THOMAS v. JOHN FENWICK SERVICE PLAZA et al

Filing 19

OPINION & ORDER granting 6 Motion to Remand to the Superior Court of New Jersey Essex County, etc. Signed by Judge William H. Walls on 8/16/18. (cm, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SAUNDRA THOMAS, Individually and as
Administratrix Ad Prosequendum and General
Administrator of the Estate of BERRY THOMAS,
Deceased
Plaintiffs,

OPINION AND ORDER

Civ. No. 2:17-cv-04366 (WHW) (CLW)

V.

JOHN FENWICK SERVICE PLAZA, HMS HOST
FAMILY RESTAURANTS, INC., AAA LIFE
INSURANCE COMPANY, NEW JERSEY
TURNPIKE AUTHORITY, JOHN DOE (Fictitious
Name), and ABC COMPANY (Fictitious Company),
Defendants.

Walls, Senior District Judge

Pending before the Court is Plaintiff Saundra Thomas’s motion to remand. Decided
without oral argument pursuant to Local Rule 78, the motion is granted.

DISCUSSION

This case involves a slip and fall that occurred on January 17, 2017 on a property at or
about milepost 54 on the New Jersey Turnpike. Am. Compl.

¶ 2, ECF No. 5. Plaintiff is the

widow and Administratrix ad Prosequendum and General Administrathx of decedent Berry
Thomas, the individual who slipped. Id.

¶ 1. Defendants John Fenwick Service Plaza, HMS Host

Family Restaurants, Inc., New Jersey Turnpike Authority, John Doe (Fictitious Name), and ABC
Company (Fictitious Name), owned, maintained, and controlled the real property on which the
incident occurred. Id.

¶ 2. According to the Amended Complaint, the slip occurred due to icy
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conditions of a sidewalk. Id. ¶4. The incident caused decedent severe bodily injuries which
required medical treatment, and ultimately led to his death on February 15, 2017. Id.

¶ 6.

On April 7, 201$, Plaintiff filed suit in Superior Court of New Jersey asserting, inter alia,
negligence and wrongful death. Not. of Removal, Ex. A, ECF No. 1. In the original Complaint,
Plaintiffs named John Fenwick Service Plaza, HMS Host, AAA Life Insurance Company, John
Doe (Fictitious Name), and ABC Company (Fictitious Company) as defendants, but did not
name New Jersey Turnpike Authority.
Defendants removed the action to this Court on May 10 on the basis of diversity
jurisdiction. Defendants filed an answer on May 16, wherein they stated that “[t]he premises in
question are owned by the New Jersey Turnpike Authority.” Ans. ¶2, ECF No. 3.
On May 19, 2018, Plaintiffs filed an Amended Complaint asserting the same claims
against the same defendants, with the addition of New Jersey Turnpike Authority. Am. Compl.

¶

2. That same day, Plaintiffs moved to remand to state court, asserting that the addition of the
New Jersey Turnpike Authority destroyed diversity jurisdiction. ECF No. 6.
Under 28 U.S.C.

§

1332, the district courts have subject-matter jurisdiction over civil

actions between citizens of different states where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs. “A case falls within the federal district court’s
‘original’ diversity ‘jurisdiction’ only if diversity of citizenship among the parties is complete,
i.e., only if there is no plaintiff and no defendant who are citizens of the same State.” Wisconsin
Dept. of Corrections v. Schacht, 524 U.S. 381, 388 (1998).
Defendants do not dispute that New Jersey Turnpike Authority is a resident of New
Jersey, but argue that their inclusion does not destroy diversity jurisdiction because they are a
“nominal defendant with no real connection to the lawsuit.” DePs. Br. at *5 (quoting Navarro

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Say. Ass ‘n v. Lee, 446 U.S. 458, 461 (1980)). Plaintiff respond that NJTA has an interest in this
lawsuit because it owns a “non-delegable duty to business invitees such as decedent to maintain
its sidewalks in a reasonably safe condition.” P1’s. Reply at 2, ECF No. 12.
It is axiomatic that “the ‘citizens’ upon whose diversity a [party] grounds jurisdiction
must be real and substantial parties to the controversy.” Johnson v. $mithKline Beecham Corp.,
724 F.3d 337, 258 (3d Cir. 2013) (quoting Navarro Say. Ass ‘n, 446 U.S. at 460). The Third
Circuit has explained that “[n]ominal parties are generally those without a real interest in the
litigation.” Bumberger v. Ins. Co. ofN Am., 952 F.2d 764, 767 (3d Cir. 1991).
The parties do not dispute that NJTA is the owner of the property on which decedent
slipped and fell as a result of the alleged failure to maintain safe premises. Defendant maintains
that NJTA no longer has an interest in the suit because an Operating Agreement between it and
Defendant HMS Host includes a provision requiring HMH Host to “keep clean at its own cost
and expense the sidewalks, grounds and shrubbery immediately adjacent to and within the curb
lines around the buildings,” and that it “shall remove all snow and ice promptly from the
sidewalks.” Defs. Br. at *3 Defendant accordingly asserts that NJTA is not responsible for
snow and ice removal in the sidewalk area, and their inclusion does not destroy diversity
jurisdiction.
The Court rejects Defendant’s argument. Contrary to Defendant’s claim that Plaintiff
added NJTA as a ruse to destroy diversity jurisdiction, NJTA was named as defendant in direct
response to Defendant’s admission in its Answer that NJTA owned the property in question.
Perhaps as a matter of state law, NJTA will ultimately avoid liability on the basis of the
Operating Agreement; however, such issues would be properly resolved at a motion to dismiss or
a motion for summary judgment afler adequate discovery and briefing. At this stage in the

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litigation, the NJTA has a “real interest in the litigation,” Bumberger, 952 F.2d at 767, as an
owner of the property and is not a nominal party.
Consequently, the Court finds that there is not complete diversity between the parties. It
is hereby;
ORDERED that the motion to remand, ECF No. 6 is granted; and it is further
ORDERED that the case be remanded to the Superior Court of New Jersey, Essex
County.

Date:

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Senior District Judge

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