MCNULTY et al v. AUCHTER INDUSTRIAL VAC SERVICE, INC. et al

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE STEWART DALZELL ON 11/17/2015. 11/17/2015 ENTERED AND COPIES MAILED TO UNREP, E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE MCNULTY
v.
AUCHTER INDUSTRIAL
SERVICE, INC., ET AL.

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CIVIL ACTION

No. 15-53631

MEMORANDUM
Dalzell, J.
I.

November 17, 2015

Introduction
We consider here plaintiff's motion to remand to the Philadelphia County Court of

Common Pleas. George McNulty brought this action against defendants Auchter Industrial Vac
Service, Inc. (“Auchter”), Kinder Morgan Liquids Terminals, LLC (“KMLT”), Guzzler
Manufacturing, Inc. (“Guzzler”), Vactor Manufacturing Company, Inc. (“Vactor”), Federal
Signal Corporation (“FS”), Federal Signal Solutions (“FS Solutions”), Vacuum Sales, Inc.
(“Vacuum”), Navistar, Inc. (“Navistar”), Navistar International Transportation Corporation
(“Navistar Int’l”), International Truck and Engine Corporation (“International Truck”), United
States Steel Corporation (“U.S. Steel”), USX Corporation (“USX”), and USS Real Estate
(“USS”) after he suffered serious injuries while using a vac unit. For the reasons set forth below,
we will deny McNulty’s motion to remand and dismiss with prejudice his claims against
defendants U.S. Steel, USX, and USS.

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Pursuant to her Order of October 28, 2015, Chief Judge Tucker consolidated C.A. Nos. 15-5391
and 15-5392 under this single Civil Action number which was filed first before us.

II.

Factual and Procedural History
Plaintiff George McNulty, a Pennsylvania citizen, was injured on June 24, 2013 while

working with a rented, movable vac unit at 1 Sinter Road, Fairless Hills, Pennsylvania. Compl.
at ¶¶ 1, 61, 109, 113. Defendant KMLT was a tenant in the property which is owned by
defendants U.S. Steel, USX, and USS. Id. at ¶ 60. Notably, defendants U.S. Steel, USX, and
USS are Pennsylvania corporations. Id. at ¶¶ 21-23. McNulty initiated his first civil action in
the Philadelphia County Court of Common Pleas against Auchter and KMLT by a Writ of
Summons on March 3, 2015. Mot. at ¶ 2. He instituted a second civil action in the same court
against Guzzler, Vactor, FS, FS Solutions, Vacuum, Navistar, Navistar Int’l, International Truck,
Auchter, and USX, also by a Writ of Summons, on June 17, 2015. Id. at ¶ 3. On August 31,
2015, McNulty filed a Consolidated Civil Action Complaint, and a week later he filed a Motion
to Consolidate, both in the Philadelphia County Court of Common Pleas. Id. at ¶¶ 6-7. Most
relevant for our analysis, McNulty brought a claim of negligence against U.S. Steel, USX, and
USS alleging that as owners of the property these defendants failed to (1) warn others of
dangerous property conditions, (2) competently exercise control over said property, or (3)
adequately inspect and correct dangerous conditions on the property. Compl. at ¶¶ 133-141.
Counsel for defendants KMLT, USX, U.S. Steel, and USS filed notices of removal in
both actions by September 30, 2015. Mot. at ¶¶ 15-16. Attached to these notices were emails
from attorneys for the remaining defendants consenting to the removal of the cases to this court.
See Notice of Removal at Ex. C and Ex. G. McNulty now moves to remand this case to state
court for two reasons. First, he asserts that defendants’ notices were defective because they were
not joined by all defendants. Mot. at ¶¶ 27-32. Second, he claims that we do not have diversity

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jurisdiction over this matter pursuant to 28 U.S.C. § 1332 since he and three corporate
defendants are citizens of Pennsylvania.

III.

