GENTRY v. SIKORSKY AIRCRAFT CORPORATION et al

Filing 40

AMENDED MEMORANDUM AND/OR OPINION DENYING THE DEFENDANT'S MOTION TO REMAND AND GRANTING THE DEFENDANT'S MOTION TO STRIKE. SIGNED BY HONORABLE GENE E.K. PRATTER ON 4/22/2019. 4/22/2019 ENTERED AND COPIES E-MAILED.(sfl, )

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

ANGELA K. GENTRY, Individually,
And as Executrix of the Estate of
TROY LEE GENTRY, Deceased,
Plaintiff,

CIVIL ACTION

v.
SIKORSKY AIRCRAFT CORPORATION
et al.,
Defendants.

No. 18-1326

AMENDED MEMORANDUM
PRATTER,

J.

APRIL 22,

2019

Following a helicopter crash that killed her husband, Angela Gentry initiated this lawsuit
in Pennsylvania state court against a handful of companies that were allegedly responsible for the
helicopter's defects. The defendants removed the case to federal court, and Ms. Gentry now seeks
to remand.
Although Ms. Gentry has sought to cast a wide net in developing the record on this Motion
to Remand, the primary issues before the Court are narrow: (1) whether the Court has subject
matter jurisdiction, and (2) whether the case was properly removed from state court. There is some
confusion among the parties, however, about how the Court determines the defendants'
citizenship-which is a necessary component of the Court's jurisdiction and removal analysis.
The test for ascertaining corporate citizenship is set forth in the Supreme Court's decision
in Hertz Corp. v. Friend, 559 U.S. 77 (2010). Under Hertz, a corporation is a citizen of both (1)
its state of incorporation, and (2) the state where the company keeps its "nerve center," i.e., the
sole location where the corporation's high-level officers direct, control, and coordinate the

corporation's activities. Ms. Gentry focuses her citizenship analysis on each defendant's corporate
1

activities with respect to this action. That approach misreads Hertz, conducting an analysis more
akin to specific personal jurisdiction, which requires that a suit arise out of or relate to a
defendant's contacts with the forum. See, e.g., Bristol-Myers Squibb Co. v. Superior Court of
California, San Francisco Cty., 137 S. Ct. 1773 (2017).

As set forth in this Memorandum, after a proper application of Hertz, the Court concludes
that it has diversity subject matter jurisdiction over this case and that removal was properly
executed. The Motion to Remand is therefore denied. Separately, the Court also grants the
defendants' Motion to Strike an attorney affidavit included in Ms. Gentry's Supplement in Support
of the Motion to Remand.
BACKGROUND

On September 8, 2017, Troy Lee Gentry, one half of the popular country music duo
Montgomery Gentry, was killed in a helicopter crash at Flying W Airport in New Jersey. The
crash occurred after the aircraft's throttle cable jammed, resulting in engine failure. Although the
pilot attempted a maneuver that could have allowed the helicopter to land safely, various
mechanical issues undermined the emergency landing. All onboard died in the crash.
No doubt unbeknownst to Mr. Gentry, about a year prior to the crash, the throttle cable in
that particular helicopter-a Schweitzer Model 269C-had broken. The replacement parts were
not directly available from the manufacturer, and so the owner of the at-issue helicopter (who is
not a party to this action) contracted with a third-party (also not a party to this action) to
manufacture a replacement throttle cable.

The helicopter involved in the accident operated

normally between November 2016 and September 2017, up until the crash that killed Mr. Gentry.
After her husband's death, Angela Gentry sued the following entities or company names:

2

"Sikorsky Aircraft Corporation"

I.

Sikorsky Aircraft Corporation designs and manufactures helicopters and other aircrafts,

including the at-issue model, the Model 269. 1 The complaint alleges that Sikorsky Aircraft
Corporation is incorporated in Connecticut and has its principal place of business in Pennsylvania.
The defendants dispute both of these allegations and have submitted affidavits and evidence
showing that Sikorsky Aircraft Corporation is incorporated in Delaware and has its principal place
of business and corporate headquarters in Connecticut. According to Ms. Gentry, Sikorsky
Aircraft Corporation engages in manufacturing operations in Pennsylvania, including operations
relevant to the Model 269 helicopter.
II.

"Keystone Helicopter Corporation," "Sikorsky Global Helicopters, Inc.," and "Keystone
Helicopter Corporation (n/k/a Sikorsky Global Helicopters, Inc.)"
Keystone Helicopter Corporation was incorporated in Pennsylvania on July 31, 1961.

On October 3, 2011, Keystone Helicopter Corporation changed its name, via articles of
amendment, to Sikorsky Global Helicopters, Inc.

On January 1, 2015, Sikorsky Global

Helicopters, Inc. merged with Helicopter Support, Inc. 2 Helicopter Support, Inc. was the surviving
entity; it is incorporated in Connecticut and has its principal place of business in Connecticut.
After the merger, Helicopter Support, Inc. registered the fictitious name "Sikorsky Global

The actual Model 269 helicopter that crashed was produced by Schweitzer Helicopter
Corporation in 2000. Sometime between 2000 and 2017, Schweitzer sold the entire Model 269
product line to Sikorsky Aircraft Corporation. Since then, Sikorsky Aircraft Corporation has had
"sole airworthiness responsibility for the Model 269" helicopter and its component parts. Compl.
~21.
2

Helicopter Support, Inc. is not named as a defendant in the complaint. However, because
the complaint does name several entities that would either eventually merge into or are otherwise
related to Helicopter Support, Inc., the Court discusses Helicopter Support, Inc.'s citizenship
below.

3

Helicopters, Inc." m Pennsylvania, pursuant to the Pennsylvania Fictitious Names Act, 54
Pa.C.S.A. § 301. 3

III.

"Keystone Helicopter Holdings, Inc." and "Keystone Helicopter Holdings, Inc., A
Lockheed Martin Company"
The complaint alleges that Keystone Helicopter Holdings, Inc. is a Pennsylvania
corporation with its principal place of business in Pennsylvania. But the defendants assert-and

submit evidence showing-that Keystone Helicopter Holdings, Inc. is a holding company
incorporated in Delaware with its principal place of business in Connecticut. Keystone Helicopter
Holdings, Inc filed a "foreign registration statement" with the Pennsylvania Department of State,
which allows the company to do business in Pennsylvania. According to the defendants, Keystone
Helicopter Holdings, Inc.' s sole purpose is to hold other companies. It is not an operating company
and instead allegedly owns all or a portion of three other companies. It is not clear from the record
what companies Keystone Helicopter Holdings, Inc. owns.
According to the complaint, Keystone Helicopter Holdings, Inc., A Lockheed Martin

Company is a Pennsylvania corporation with its principal place of business in Pennsylvania. But
the record shows that Keystone Helicopter Holdings, Inc. registered the fictitious name "Keystone
Helicopter Holdings, Inc., A Lockheed Martin Company" in Pennsylvania, pursuant to the
Pennsylvania Fictitious Names Act, 54 Pa.C.S.A § 301.

