MELK v. PULTE HOME CORPORATION OF THE DELAWARE VALLEY

Filing 91

MEMORANDUM AND OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 8/23/17. 8/23/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RONALD MELK, individually and
as executor of the estate of
MARTHA MELK
v.
PULTE HOME CORPORATION OF THE
DELAWARE VALLEY, et al.

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CIVIL ACTION

NO. 16-5570

MEMORANDUM
Bartle, J.

August 23, 2017
Before the court is the motion of plaintiff Ronald

Melk individually and as executor of the estate of Martha Melk
to remand this action to the Court of Common Pleas of
Philadelphia County pursuant to 28 U.S.C. § 1447 on the ground
that the court lacks subject matter jurisdiction under 28 U.S.C.
§ 1332.
This action was originally filed by plaintiff in the
Court of Common Pleas of Philadelphia County against defendant
home construction company Pulte Home Corporation of the Delaware
Valley.

Plaintiff, a citizen of Pennsylvania, seeks damages for

personal injuries that he and his late wife sustained from mold
exposure resulting from water infiltration in the residence that
they had purchased from Pulte.

Pulte, a citizen of Michigan and

of Georgia, timely removed the action to this court on
October 25, 2016 based on diversity of citizenship and an amount

in controversy in excess of $75,000, exclusive of interest and
costs.

See 28 U.S.C. § 1332(a).
After obtaining leave of court Pulte filed a

third-party complaint on December 14, 2016, which it amended
later that same day, against five third-party defendants with
whom Pulte purportedly contracted to perform construction work
on the Melk residence.
During a telephone conference on May 16, 2017 between
the court and counsel, plaintiff’s counsel stated that he sought
to file an amended complaint.

The court permitted him to do so,

and thereafter on May 23, 2017 plaintiff filed an amended
complaint naming as defendants Nassau Construction Company,
Patrick McDermott Plastering, LLC, Archer Exteriors, Inc., Guzzo
Masonry, Inc., and All American Landscapes, LLC, in addition to
Pulte. 1
On July 7, 2017 plaintiff filed the instant motion to
remand on the ground that the court lacks subject matter
jurisdiction under 28 U.S.C. § 1332(a)(1).

Plaintiff, a citizen

of Pennsylvania, maintains that defendant Patrick McDermott
Plastering, LLC is also a citizen of Pennsylvania.

If plaintiff

is correct in this regard, subject matter jurisdiction is absent

1. On June 5, 2017 defendant Patrick McDermott Plastering, LLC
filed a third-party complaint against Paul McNenemy, Jose Ojeda,
and David Gahn, individuals with whom McDermott Plastering
purportedly contracted to install stucco in the Melk home.
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since the citizenship of plaintiff must be different from the
citizenship of all defendants.

Owen Equip. & Erection Co. v.

Kroger, 437 U.S. 365, 373-74 (1978).
At the time of the filing of the motion to remand, the
citizenship of Patrick McDermott Plastering, LLC was unclear. 2
Following a telephone conference with counsel, the court entered
an order on August 15, 2017 instructing Patrick McDermott
Plastering, LLC to file an affidavit stating the following:
(1) whether it is a corporation or limited liability company;
(2) if it is a corporation the affidavit shall identify its
state of incorporation and principal place of business; and
(3) if it is a limited liability company the affidavit shall set
forth the names and citizenship of its members.

The citizenship

of a corporation is determined by its state of incorporation and
by its principal place of business, while the citizenship of a
limited liability company is determined by the citizenship of
its members.

28 U.S.C. § 1332(c); Zambelli Fireworks Mfg. Co.

2. The amended complaint names Patrick McDermott Plastering,
LLC but the amended complaint refers to it as a corporation.
The amended complaint alleges that “Defendant, Patrick McDermott
Plastering, L.L.C., (‘McDermott’) is a Pennsylvania Corporation
with a principal place of business located at 2058 Glenwood
Avenue, Glenside, Pennsylvania 19038, which contracted with
Pulte to Perform [sic] the stucco lathe and window and door
flashing on the Melk residence.” Patrick McDermott Plastering,
LLC stated in its answer: “It is admitted that Defendant,
Patrick McDermott Plastering, LLC, is a Pennsylvania
Corporation. Its principal place of business is located at 2160
Pleasant Avenue, Glenside, PA[.]”
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v. Wood, 592 F.3d 412, 418 (3d Cir. 2010).

On August 18, 2017

Patrick McDermott Plastering, LLC filed an affidavit stating
that it is a limited liability company with one member who is a
citizen of Pennsylvania.
Diversity of citizenship between the original parties
is determined as of the time of the filing of the original
complaint.

Grupo Dataflux v. Atlas Global Group, L.P.,

541 U.S. 567, 575-76 (1920).

However, if new defendants are

added in an amended complaint, diversity of citizenship between
the plaintiff and the new parties against whom no claims were
made in the original complaint is determined at the time of the
filing of the amended complaint.

15 James Wm. Moore, et al.,

Moore’s Federal Practice § 102.16(2)(b)(iii) (3d ed. 2017).
Thus in order to determine whether diversity of citizenship
exists between the plaintiff and the new defendants added by the
amended complaint, we consider the citizenship of the plaintiff
and the citizenship of the new defendants the time of the filing
of the amended complaint.

Id.; see also Lewis v. Lewis,

358 F.2d 495, 502 (9th Cir. 1966).
At the time of the filing of the amended complaint,
both plaintiff and defendant Patrick McDermott Plastering, LLC
were citizens of Pennsylvania.

Accordingly, subject matter

jurisdiction does not exist, and the action will be remanded to
the Court of Common Pleas of Philadelphia County.
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