CARAGEIN v. OUTBACK STEAKHOUSE et al

Filing 17

ORDER granting 6 Motion to Remand to State Court. For the reasons stated in the Memorandum Order filed herewith, Plaintiffs' Motion to Remand (Doc. 6 ), is GRANTED, and this case shall be REMANDED FORTHWITH to the Court of Common Pleas of Allegheny County, Pennsylvania. IT IS SO ORDERED. Signed by Judge Cathy Bissoon on 8/1/16. (rld)

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

JANE T. CARAGEIN, et al.,
Plaintiffs,
v.
OUTBACK STEAKHOUSE, et al.,
Defendants.

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Civil Action No. 16-732
Judge Cathy Bissoon

MEMORANDUM ORDER

I. MEMORANDUM
For the reasons that follow, Plaintiff’s Motion to Remand to State Court (Doc. 6) will be
granted.
BACKGROUND
On January 20, 2016, Jane T. Caragein and James N. Caragein (“Plaintiffs”) filed a
complaint in the Court of Common Pleas of Allegheny County against Outback Steakhouse;
Blooming Brands, Inc.; OSI Restaurant Partners, Inc.; Outback Steakhouse of Florida, LLC; and
Tobi Frable (“Defendants”), alleging claims for negligence, strict liability, breach of implied
warranty, and loss of consortium. (Defs’ Notice of Removal (Doc. 1), Ex. H). On June 2, 2016,
Defendants removed Plaintiffs’ action to this Court. Alleging diversity jurisdiction, Defendant
argues that removal is proper pursuant to 28 U.S.C. §§ 1441 et seq. (Doc. 1).
On June 21, 2016, Plaintiffs filed a Motion to Remand to State Court, arguing, most
pertinently, that complete diversity of citizenship does not exist, as Plaintiffs and Defendant Tobi
Frable are all residents of the Commonwealth of Pennsylvania. (Pls’ Mot. (Doc. 6). On July 12,

2016 Defendants filed a Brief in Opposition, arguing that diversity of citizenship does exist
because: 1) Mr. Frable was fraudulently joined and 2) Mr. Frable is a nominal defendant. (Def.’s
Br. in Opp’n. (Doc. 11)).
ANALYSIS
“Because a party who urges jurisdiction on a federal court bears the burden of proving
that jurisdiction exists, a removing party who charges that a plaintiff has fraudulently joined a
party to destroy diversity of jurisdiction has a ‘heavy burden of persuasion.’” Boyer v. Snap-on
Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley v. Union Switch and Signal
Div., 809 F.2d 1006, 1010, 1012 n. 6 (3d Cir. 1987)). The Court of Appeals for the Third Circuit
has held that “joinder 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.’” Id. (quoting Abels v. State Farm Fire
& Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)).
Defendants have not met their “heavy burden.” They argue that because Defendant
Frable is only mentioned by name once in the Complaint, that Plaintiffs have stated no claim
against him. They ignore the fact that Counts I-IV of the Complaint are asserted against all
Defendants, Mr. Frable included. “A district court must resolve all contested issues of
substantive fact in favor of the plaintiff and must resolve any uncertainties as to the current state
of controlling substantive law in favor of the plaintiff.” Boyer, 913 F.2d at 111 (3d Cir. 1990)
(internal citations omitted). It is alleged that Mr. Frable was the proprietor and general manager
of the Outback Steakhouse restaurant where Plaintiff Mrs. Caragein allegedly contracted a
vicious food-borne illness. Defendants have failed to articulate that “no reasonable basis in fact
or colorable ground” supports Plaintiffs’ claims, particularly in light of the participation theory

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of liability in tort under Pennsylvania law. See Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 90
(Pa. 1983). For the same reasons, the Court is not persuaded that Mr. Frable is a “nominal
defendant” who should not be considered for purposes of determining diversity of citizenship.
(See Doc. 11 at 5-6).
As such, the Court declines to hold that Mr. Frable was fraudulently joined and/or is a
nominal defendant. Both he and Plaintiffs are residents of Pennsylvania, and complete diversity
of citizenship does not exist. This Court lacks diversity jurisdiction to hear the instant case, and
Plaintiffs’ Motion to Remand will be granted

II. ORDER

For the reasons stated above, Plaintiffs’ Motion to Remand (Doc. 6), is GRANTED, and
this case shall be REMANDED FORTHWITH to the Court of Common Pleas of Allegheny
County, Pennsylvania.
IT IS SO ORDERED.

August 1, 2016

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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