3

"Keystone Helicopter Corporation (n/k/a Sikorsky Global Helicopters, Inc.)" does not
appear to have any separate corporate existence from Keystone Helicopter Corporation and
Sikorsky Global Helicopters, Inc. To attempt to establish the existence of "Keystone Helicopter
Corporation (n/k/a Sikorsky Global Helicopters, Inc.)," Ms. Gentry cites to a March 8, 2018
internet "search" for the "Business Entity Details" of Sikorsky Global Helicopters, Inc., as
identified on the Pennsylvania Department of State website. See Mot. to Remand, Ex. E (Sikorsky
Global Helicopters, Inc. Business Entity Details Print Screen). But the "search" only shows that
"Keystone Helicopter Corporation" was a "prior name," and the company's "current name," at
the time of its merger, was "Sikorsky Global Helicopters, Inc." Id. (emphasis added). The
document also reflects the company's "status" as "merged." Id.
4

PROCEDURAL HISTORY

On March 29, 2018, the defendants removed this case to federal court pursuant to the
Court's diversity and federal question jurisdiction. 4 Ms. Gentry timely moved to remand. On
November 9, 2018, months after the close of briefing on the Motion to Remand, Ms. Gentry moved
for leave to file two sur-reply submissions in support of the remand motion. 5 After the defendants
filed a brief in opposition, the Court denied Ms. Gentry's motion for leave and struck the sur-reply
submissions from the record, holding that the materials were untimely and, in any event, did not
respond to a new argument (as is required of sur-replies).
The Court held oral argument on the Motion to Remand on December 13, 2018. After
argument, the Court directed the parties to prepare proposals for limited jurisdictional discovery,
to assist the Court in determining the principal place of business, i.e., nerve center, of Sikorsky
Aircraft Corporation. The parties submitted competing letters, and the Court ordered Ms. Gentry
to select one of two limited approaches to jurisdictional discovery, each of which focused
specifically on Sikorsky Aircraft Corporation's nerve center-as per the Court's instructions

4

This case was initially assigned to former Eastern District of Pennsylvania Chief Judge
Lawrence Stengel. Prior to Chief Judge Stengel's retirement, the case was reassigned on July 17,
2018. See Doc. No. 11.
5

On November 1, 2018, Ms. Gentry filed, without leave of the Court, a new brief and two
new exhibits in support of the Motion to Remand. Doc. No. 14. The brief principally described
the exhibits and how they relate to the motion. The first exhibit, Exhibit 0, included the declaration
of attorney Jacklyn Fetbroyt, describing the corporate structures and interrelationships of the
defendants, as well as materials supporting Ms. Fetbroyt's declaration. The second exhibit, Exhibit
P, contained photocopies of business cards from various individuals who participated in the
investigation of the helicopter crash. After the defendants filed a letter with the Court arguing that
the new brief and exhibits were filed improperly, Ms. Gentry sought leave from the Court to file
the materials.

5

during oral argument. 6 Ms. Gentry moved to substantially expand the scope of jurisdictional
discovery, but the Court denied Ms. Gentry's request. The Court ordered the parties to conduct
jurisdictional discovery within the previously defined parameters and, upon the completion of
jurisdictional discovery, to file "any supplemental briefing regarding the results of jurisdictional
discovery." Doc. No. 30.
After completing jurisdictional discovery, the parties each submitted a supplement to the
Motion to Remand briefing. In addition to describing and attaching materials resulting from
jurisdictional discovery, Ms. Gentry's supplement also included Jacklyn Fetbroyt's declaration,

6

The Order provided the following instructions:

"By no later than January 14, 2019, Plaintiff Angela Gentry shall select, and submit to the Court a
letter confirming said selection of, one of the following two methods for conducting jurisdictional
discovery:
,/'

a. Defendant Sikorsky Aircraft Corporation shall designate and P'rovide a knowledgeable
officer, director, or managing agent to testify on its behalf, as contemplated by Federal
Rule of Civil Procedure 30(b)(6), for a video deposition, to be taken by counsel for
Plaintiff for up to six (6) hours. The scope of this deposition shall only be the
determination and documentation of the citizenship of Sikorsky Aircraft Corporation
by way of locating its "nerve center," i.e., Sikorsky Aircraft Corporation's "actual
center of direction, control, and coordination." Hertz Corp. v. Friend, 559 U.S. 77, 93
(2010); or
b. Defendant Sikorsky Aircraft Corporation shall respond to 15 interrogatories, including
sub-parts and including the identification of pertinent documents, submitted by counsel
for Plaintiff. The scope of these interrogatories shall only be the determination and
documentation of the citizenship of Sikorsky Aircraft Corporation by way of locating
its "nerve center," i.e., Sikorsky Aircraft Corporation's "actual center of direction,
control, and coordination." Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010). In addition,
Defendant Sikorsky Aircraft Corporation shall designate and provide a knowledgeable
officer, director, or managing agent to testify on its behalf, as contemplated by Federal
Rule of Civil Procedure 30(b)(6), for a video deposition, to be taken by counsel for
Plaintiff for up to three (3) hours. The scope of this deposition shall be identical to the
scope of the interrogatories."
Doc. No. 26 (footnotes omitted).
6

which the Court had previously stricken from the record as part of Ms. Gentry's untimely sur-reply
submissions. 7 The defendants again moved to strike the Fetbroyt Declaration from the record.
That Motion to Strike and Ms. Gentry's Motion to Remand have been fully briefed and are
ripe for decision.
DISCUSSION

Ms. Gentry seeks remand, arguing that (1) removal was defective and (2) the Court lacks
subject matter jurisdiction. Ms. Gentry also seeks costs, attorneys' fees, and expenses for the
defendants' allegedly improper removal. For their part, the defendants contend that removal was
proper, because the Court has subject matter jurisdiction (under either a diversity or federal
question theory), all properly named defendants consented to removal, and there are no properly
named "forum defendants." The defendants also seek to strike an affidavit submitted in support
of Ms. Gentry's supplemental brief regarding jurisdictional discovery.
First, the Court will address the defendants' Motion to Strike. Second, the Court will
analyze the citizenship of the defendants, which is a prerequisite for determining whether the Court
has diversity subject matter jurisdiction and whether removal was proper. Third, the Court will
determine whether it has subject matter jurisdiction. And fourth, the Court will address whether
removal was proper, i.e., whether the properly named defendants unanimously consented to
removal and whether any properly named defendant violates the forum defendant rule.
Because the Court concludes that removal was proper and there is diversity subject matter
jurisdiction, the Motion to Remand is denied. The Court also grants the defendants' Motion to
Strike.