Legal Standard
A defendant may remove to federal court a civil action originally filed in state court when

the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). But
§ 1441 is strictly construed against removal “so that the Congressional intent to restrict federal
diversity jurisdiction is honored.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396
(3d Cir. 2004). The defendant bears the burden of establishing removal jurisdiction and
complying with all pertinent procedural requirements. Boyer v. Snap-On Tools Corp., 913 F.2d
108, 111 (3d Cir. 1990). A plaintiff may file a motion for remand within thirty days after the
filing of a notice of removal. 28 U.S.C. § 1447. Following a motion to remand, the removing
party has the burden to “establish the propriety of removal, and all doubts as to the existence of
federal jurisdiction must be resolved in favor of remand.” Lumbermans Mut. Cas. Co. v.
Fishman, No. 99–929, 1999 WL 744016, at *1 (E.D. Pa. Sep. 22, 1999) (citing Batoff v. State
Farm Ins. Co., 977 F.2d 848, 851 (3d Cir.1992)).

IV.

Discussion
A.

Notice of Removal

McNulty first argues that the defendants’ notices of removal were defective, necessitating
remand to state court. We find that the notices of removal were not defective as it was
accompanied by the written consent of agents for all defendants.
Defendants must file for removal within thirty days of the service of the complaint. 28
U.S.C. § 1446 (b)(1). Section 1446 also requires that all defendants in a case must consent to the

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removal petition. See 28 U.S.C. § 1446 (b)(2)(A); Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.
1985). This requirement is known as the “unanimity rule.” Balazik v. Cnty. of Dauphin, 44 F.3d
209, 213 (3d Cir. 1995). Defendants satisfy the “unanimity rule” when there is “some timely
filed written indication from each defendant, or some person or entity purporting to formally act
on its behalf…that it has actually consented to such action.” Ogletree v. Barnes, 851 F. Supp.
184, 188 (E.D. Pa.1994). Courts generally do not require all defendants to sign the removal
petition itself, but they do require some form of “unambiguous written evidence of consent to the
court in timely fashion.” Gucciardi v. Bonide Products, Inc., No. 12-932, 2012 WL 1694426, at
*2 (E.D. Pa. May 15, 2012) (Buckwalter, J.) (emphasis in original) (internal citations omitted).
An email communicating consent to removal that is attached to the notice of removal can be
accepted as unambiguous written consent. Zelma v. Toyota Financial Services Americas Corp.,
No. 13-2698, 2013 WL 6858965, at *4 (D.N.J. Dec. 23, 2013). Failure to comply with the
“unanimity rule” is a procedural defect under U.S.C. § 1447 (c) and can be cause in itself for
remand. Lewis, 757 F.2d at 68.
Here, counsel for defendants KMLT, USX, U.S. Steel, and USS filed notices of removal
in both actions by September 30, 2015 -- thirty days after McNulty filed the consolidated
complaint. Mot. at ¶¶ 15-16. Attached to these notices were emails from attorneys for the
remaining defendants consenting to the removal of the cases to this court. See Notice of
Removal at Ex. C and Ex. G. These emails constitute unambiguous written consent required by
the “unanimity rule.” Thus, we find no procedural defect in the notice of removal.

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B.

Fraudulent Joinder

McNulty next argues that remand is warranted because we do not have diversity
jurisdiction over this matter pursuant to 28 U.S.C. § 1332 since he and three of the corporate
defendants are citizens of Pennsylvania.
When removal is based upon diversity of citizenship, federal courts only have jurisdiction
if the amount in controversy exceeds $75,000 and there is complete diversity between the parties
-- meaning that the plaintiff must be of diverse state citizenship from every defendant. See 28
U.S.C § 1332; see also Grand Union Supermarkets of the Virgin Islands, Inc. v. H.E. Lockhart
Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003). One exception to the requirement for complete
diversity in removal matters is the doctrine of fraudulent joinder. In re Briscoe, 448 F.3d 201,
216 (3d Cir. 2006). Defendants may remove an action if they can “establish that the non-diverse
defendants were fraudulently named or joined solely to defeat diversity jurisdiction.” Id.
(internal quotes omitted). In order to prove that a plaintiff’s joinder is fraudulent, a defendant
must prove that “there is no reasonable basis in fact or colorable ground supporting the claim
against the joined defendant, or no real intention in good faith to prosecute the action against the
defendants or seek a joint judgment.” Batoff, 977 F.2d at 851. The removing party carries a
heavy burden of persuasion in order to make this showing, a burden our Court of Appeals has
noted is “logical…for removal statutes are to be strictly construed against removal and all doubts
should be resolved in favor of remand.” Id. at 851. But if a court finds that a party is
fraudulently joined, that party’s joinder cannot defeat removal. In re Diet Drugs (Phentermine,
Fenfluramine, Dexfenfluramine) Products Liab. Litig., 220 F. Supp. 2d 414, 419. (E.D. Pa.
2002).

