BOYD v. BURLINGTON COAT FACTORY OF PENNSYVANIA, LLC

Filing 12

MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 1/31/17. 1/31/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JESSIE BOYD,
Plaintiff,
CIVIL ACTION
No. 16-04990

v.
BURLINGTON COAT FACTORY OF
PENNSYLVANIA, LLC,
Defendant.
PAPPERT, J.

January 31, 2017
MEMORANDUM

Jessie Boyd sued Burlington Stores, Inc. (“Stores”) in state court after she tripped and fell
in a Burlington Coat Factory store. Boyd allegedly made a mistake when she filed suit—she
named Stores as defendant when she should have named Burlington Coat Factory of
Pennsylvania, LLC (“BCFP”). BCFP later removed the case and Boyd filed a motion to remand
alleging that the removal was untimely as it was filed more than thirty days after service of the
complaint. BCFP claims it timely removed the case because it filed the notice of removal within
thirty days of Boyd agreeing to correct the caption in state court to reflect BCFP’s proper name.
Because Boyd properly served BCFP under Pennsylvania law, BCFP was on notice of a
removable action at that time and the failure to remove the case within thirty days of this notice
violates 28 U.S.C. § 1446(b)(1), notwithstanding any error in the corporate designation. Boyd’s
motion to remand is granted.
I.
A.
Boyd was injured when she tripped and fell in a Burlington Coat Factory store in Upper
Darby, Pennsylvania. (Compl. ¶ 4, ECF No. 1, Ex. A.) She sued Stores for negligence in the
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Philadelphia County Court of Common Pleas. Boyd initiated the action by filing a praecipe for a
writ of summons on March 18, 2016, which she served on April 6, 2016 at the Burlington Coat
Factory store located at 424 Oregon Avenue in Philadelphia, Pennsylvania. (Notice of Removal
¶ 1, ECF No. 1.) Boyd then filed a complaint on June 8, 2016 and served it on Defendant the
next day. (Id. ¶ 2; ECF No. 8-7, Ex. D, at 6.)
On August 16, 2016 BCFP sent Boyd’s counsel a letter contending that Boyd sued the
wrong corporate entity and proposing a stipulation in which Boyd would agree to dismiss Stores
and substitute BCFP. (ECF No. 8-6, Ex. C at 2–3.) On August 17 Boyd’s counsel signed an
amended stipulation agreeing to substitute the corporate entities. He added, however, a provision
that would bar the new entity from raising a statute of limitations defense. (ECF No. 8-6, Ex. C,
at 5–6.) On August 23 BCFP countered Boyd’s proposal—BCFP agreed to the statute of
limitations waiver but requested, inter alia, that Boyd would not contest removal to federal court.
(Def.’s Resp., ECF No. 11, Ex. I.)
On September 16, 2016, after additional exchanges between the parties, Boyd’s counsel
stated that he would not agree to the removal waiver. (ECF No. 11, Ex. J.) BCFP responded by
signing the August 17 version of the stipulation (which Boyd’s counsel had already signed) and
filing the stipulation in the Court of Common Pleas on September 16, 2016. (ECF No. 8-7, Ex.
D, at 8.) BCFP filed its notice of removal on the same day. (ECF No. 1.)
BCFP removed this case over three months after it was served with the complaint. BCFP
nonetheless argues that removal was timely because the case was not removable until it was
properly named as a defendant—and this did not occur until Boyd’s counsel signed a stipulation
agreeing to substitute parties on August 17, 2016.