7

See supra n.5; compare Supp. in Support of Mot. to Remand, Ex. H (Fetbroyt Deel.) with
Doc. Nos. 14, 19 (sur-reply submissions, including Fetbroyt Deel.); cf Doc. Nos. 22, 23 (Order
and Memorandum denying leave to file sur-reply and striking sur-reply materials).
7

I.

The Defendants' Motion to Strike

Even though the Court previously struck attorney Jacklyn Fetbroyt's declaration from the
record as part of an untimely and improperly filed sur-reply submission, Ms. Gentry included the
declaration again as part of her post-jurisdictional discovery supplemental briefing.

The

defendants seek to strike the Fetbroyt Declaration again, this time as being beyond the scope of
jurisdictional discovery. The Court will grant the Motion to Strike.
The Fetbroyt Declaration was inappropriately included in Ms. Gentry's post-jurisdictional
discovery submission. The Court's January 8, 2019 Order regarding jurisdictional discovery
explicitly set forth the restricted parameters for jurisdictional discovery, limiting the effort to "the
determination and documentation of the citizenship of Sikorsky Aircraft Corporation by way of
locating its 'nerve center,' i.e., Sikorsky Aircraft Corporation's 'actual center of direction, control,
and coordination.' Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010)." Doc. No. 26; see supra n.6.
And, in the Court's Order denying Ms. Gentry's request to expand jurisdictional discovery, the
Court defined the scope of any supplemental briefing that the parties might file after finishing
jurisdictional discovery: "[T]he parties shall file by February 25, 2019 any supplemental briefing
regarding the results of jurisdictional discovery. Further briefing on this issue may only be

permitted by and at the request of the Court." Doc. No. 30 (emphasis added). Therefore, Ms.
Gentry is at best incorrect when she argues that "[t]his Court gave no restrictions on the type
evidence that could be submitted in further support of remand." Opp. to Motion to Strike at p. 1.
The Fetbroyt Declaration was not the result of jurisdictional discovery on the limited
subject of Sikorsky Aircraft Corporation's nerve center. Rather, it was sworn (and originally
submitted to the Court) months before the Court even ordered jurisdictional discovery. See Supp.
in Support of Mot. to Remand, Ex. H at p. 9 (Fetbroyt Dec.) (showing declaration was dated

8

October 30, 2018). Simply reading the declaration demonstrates that it discusses at length the
places of business of entities other than Sikorsky Aircraft Corporation, putting its contents well
beyond the narrow scope of jurisdictional discovery. Ms. Gentry's attempt to surreptitiously
include the Fetbroyt Declaration in the record-after the Court already rejected her first try at
submitting the declaration as untimely and procedurally out of line-is, to be generous, improper.
The Motion to Strike is granted, such that the Fetbroyt Declaration, all references to it, and any
reliance on it, is stricken.

II.

Determining Corporate Citizenship
A defendant's citizenship bears on the propriety ofremoval and the Court's subject matter

jurisdiction only in certain circumstances.

As is relevant here, in scrutinizing removal and

jurisdiction, courts must assess the citizenship of "real and substantial parties to the controversy,"
and need not determine the citizenship of "nominal or formal parties[.]" Johnson v. SmithKline

Beecham Corp., 724 F.3d 337, 358 (3d Cir. 2013) (citations and quotations omitted). 8 The
removing party has the burden of persuasion to prove that a party is nominal. See Steel Valley

Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (stating that it is the
defendant's burden to establish that a party is nominal). 9

8

See also Balazik v. Cty. of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995) ("The unanimity
rule may be disregarded where: (1) a non-joining defendant is an unknown or nominal party[.]")
(citations omitted); Yakitori Boy, Inc. v. Starr Indem. & Liab., Co., No. 18-4094, 2019 WL 199904,
at *5 (E.D. Pa. Jan. 14, 2019) (holding that defendant "is a nominal party and his citizenship status
should not affect this Court's exercise of diversity jurisdiction, nor should it affect removal under
28 u.s.c. § 1441(b)").
9

In addition to arguing that several of the defendants are nominal parties, the defendants
also assert that removal was proper because several defendants were fraudulently joined.

"[J]oinder is fraudulent 'where 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 defendant or seek a joint judgment."' Boyer v. Snap-on Tools Corp., 913
F.2d 108, 111 (3d Cir. 1990) (quoting Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d
Cir. 1985)). Additionally, a line of cases, to which the Third Circuit Court of Appeals and this
9

To determine the citizenship of a corporation, whether for purposes of diversity under §
1332 or for removal under§ 1441(b), courts use the familiar test announced by the Supreme Court
in Hertz Corp. v. Friend, 559 U.S. 77 (2010). 10 Under Hertz, a corporation is a citizen of its state
of incorporation and its principal place of business, i.e., its "nerve center." Id. at 80-81. A nerve
center is "the place where the corporation's high level officers direct, control, and coordinate the
corporation's activities," which is typically "found at a corporation's headquarters." Id.

A

corporation's nerve center "is a single place," id. at 93, meaning a corporation's nerve center is
static, regardless of the conduct at issue in a particular case.

Ms. Gentry, in her Motion to Remand, misinterprets the Hertz test. She argues at length
that "removal is improper because the Sikorsky defendants' nerve center with respect to this series
of helicopters is in Pennsylvania." Mot. to Remand at 13-14 (emphasis added) (cleaned up); see

Court have cited approvingly, indicates that joinder may be fraudulent where a defendant can prove
that "plaintiffs have falsely alleged [the defendants'] Pennsylvania citizenship" creating "'outright
fraud in the plaintiff's pleadings of jurisdictional facts."' Id. (quoting B., Inc. v. Miller Brewing
Co., 663 F.2d 545, 549 (5th Cir. 1981)); see also Pennsylvania Employees Benefit Tr. Fundv. Eli
Lilly & Co., No. 07-2057, 2007 WL 2916195, at *6 n.10 (E.D. Pa. Oct. 5, 2007) ("As the Court of
Appeals for the Fifth Circuit has held, and the Third Circuit Court of Appeals has
acknowledged, joinder of a defendant is also fraudulent where there is 'outright fraud in the
plaintiffs pleadings of jurisdictional facts.'") (quoting Miller Brewing Co., 663 F.2d at 549).
The Court need not conduct any fraudulent joinder analysis here because the non-nominal
defendants complied with the requirements for removal and satisfy the components of diversity
subject matter jurisdiction. Although the Court does not decide the issue, however, it notes that
Ms. Gentry's complaint inaccurately describes the places of incorporation of multiple defendants,
facts that are easily ascertained via public filings. See infra at pp. 17, 19-22. At times, Ms.
Gentry's jurisdictional allegations are inconsistent with even the evidence included in the exhibits
she attached to her Motion to Remand. See id.
10

Hertz applies when determining the citizenship of a corporation for diversity jurisdiction
purposes, see 559 U.S. at 80-81, as well as when determining the citizenship of a corporation for
removal purposes. See Monroe v. SmithKline Beecham Corp., No. 10-02140, 2010 WL 2606682,
at *2 (E.D. Pa. June 25, 2010) (applying Hertz "to decide whether [the defendant] has violated §
1441 (b)' s prohibition against removal from the state court in which a defendant is a citizen");
Lewis v. Lycoming, No. 11-6475, 2012 WL 2422451, at *6-7 (E.D. Pa. June 27, 2012) (same).