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McNulty has brought a negligence claim against U.S. Steel, USX, and USS, the owners
of the property where he was allegedly injured. Compl. at ¶¶ 133-141. He alleges that they
permitted a dangerous or unsafe condition or activity to exist on the property that was the
proximate cause of his injuries. Id. To prevail in a negligence action under Pennsylvania law,
McNulty must establish that the defendants “(1) owed a duty of care to [him], (2) that duty was
breached, (3) the breach resulted in [his] injury, and (4) [he] suffered an actual loss or damages.”
Hymes v. Great Lakes Warehouse, No. 11-248, 2014 WL 1022462, at *3 (E.D. Pa. Mar. 17,
2014) (citing Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009)).
Generally, out-of-possession landlords are not responsible for injuries suffered by a business
invitee on the leased premises, and thus have no duty in such cases. See Henze v. Texaco, Inc.,
508 A.2d 1200, 1202 (Pa. Super. Ct. 1986); see also Dinio v. Goshorn, 270 A.2d 203, 206 (Pa.
1969). This rule is subject to exceptions, as an out-of-possession landlord may incur liability:
(1) if he has reserved control over a defective portion of the
demised premises; (2) if the demised premises are so dangerously
constructed that the premises are a nuisance per se; (3) if the lessor
has knowledge of a dangerous condition existing on the demised
premises at the time of transferring possession and fails to disclose
the condition to the lessee; (4) if the landlord leases the property
for a purpose involving the admission of the public and he neglects
to inspect for or repair dangerous conditions existing on the
property before possession is transferred to the lessee; (5) if the
lessor undertakes to repair the demised premises and negligently
makes the repairs; or (6) if the lessor fails to make repairs after
having been given notice of and a reasonable opportunity to
remedy a dangerous condition existing on the leased premises.
Henze, 508 A.2d at 1202 (internal citations and quotations omitted).
Here, McNulty was allegedly injured by a vac unit rented by defendant KMLT from
defendant Auchter for use at the property located at 1 Sinter Road, Fairless Hills, Pennsylvania,
Compl. at ¶¶ 65-66, 113, when his right arm was sucked into the unit’s hose resulting in severe

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injuries that required emergency surgery. Id. at ¶ 109. The vac unit in question was not part of
the premises at 1 Sinter Road, but was instead a movable machine that the lessees of the property
had rented. It is undisputed that defendants U.S. Steel, USX, and USS were out-of-possession
landlords as they attached the operative lease renting the property to KMLT to the notice of
removal. See Notice of Removal at Ex. F. Moreover, there is no evidence that U.S. Steel, USX,
or USS had anything to do with the rental or use of the vac unit that allegedly caused McNulty’s
injuries. Finally, none of the previously listed exceptions to the general rule that out of
possession landlords are not responsible for injuries suffered by a business invitee on the leased
premises apply to this case.
We therefore find that there is no reasonable basis in fact or colorable ground supporting
the claim against defendants U.S. Steel, USX, and USS. We also find that the doctrine of
fraudulent joinder applies to this case, and therefore the lack of complete diversity among the
parties does not defeat removal. Further, we will dismiss with prejudice non-diverse defendants
U.S. Steel, USX, and USS from this matter on the basis of fraudulent joinder.

V.

Conclusion
Defendants have satisfied their burden in showing that their notice of removal was free of

procedural defects and that non-diverse defendants U.S. Steel, USX, and USS were fraudulently
joined in this case. We will therefore deny McNulty’s motion to remand these cases to the
Philadelphia County Court of Common Pleas and dismiss with prejudice non-diverse defendants
U.S. Steel, USX, and USS from this matter on the basis of fraudulent joinder.
BY THE COURT:
_/S/ STEWART DALZELL, J.

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