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B.
BCFP owns the Burlington Coat Factory store in Upper Darby where Boyd was injured.
(Answer, ECF No. 3, ¶¶ 2-3; Def.’s Resp., at 7.) BCFP also does business in Philadelphia at the
location where Boyd originally served BCFP, (Answer ¶ 3.), and it owns the fictitious names
Burlington Stores and Burlington Coat Factory. (Def.’s Resp., at 6.)
BCFP is a Pennsylvania Limited Liability Company. (Id.) Its sole member is Burlington
Coat Factory Warehouse Corporation (“BCFWC”). (Def.’s Resp., Ex. I.) BCFWC is a Delaware
Corporation with its principal place of business at 1830 Route 130 North, Burlington, New
Jersey. (Id.) Stores, the entity Boyd incorrectly named in her complaint, is a Delaware
corporation with its principal place of business at 1830 Route 130 North, Burlington, New
Jersey, the same principal place of business as BCFWC. (Def.’s Resp., at 7.)
II.
A defendant may remove “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “The party asserting
jurisdiction bears the burden of showing that at all stages of litigation the case is properly before
the federal court.” Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). A
plaintiff may challenge removal by moving to remand the case to state court. See 28 U.S.C. §
1447(c). Grounds for remand include: (1) lack of subject-matter jurisdiction or (2) a defect in
the removal procedures. See PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993) (citing 28
U.S.C. § 1447(c)). A motion to remand based on a defect “other than lack of subject matter
jurisdiction” must be filed within thirty days after the filing of the notice of removal. 28 U.S.C.
§ 1447(c). “The removal statute should be strictly construed and all doubts resolved in favor of
remand,” Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 346 (3d Cir. 2013) (quoting

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Brown v. Francis, 75 F.3d 860, 864–65 (3d Cir. 1996)); anything otherwise would curtail the
power of the state courts to decide actions properly before them, see Merrell Dow Pharms., Inc.
v. Thompson, 478 U.S. 804, 809 (1986).
III.
A defendant who wishes to remove a case to federal court must file a notice of removal
“within thirty days after the receipt by the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(b)(1). If the initial case is not removable as filed, the notice of
removal “may be filed within thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.” 28 U.S.C.
§ 1446(b)(3). The time to file a notice of removal does not begin to run until the defendant has
been officially summoned to appear in the action. See Murphy Bro., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 347 (1999). Thus, whether BCFP timely removed this action
depends on whether and when it was properly served.
Whether a defendant was properly served is a question of state law. See Shubert v.
Manheim Auctions, Inc., No. 09-3365, 2010 WL 624175, at *1 (E.D. Pa. Feb. 18, 2010). “Under
the Pennsylvania Rules Civil Procedure, an action against a corporation or similar entity ‘shall be
prosecuted . . . against the corporation or similar entity in its corporate name.’” Id. at *8 (citing
Pa. R. Civ. P. 2177). “Corporate name” means “any name, real or fictitious, under which a
corporation or similar entity was organized, or conducts business, whether or not such name has
been filed or registered.” Pa. R. Civ. P. 2176 (emphasis added). The purpose of this rule is to
“permit[ ] service on a business entity by the name under which it does business and advertises

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to the public.” Clark v. Wakenfern Food Corp., 910 A.2d 715, 718 (Pa. Super. Ct. 2006). The
Pennsylvania Rules allow service at “any office or usual place of business of the defendant,” Pa.
R. Civ. P. 402(a)(2)(iii), and by mail on an out-of-state defendant, Pa. R. Civ. P. 404(2).
Boyd served a writ of summons on Burlington Stores, Inc., d/b/a Burlington Coat Factory
at a store located at 424 Oregon Avenue in Philadelphia, Pennsylvania. BCFP admits that it does
business at this location, (Answer ¶ 2, ECF No. 3.), and that it owns the fictitious names
Burlington Stores and Burlington Coat Factory, (Def.’s Resp., at 6). Cf. Shubert, 2010 WL
624175, at *8. Accordingly, Boyd’s use of the fictitious names Burlington Stores and Burlington
Coat Factory “does not render service ineffective.” Id.; see Clark, 910 A.2d at 717–18 (holding
that corporate owner of Shop Rite was properly served, notwithstanding plaintiff’s error in
identifying the wrong corporate entity); see also Waugh v. Steelton Taxicab, 89 A.2d 527, 528
(1952) (“It would be strange indeed if the law would permit a person actually responsible for a
civil or criminal act to escape liability because the summons or warrant served on him named
him Richard Roe instead of John Doe.”).
Because Boyd properly served BCFP under Pennsylvania law, the time to remove the
case began to run when BCFP was served—not when Boyd agreed to substitute parties. Boyd’s
alleged failure to name the proper corporate entity did not deprive BCFP of notice of a
removable action.
An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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