10

also Reply at 2-3 (arguing same). But as Hertz makes clear, the nerve center analysis is not case-

specific: A corporation has one nerve center for all cases. Hertz, 559 U.S. at 93; see also Cent.

W. Virginia Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 104 (4th Cir. 2011) (under
Hertz, "the corporation's 'nerve center,' is, in all cases, the principal place of business") (emphasis

added).
Ms. Gentry appears to confuse the Hertz nerve center test with the Supreme Court's
analysis for specific personal jurisdiction, which is '"case-linked.'" Bristol-Myers Squibb Co. v.
Superior Court ofCalifornia, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (quoting Goodyear
Dunlop Tires Operations, SA. v. Brown, 564 U.S. 915, 919 (2011)). The two analyses are separate

and unrelated, and this error proves fatal to Ms. Gentry's assessment and purported use of the
defendants' citizenship. See, e.g., Estrada v. Gate Gourmet, Inc., No. 17-1100, 2017 WL 2468773,
at *2 (C.D. Cal. June 6, 2017) ("The Court agrees with Defendant that Plaintiff seems to be
confusing the test for 'minimum contacts' to establish personal jurisdiction over a defendant, with
the test from Hertz Corp. v. Friend for establishing the citizenship of the parties for purposes of
diversity jurisdiction. A corporation may have only one principal place of business for purposes
of this test, the so-called 'nerve center' or 'brain' of the company. This is the company's 'place
of actual direction, control, and coordination."') (citations omitted).
Applying the Hertz nerve center test, the Court addresses each defendant's citizenship in
tum. The defendants are grouped in two categories: (1) nominal parties and (2) real and substantial
parties.

11

A. Nominal Parties
Nominal parties have "no actual interest in the outcome of the litigation[.]" Johnson, 724
F.3d at 359; see also Rumberger v. Ins. Co. ofN Am., 952 F.2d 764, 767 (3d Cir. 1991) ("Nominal
parties are generally those without a real interest in the litigation.") (citation omitted). They "tend
to be formal parties without any stake in the outcome of the litigation, such as a now-extinct
corporation that has been entirely dissolved into another, surviving corporation." Bancorp, Inc. v.
Yaron, No. 14-7159, 2015 WL 4876330, at *2 (E.D. Pa. Aug. 14, 2015). The complaint names

four nominal parties as defendants.
1. "Keystone Helicopter Corporation" and "Keystone
Corporation (n/k/a Sikorsky Global Helicopters, Inc.)"

Helicopter

Keystone Helicopter Corporation is a "now-extinct corporation," making it a quintessential
nominal party. Id.

According to the declaration of Jerry Meshell, Tax Counsel for Sikorsky

Aircraft Corporation, after incorporating in Pennsylvania in 1961, Keystone Helicopters
Corporation was renamed Sikorsky Global Helicopters, Inc. in 2011, which then merged into the
Connecticut corporation Helicopter Support, Inc. in 2015. See March 27, 2018 Meshell Deel. at
~~

5-7; see also March 27, 2018 Meshell Deel., Ex. 1 (Articles of Amendment - Domestic

Corporation) (showing that Keystone Helicopters Corporation was renamed "Sikorsky Global
Helicopters, Inc."); March 27, 2018 Meshell Deel., Ex. 2 (Articles/Certificate of Merger) (showing
merger of Sikorsky Global Helicopters, Inc. into Helicopter Support, Inc.); Motion to Remand,
Ex. E (Sikorsky Global Helicopters, Inc. Business Entity Details Print Screen) (showing Sikorsky
Global Helicopters, Inc.'s status as "merged"); Supp. in Support of Mot. to Remand, Ex. B
(Meshell Depo. Tr.) at pp. 17-18, 31-32 (describing merger).11

11

The transcript of Mr. Meshell's deposition is attached as Exhibit B to Ms. Gentry's
Supplement in Support re Motion to Remand. See Supp. in Support of Mot. to Remand, Ex. B.
12

After the merger, Helicopter Support, Inc. "stepped into [Sikorsky Global Helicopters
Inc.'s] shoes." SmithKline Beecham Corp., 724 F.3d at 359; see also March 27, 2018 Meshell
Deel., Ex. 2 (Articles/Certificate of Merger) (stating that only Helicopter Support, Inc. survived
the merger); Conn. Gen. Stat. Ann. § 34-616 (listing the effects of merger agreements under
Connecticut law). 12 Keystone Helicopters Corporation changed its name, merged into Helicopter
Support, Inc., and has no continued existence, making it a nominal party in this litigation. See
SmithKline Beecham Corp., 724 F.3d at 359 (Because a pre-merger company's "'debts, liabilities

and duties' now lie with [the surviving entity]," the pre-merger company "has no actual interest in
the outcome of the litigation, making it a 'nominal party."') (citations omitted). As a result,
Helicopter Support, Inc., and not Keystone Helicopters Corporation, has a real and substantial
interest in this litigation. Although Keystone Helicopters Corporation "may technically still be a
Pennsylvania citizen, we must disregard its citizenship for purposes of establishing diversity
jurisdiction" and for all other removal-related purposes. Id.; see also id. at 359 n.27. 13

Citations are based on the pagination indicated in the top right-hand comer of each page of the
deposition.
12

"When a merger becomes effective:
(1) The surviving entity shall continue to exist or come into existence;

(2) Each merging entity that is not the surviving entity shall cease to exist;
(3) All property of each merging entity shall vest in the surviving entity without
assignment, reversion or impairment;
(4) All liabilities of each merging entity shall be liabilities of the surviving entity;
(5) Except as otherwise provided by law, other than as provided in this chapter or the plan
of merger, all of the rights, privileges, immunities, powers and purposes of each
merging entity shall vest in the surviving entity[.]"
Conn. Gen. Stat. Ann. § 34-616.
13

To the extent the complaint names as a defendant the entity "Keystone Helicopter
Corporation (n/k/a Sikorsky Global Helicopters, Inc.)", the analysis for that entity is the same as
for Keystone Helicopter Corporation. See supra n.3.
13

2. "Sikorsky Global Helicopters, Inc."

