply. ECF Nos. 24-26. In its objections, Wirtgen makes essentially
the same arguments that Judge Falk rejected when evaluating the motion to remand.
Specifically, Wirtgen argues that the Complaint lacks evidentiary support and that its
conclusory allegations would not survive a motion to dismiss. This Court has reviewed
the Report and Recommendation de novo and agrees in all respects with Judge Falk’s
reasoning. For the reasons set forth in detail in the Report and Recommendation, and for
good cause appearing;
IT IS on this 4th day of June 2013, hereby,

ORDERED that Wirtgen’s objections to the Report and Recommendation are
overruled; and it is further
ORDERED that the Report and Recommendation of Magistrate Judge Mark Falk
is adopted as the Opinion of this Court; and it is further
ORDERED that this matter is hereby remanded to the Superior Court of New
Jersey, Law Division, Essex County.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
cc:

The Hon. Mark Falk, U.S.M.J.