Plaintiff's Motion to Remand Post-Koken Claim Back To State Court Denied

In his recent decision in the case of Hagan v. Leon, No. 3:17-cv-2155 (M.D. Pa. Jan. 3, 2018 Mariani, J.) (Mem. Op. Judge Robert D. Mariani of the Federal Middle District Court of Pennsylvania), the court denied a Plaintiff’s Motion to Remand his post-Koken claims back to the state court.  

Judge Robert D. Mariani
M.D. Pa.

In this matter, the Plaintiff sued the alleged third party tortfeasor Defendants on a negligence claim and his own carrier, Progressive, for underinsured motorist benefits.

The Plaintiff had previously released the tortfeasor Defendants in exchange for a payment of $15,000.00 along with an agreement to refuse any consent to removal that may be sought if the UIM carrier attempted to remove the case to federal court.  

Thereafter, Progressive filed a Notice of Removal to which the Plaintiff responded with a Motion to Remand.   The Plaintiffs asserted that the Notice of Removal failed to allege citizenship of all parties at the time the Complaint was filed and further asserted that not all Defendants had consented to the removal as required by the removal statute.  

On the same day that the Plaintiffs’ Motion to Remand was filed, Progressive amended its Notice of Removal to include allegations of the citizenship of all of the parties at the time the Complaint was filed.  

After reviewing the matter, the court found that both of the Plaintiffs’ arguments lacked merit and, therefore, denied the Plaintiff’s Motion to Remand.  

Judge Mariani more specifically noted that Progressive’s Amended Notice of Removal clearly stated that, at the time the Plaintiffs’ Complaint was filed, the Plaintiffs were citizens of Pennsylvania and the tortfeasor Defendants were citizens of New Jersey and the UIM carrier Defendant was a citizen of Ohio.   Accordingly, the court found that, even if Progressive’s original Notice of Removal was deficient, the defect was cured by the amendment.

Turning to the Plaintiffs’ second argument, the court reviewed the procedure for removing a civil case to federal court under 28 U.S.C. §1446.  The court noted that this code provision has been construed to require that, when there is more than one (1) Defendant, all must join in the removal petition.   However, the court noted a recognized  exception that provided that the unanimity rule may be disregard where (1) a non-joining party is an unknown or nominal party; or (2) where a defendant has been fraudulently joined.  

The court noted that nominal parties are generally those  parties without any real interest in the litigation.

Here, the court noted that the tortfeasor Defendants had been released from the matter by way of a settlement agreement.  Accordingly, the court found that the tortfeasors had no real remaining interest in the litigation and, therefore, were, consequently, nominal parties from whom consent was no longer required to support a removal of a state court litigation to federal court.  

In so ruling, Judge Mariani stated that it did not appear that the Third Circuit Court of Appeals had ever considered a similar fact pattern prior to this decision.  However, the court noted that similar rulings have been issued by the Fifth Circuit Court of Appeals and the Eighth Circuit Court of Appeals granting remands under analogous facts.   As such, the Plaintiff’s Motion to Remand was denied.  

 

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