Sikorsky Global Helicopters, Inc., like Keystone Helicopters Corporation, is a nominal
party. For the purposes of this litigation, Sikorsky Global Helicopters, Inc. has existed in two
separate iterations, neither of which makes it a real and substantial party. First, the corporation
Sikorsky Global Helicopters, Inc. (originally named Keystone Helicopter Corporation) merged
into Helicopter Support, Inc. Second, since the merger leaving Helicopter Support, Inc. as the
surviving company, Helicopter Support, Inc. registered the fictitious name "Sikorsky Global
Helicopters, Inc.," under the Pennsylvania Fictitious Names Act, 54 Pa.C.S.A § 301. Because
Sikorsky Global Helicopters, Inc. exists today only as a fictitious name, it is a nominal party with
no interest in the outcome of this litigation.
First, the now defunct corporation Sikorsky Global Helicopters, Inc., after its merger into
Helicopter Support, Inc., no longer exists. March 27, 2018 Meshell Deel.

at~

9; see supra at pp.

12-13. The corporation Sikorsky Global Helicopters, Inc., like Keystone Helicopter Corporation,
is therefore a nominal party and its citizenship has no bearing on the Court's analysis.
Second, Sikorsky Global Helicopters, Inc. also has a continued existence as a fictitious
name. After Sikorsky Global Helicopters, Inc. merged into Helicopter Support, Inc., Helicopter
Support Inc. registered the fictitious name "Sikorsky Global Helicopters, Inc." for use in
Pennsylvania. See March 27, 2018 Meshell Deel.

at~

10; see also March 27, 2018 Meshell Deel.,

Ex. 3 (Application for Registration of Fictitious Name). Ms. Gentry's complaint also appears to
acknowledge that "Sikorsky Global Helicopters, Inc." is a "fictitious name" for Helicopter
Support, Inc. See Compl. ~ 9 .14

14

"Defendant, Sikorsky Global Helicopters, Inc. is either a fictitious name or a separate legal
entity organized and existing under the laws of the Commonwealth of Pennsylvania, which name
is the operational moniker for Sikorsky and Keystone Helicopter operations ...." Compl. ~ 9.
14

Helicopter Support, Inc. 's registration of the fictitious name "Sikorsky Global Helicopters,
Inc." does not make the fictitious name a real and substantial party. It is of no moment that the
"Application for Registration of Fictitious Name" requests that the registrant, i.e., the fictitious
name entity, identify its "address, including number and street, if any, of the principal place of
business." March 27, 2018 Meshell Deel., Ex. 3 (Application for Registration of Fictitious Name).
Under Pennsylvania law, "[t]he use of a fictitious name does not create a separate legal entity, but
is merely descriptive of a person or corporation who does business under another name. The
business name is a fiction, and so too is any suggestion the business is a legal entity separate from
its owner." Burlington Coat Factory ofPa., LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010,
1024 (Pa. Super. 2015) (citations omitted)). In Burlington Coat Factory, the Superior Court of
Pennsylvania held that a fictitiously named entity was not "a separate entity" distinguishable from
the plaintiffs who registered the fictitious name. Id. at 1025; see also Parks v. Woodbridge Golf
Club, Inc., No. 11-0562, 2016 WL 8716606, at *5 (E.D. Pa. July 22, 2016) (Defendants "did not

create a separate entity by merely registering a fictitious name.").
Applying the same principle here, the fictitious name "Sikorsky Global Helicopters, Inc."
is not a "separate legal entity," but "is merely descriptive of a ... corporation who does business
under another name," i.e., Helicopter Support, Inc. Burlington Coat Factory, 126 A.3d at 1024.
Sikorsky Global Helicopters, Inc. has no stand-alone existence and no "stake in the outcome of
th[is] litigation" (or any litigation), thus making it a nominal party. Bancorp, Inc., 2015 WL
4876330, at *2; see also Smith v. Agresta, No. 04-5266, 2005 WL 950603, at *1 (E.D. Pa. Apr.
21, 2005) (rejecting motion to dismiss based on citizenship of fictitiously named defendant
because it "confuse[d] the determination of a corporation's citizenship with that of a registered
fictitious name"); Frey v. Grumbine 's RV, No. 10-1457, 2010 WL 3703803, at *3 (M.D. Pa. Sept.

15

15, 2010) ("[T]he presence of [a fictitious name for an entity] as a named defendant does not defeat
the court's diversity jurisdiction. It appears, both from the papers submitted by Plaintiff and the
affidavit from Defendants, that [the fictitious name for the entity] is not a separate business
entity[.]"); cf 28 U.S.C. § 1441(b)(l) ("In determining whether a civil action is removable on the
basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under
fictitious names shall be disregarded."). The real and substantial party, for the purposes of this
litigation, is Helicopter Support, Inc., and not its fictitious name, "Sikorsky Global Helicopters,
Inc." 15

3. "Keystone Helicopter Holdings, Inc., A Lockheed Martin Company"
"Keystone Helicopter Holdings, Inc., A Lockheed Martin Company" is a fictitious name
for Keystone Helicopter Holdings, Inc.

See Mot. to Remand, Ex. F (Keystone Helicopter

Holdings, Inc., A Lockheed Martin Company Business Entity Details Print Screen and
Registration of Fictitious Name). As discussed above, fictitious name entities are nominal parties.
See supra at pp. 14-16. Rather, the real and substantial party is Keystone Helicopter Holdings,
Inc., which registered the fictitious name.

B. Real and Substantial Parties
Unlike nominal parties, real and substantial parties have a '"real interest in the litigation."'
Johnson, 724 F.3d at 358 (quoting Bumberger, 952 F.2d at 767). Here, there are at most three real

15

In the context of fictitiously named John Doe defendants, the Third Circuit Court of
Appeals has commented that "fictitiously named defendants are not necessarily 'nominal' parties."
Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 30 n.3 (3d Cir. 1985) (emphasis added) (citing
Grosso v. Butte Electric Railway Co., 217 Fed. 422, 423 (D. Mont. 1914)). But unlike a John Doe
defendant whose name is unknown but whose "relation to the controversy involved" is undisputed
(or at least adequately alleged in the complaint), id., here the fictitiously named entities have no
legal existence whatsoever (and therefore no possible relation to the controversy). As a result,
though there may be some circumstances in which a fictitiously named defendant is more than a
nominal party, such is not the case here.
16

and substantial defendants, which, unlike the nominal defendants, arguably have real interests in
this litigation.
1. "Sikorsky Aircraft Corporation"

The defendants concede that Sikorsky Aircraft Corporation is "properly named." Opp. to
Mot. to Remand at 3. The only question, therefore, is Sikorsky Aircraft Corporation's places of
citizenship.
The complaint alleges, without support, that Sikorsky Aircraft Corporation is incorporated
in Connecticut. Compl.

~

4. The defendants refute this, and submitted affidavits and evidence

showing that Sikorsky Aircraft Corporation is incorporated in Delaware. See, e.g., March 27, 2018
Meshell Deel.

at~

4; May 11, 2018 Meshell Deel.

at~

4. Ms. Gentry does not offer any evidence

that Sikorsky Aircraft Corporation is incorporated elsewhere-to the contrary, one of Ms. Gentry's
exhibits identifies Sikorsky Aircraft Corporation's state of incorporation as Delaware. See Mot.
to Remand, Ex. B (Application for Certificate of Authority of Foreign Business Corporation). The
Court determines that one of Sikorsky Aircraft Corporation's two places of citizenship is
Delaware. 16
The complaint also alleges that Sikorsky Aircraft Corporation has its principal place of
business in Pennsylvania. Compl.

~

4. The defendants respond that although Sikorsky Aircraft

Corporation maintains at least one facility in Pennsylvania, its principal place of business and nerve
center is in Connecticut. In her Motion for Remand, Ms. Gentry's focus is not on the place of
control for Sikorsky Aircraft Corporation, but instead on "direction, control, and coordination of

16

The Court takes judicial notice of the fact that a public record search of the Delaware
Department
of
State's
website,
https://icis.corp.delaware.gov/Ecorp/EntitySearch/
NameSearch.aspx, reflects that Sikorsky Aircraft Corporation is incorporated in Delaware. See In
re Egalet Corp. Sec. Litig., 340 F. Supp. 3d 479, 496 (E.D. Pa. 2018) ("[D]ocuments qualifying as
public records may be judicially noticed by courts.").
17

the Sikorsky defendants' activities with respect to the accident model helicopter." Mot. to Remand
at p. 14 (emphasis added).
As previously discussed, a corporation has only one nerve center. See Hertz, 559 U.S. at
93 ("A corporation's 'nerve center,' usually its main headquarters, is a single place."). A nerve
center is "more than a mail drop box, a bare office with a computer, or the location of an annual
executive retreat;" it is a company's "place of actual direction, control, and coordination[.]" Id. at
97.

The defendants' submissions show that "Sikorsky Aircraft Corporation's Stratford,

Connecticut corporate headquarters is the place where the officers and directors control and
coordinate the corporation's activities. . . . [T]he Senior Management and their staff responsible
for Sikorsky business operations are located in Connecticut." May 11, 2018 Meshell Deel. at ~ 7.
"These corporate officers located in Connecticut have the responsibility to direct and develop
plans, strategies, budgets and goals, and to oversee significant corporate decisions, and set
corporate policy." Id.

at~

9; see also id.

at~~

6, 8, 10-11, 13 (showing corporate activities taking

place at Connecticut headquarters).
The parties also conducted jurisdictional discovery to supplement the analysis of Sikorsky
Aircraft Corporation's nerve center. Ms. Gentry deposed Mr. Meshell (testifying on behalf of
Sikorsky Aircraft Corporation), and he further confirmed that Sikorsky Aircraft Corporation's
nerve center is in Connecticut. 17 For example, Mr. Meshell testified in his deposition that (1)

17

In her supplemental brief on jurisdictional discovery, Ms. Gentry argues that (1) Mr.
Meshell's deposition indicated he lacked personal knowledge or lied about relevant topics, and (2)
counsel for the defendants improperly instructed Mr. Meshell not to answer relevant questions.
As a result of these purported infirmities, Ms. Gentry appears to assert-without relevant case
citations or support-that remand is a proper sanction. The Court has reviewed the full record,
including Mr. Meshell's deposition testimony, and rejects Ms. Gentry's assertions. Mr. Meshell's
testimony properly complied with the Court's Order on jurisdictional discovery, and the Court has
an adequate record from which to decide the Motion to Remand.
18

Sikorsky Aircraft Corporation's corporate headquarters is in Connecticut and that its board of
directors meets in Connecticut, Supp. in Support of Mot. to Remand, Ex. B (Meshell Depo. Tr.) at
pp. 73-74, 110-111, (2) he was not aware of any authority being delegated from Sikorsky Aircraft
Corporation's corporate headquarters to its Pennsylvania facility, id. at pp. 40-41, and (3) the
airworthiness, warranty, sales, products support, engineering, design, and several other relevant
corporate departments of Sikorsky Aircraft Corporation are located in Connecticut. Id. at pp. 37,
42, 76,85-88,90,93-94, 106-111.
Based on the evidence and the testimony of Sikorsky Aircraft Corporation's corporate
representative, Sikorsky Aircraft Corporation's "main headquarters" is in Connecticut. Hertz, 559
U.S. at 93. As such, Sikorsky Aircraft Corporation is a citizen of (1) Delaware, its state of
incorporation, and (2) Connecticut, its principal place of business.
2. "Keystone Helicopter Holdings, Inc."

In the complaint, Ms. Gentry alleges that Keystone Helicopter Holdings, Inc. is "organized
and existing under the laws of the Commonwealth of Pennsylvania." Compl.

~

8. Ms. Gentry is

wrong.
First, Ms. Gentry's own evidence undermines her assertion that Keystone Helicopter
Holdings, Inc. is incorporated in Pennsylvania.

Ms. Gentry submits several Pennsylvania

Department of State forms and screenshots of business search results from the Pennsylvania
Department of State's online records. See Mot. to Remand, Ex. G (Keystone Helicopter Holdings,
Inc. documents). All of these documents reflect that Keystone Helicopter Holdings, Inc. has filed
a "foreign registration statement" in Pennsylvania, meaning that Keystone Helicopter Holdings,

19

Inc. is not incorporated in Pennsylvania but is permitted to do business there. 18 Indeed, one of the
exhibits submitted by Ms. Gentry-Keystone Helicopter Holdings, Inc.'s 2005 "Application for
Amended Certificate of Authority Foreign Corporation"-states that Keystone Helicopter
Holdings, Inc. is incorporated in Delaware.

Mot. to Remand, Ex. G (Keystone Helicopter

Holdings, Inc. documents, specifically the "Application for Amended Certificate of Authority
Foreign Corporation"). The defendants' submissions, including the declaration of Mr. Meshell,
confirm that Keystone Helicopter Holdings, Inc. is incorporated in Delaware. See March 27, 2018
Meshell Deel. at

~

11. Consequently, one of the places of citizenship for Keystone Helicopter

Holdings, Inc. is Delaware. 19
Second, applying the Hertz nerve center test, Keystone Helicopter Holdings, Inc. has its
principal place of business in Connecticut. 20 According to the defendants' evidence, "[t]he
decisions regarding the business of Keystone Helicopter Holdings, Inc. are made in Connecticut."
Id at ~ 12; see also id at ~ 11 ("Keystone Helicopter Holdings, Inc. is incorporated under the laws

of the State of Delaware with its principal place of business in Connecticut."). Although the record
does not contain other evidence about the day-to-day managerial operations of Keystone
Helicopter Holdings, Inc., Mr. Meshell's unrefuted declaration is sufficient to establish that the

18

See also 15 Pa.C.S.A. § 102 (defining a "domestic association" as an "association, the
internal affairs of which are governed by the laws of this Commonwealth" and defining a "foreign
association" as an "association that is not a domestic association").
19

The Court also takes judicial notice of the fact that a public record search of the Delaware
of
State's
website,
https://icis.corp.delaware.gov/Ecorp/EntitySearch/
Department
NameSearch.aspx, reveals that Keystone Helicopter Holdings, Inc. is incorporated in Delaware.
See In re Egalet Corp. Sec. Litig., 340 F. Supp. 3d at 496.
20

To the extent that Ms. Gentry argues that Keystone Helicopter Holdings, Inc.' s principal
place of business is in Pennsylvania because that is where decisions were made "for the support
and production of the accident model helicopter," see Reply at 2, the Court incorporates the
foregoing analysis distinguishing the Hertz citizenship analysis from the Supreme Court's caselinked specific jurisdiction analysis. See supra at pp. 10-11.
20

corporation's activities are "direct[ed], control[led], and coordinate[d]" in Connecticut. Hertz, 559
U.S. at 80; see also Johnson v. SmithKline Beecham Corp., 853 F. Supp. 2d 487, 495 (E.D. Pa.
2012), aff'd, 724 F.3d 337 (3d Cir. 2013) (Under Hertz, a company's nerve center "is where its
ownership decisions are made[.]"). 21
Based on the Court's consideration of the evidence, Keystone Helicopter Holdings, Inc. is
a citizen of (1) Delaware, its state of incorporation, and (2) Connecticut, its principal place of
business.

3. "Helicopter Support, Inc."
Although the complaint does not explicitly name Helicopter Support, Inc. as a defendant,
Ms. Gentry seemingly attempts to bring claims against Helicopter Support, Inc. by naming its
predecessor entities and the fictitious name "Sikorsky Global Helicopters, Inc.," which was
registered by Helicopter Support, Inc. See supra at pp. 12-16; see also Notice of Removal iii! 10,
26 ("Helicopter Support, Inc., improperly named as 'Sikorsky Global Helicopters Inc.,' 'Keystone
Helicopter Corporation', and/or 'Keystone Helicopter Corporation (n/k/a Sikorsky Global
Helicopters, Inc.)' is a Connecticut corporation with its principal place of business in
Connecticut."). Aware that Ms. Gentry may have intended or intend to pursue claims against
Helicopter Support, Inc., the Court will assess the citizenship of Helicopter Support, Inc. 22

21

The "Registration of Fictitious Name" form filed by Keystone Helicopter Holdings, Inc. to
register the fictious name "Keystone Helicopter Holdings, Inc., A Lockheed Martin Company"
suggests that Keystone Helicopter Holdings, Inc. may maintain a Pennsylvania office address. See
Motion to Remand, Ex. F at p. 4 (Keystone Helicopter Holdings, Inc., A Lockheed Martin
Company documents). But the form does not state what sort of operations occur at that office and
is not sufficient to call into question Mr. Meshell's declaration that "[t]he decisions regarding the
business of Keystone Helicopter Holdings, Inc. are made in Connecticut." March 27, 2018
Meshell Deel. at if 12.
22

At this juncture, the Court expresses no opinion on whether Helicopter Support, Inc. was
properly served or is otherwise a proper party to this action.
21

The record shows that Helicopter Support, Inc. is incorporated in Connecticut and its nerve
center is in Connecticut. In addition to Mr. Meshell's declaration that Helicopter Support, Inc. "is
incorporated under the laws of Connecticut and maintains its principal place of business in
Connecticut," March 27, 2018 Meshell Deel. at~ 8,23 Mr. Meshell's deposition testimony confirms
that the corporation's "place of actual direction, control, and coordination" is Connecticut. See
Hertz, 559 U.S. at 97. Mr. Meshell testified that "[t]he management, the Helicopter Support, Inc.

management is Connecticut, they oversee it, they meet with the customers, all that is done in
Connecticut." Supp. in Support of Mot. to Remand, Ex. B (Meshell Depo. Tr.) at p. 82. He added
that Helicopter Support, Inc.' s employees in charge of helicopter operations are "based in
Connecticut," id. at pp. 83-84, and that the corporation's customer call center is in Connecticut.
Id. at p. 88. On the other hand, there is nothing in the record showing that Helicopter Support,

Inc.' s state of incorporation or nerve center are anywhere other than Connecticut. Therefore,
Helicopter Support, Inc. is a citizen of Connecticut, where it is both incorporated and keeps its
principal place of business.

Whether the Court Has Subject Matter Jurisdiction24

III.

The principal federal statute governing diversity subject matter jurisdiction, 28 U.S.C. §
1332, gives federal district courts original jurisdiction of all civil actions between citizens of
different States where the amount in controversy exceeds $75,000. Lincoln Prop. Co. v. Roche,
546 U.S. 81, 89 (2005) (citations, quotations, and alterations omitted). Since 1806, the Supreme

23

The Court takes judicial notice of the fact that a public record search of the Connecticut
Secretary
of
State's
website,
https://www.concord-sots.ct.gov/CONCORD/
online?sn=Publiclnquiry&eid=9740, reveals that Helicopter Support, Inc. is incorporated in
Connecticut. See Jn re Egalet Corp. Sec. Litig., 340 F. Supp. 3d at 496.
24

Because the Court determines that it has diversity jurisdiction, it need not decide whether
Ms. Gentry's claims necessarily raise a federal issue under Grable & Sons Metal Prods., Inc. v.
Darue Engineering & Mfg., 545 U.S. 308 (2005).
22

Court "ha[ s]

read

the

statutory

formulation

between

citizens

of

different

States

to require complete diversity between all plaintiffs and all defendants." Id (citations, quotations,
and alterations omitted).
In addition to enunciating the diversity requirement, § 1332 describes the ways in which
courts determine the residency of the parties, including that "a corporation shall be deemed to be
a citizen of any State by which it has been incorporated and of the State where it has its principal
place of business." 28 U.S.C. § 1332(c)(l). Courts apply the Supreme Court's analysis in Hertz
to ascertain a party's principal place of business, but, in so doing, the citizenship of nominal parties
does not factor into a court's calculation. See, generally, Johnson, 724 F.3d at 347-59.
Here, there is complete diversity between the plaintiff, Ms. Gentry, and the defendants who
are actual parties in interest (rather than nominal parties). 25 Ms. Gentry is a citizen of Tennessee
and none of the real and substantial defendants are citizens of Tennessee. Each non-nominal
defendant's citizenship is as follows:
Real Partv in Interest

Citizenshil!

Sikorsky Aircraft Corporation

Delaware and Connecticut

Keystone Helicopter Holdings, Inc.

Delaware and Connecticut

Helicopter Support, Inc.

Connecticut26

25

The Court excludes from this analysis Keystone Helicopter Corporation, Sikorsky Global
Helicopters, Inc., and Keystone Helicopter Holdings, Inc. A Lockheed Martin Company. As noted
above, each of these entities are nominal parties insofar as they no longer exist and/or are fictitious
names only. See supra at pp. 12-16.
26

As discussed above, the complaint does not name Helicopter Support, Inc. as a defendant.
Nonetheless, for the purposes of this Motion, the Court assumes (without deciding) that Ms. Gentry
intended or intends to pursue claims against Helicopter Support, Inc.
23

Because (1) there is diversity between Ms. Gentry and the real and substantial defendants, 27
and (2) the amount in controversy exceeds $75,000, the Court has diversity subject matter
jurisdiction.

Whether Removal Was Proper

IV.

A. Legal Standard
Under 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division embracing the
place where such action is pending." Once a case is removed from state court to federal court,
however, it "may be remanded under [28 U.S.C. § 1447(c)] for (1) lack of district court subject
matter jurisdiction or (2) a defect in the removal procedure." PAS v. Travelers Ins. Co., 7 F.3d
349, 352 (3d Cir. 1993); see also Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1215 (3d Cir.
1991) ("Section 1447(c), then, tells us that either defective removal procedure or lack of subject
matter jurisdiction is a proper ground for remand.") (emphasis in original). "It is settled that the
removal statutes ... are to be strictly construed against removal and all doubts should be resolved
in favor ofremand." Steel Valley Auth, 809 F.2d at 1010.
Aside from limiting removal to cases over which federal courts have subject matter
jurisdiction, federal law identifies several specific procedures with which removing defendants
must comply. First, the "unanimity rule" states that "[w]hen a civil action is removed solely under
section 1441(a), all defendants who have been properly joined and served must join in or consent

27

"No rule exists-and Plaintiff has not cited any supporting authority for the propositionthat every defendant must be diverse from all other defendants." Filsaime v. Caruso, No. 14-6506,
2015 WL 171844, at *2 (E.D. Pa. Jan. 13, 2015); see also Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365, 373-74 (1978) ("[D]iversity jurisdiction does not exist unless each defendant is a
citizen of a different State from each plaintiff.") (emphasis in original).
24

to the removal of the action." 28 U.S.C. § 1446(b)(2)(A). And second, under the "forum defendant
rule," removal is proper "only if none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2).
B. The Unanimity Rule
The Third Circuit Court of Appeals has recognized that consent to removal is not required
where the "non-joining defendant is an unknown or nominal party." Balazik, 44 F.3d at 213 n.4
(citations omitted); see also Johnson, 724 F.3d at 359, n.27 (Nominal defendant's "apparent failure
to consent to removal also does not provide a basis for remand."); N. Penn Water Auth. v. Bae Sys.
Aerospace Elecs., Inc., No. 04-5030, 2005 WL 1279091, at *6 (E.D. Pa. May 25, 2005) (Defendant

"is a nominal defendant and therefore it was unnecessary for [it] to join in the Notice of
Removal.").
Here, there are at most three the real and substantial defendants-Sikorsky Aircraft
Corporation, Keystone Helicopter Holdings, Inc., and Helicopter Support, Inc.-all of which
consented to removal. See Notice of Removal at pp. 1, 7. Ms. Gentry argues that removal is
improper because Keystone Helicopter Holdings, Inc., A Lockheed Martin Company apparently
did not join the Notice of Removal (and did not join in the consent to removal expressed therein).
But because "Keystone Helicopter Holdings, Inc., A Lockheed Martin Company" is merely a
fictitious name for Keystone Helicopter Holdings, Inc., see supra at p. 16, the nominal defendant
did not need to consent. Balazik, 44 F.3d at 213 n.4. All of the real and substantial parties
consented to removal, and so the defendants satisfied the unanimity rule.
C. The Forum Defendant Rule
The forum defendant rule only applies, on its face, to "parties in interest properly joined."
§ 144l(b)(2). Here, no real and substantial party is a citizen of Pennsylvania: both Sikorsky

25

Aircraft Corporation and Keystone Helicopter Holdings, Inc. are citizens of Delaware and
Connecticut and Helicopter Support, Inc. is a citizen of only Connecticut. The citizenship of
nominal parties does not violate or affect the forum defendant rule. See Mallalieu-Golder Ins.
Agency, Inc. v. Exec. Risk Indem., Inc., 254 F. Supp. 2d 521, 526 (M.D. Pa. 2003) ("[A] nominal

party to an action ... cannot be a party in interest under 28 U.S.C. § 1441(b).") Yakitori Boy, Inc.
v. Starr Indem. & Liab., Co., No. 18-4094, 2019 WL 199904, at *5 (E.D. Pa. Jan. 14, 2019)

(holding that defendant "is a nominal party and his citizenship status should not affect this Court's
exercise of diversity jurisdiction, nor should it affect removal under 28 U.S.C. § 1441(b)"); cf §
1441(b)(l) ("In determining whether a civil action is removable on the basis of the jurisdiction
under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall
be disregarded."). The defendants complied with § 1441 (b) and the forum defendant rule.
The defendants obeyed with the requirements for removal and as such removal was
proper. 28
CONCLUSION

Just because a corporation maintains some limited operations in Pennsylvania, it does not
follow that the company's principal place of business is also necessarily in Pennsylvania, even if
the company is being sued for conduct arising from those Pennsylvania operations. Likewise, just
because an entity registers a fictitious name for use in Pennsylvania, the fictitious name does not
become subject to suit independent of the underlying entity. Therefore, the Court determines that
there is diversity subject matter jurisdiction and removal was properly executed.

28

Ms. Gentry's request for attorneys' fees under 28 U.S.C. § 1447(c) is also denied. "Absent
unusual circumstances, courts may award attorney's fees under§ 1447(c) only where the removing
party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005). Because removal here was proper, it was also "objectively
reasonable." Id.
26

Separately, Ms. Gentry's attempt to shoehorn the Fetbroyt Declaration into the recordfor the second time-was improper.
For those and the foregoing reasons, Ms. Gentry's Motion to Remand is denied and the
defendants' Motion to Strike is granted. An appropriate order follows.

27