Federal Court Rejects Another Motion to Remand Filed By A Plaintiff as Gamesmanship

In the case of Street v. GAC Shipping USA, Inc., No. 24-1739 (E.D. Pa. Oct. 1, 2024 Rufe, J.), the court denied a Plaintiff’s Motion to Remand a Case to State Court.

This case arose out of a slip and fall event.   

In this decision, the court ruled that a Plaintiff will not be allowed, after a year of litigation and after the filing of a number of previous motions to remand that were denied, to amend the Plaintiff’s Complaint to join non-diverse Defendants in an effort to support another request for a remand of the case to state court.

The court noted that the non-diverse Defendants at issue in this case were not indispensable parties but only amounted to allegedly subsequently negligent healthcare providers.

The court found that the Plaintiff’s attempt at this amendment was transparently forum-shopping gamesmanship relative to an effort to get the case remanded to state court.   As such, the court struck the non-diverse Defendant from the matter and denied Plaintiff’s latest Motion to Remand the case to state court.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

Federal District Court Confirms that Fraudulent Misjoinder Doctrine Not Adopted in Third Circuit Relative to Remand Analysis

In the case of Ashworth v. Eurofins Donor & Product Testing, Inc., No. 23-1958 (E.D. Pa. Aug. 29, 2024 Schmehl, J.), the court granted a Motion to Remand and denied a Motion to Dismiss. In this case, the Plaintiff brought products liability claims against a diverse product manufacturer Defendant and medical malpractice claims against a non-diverse implantation surgeon.

The court ruled that remand was appropriate because the doctrine of fraudulent misjoinder is not recognized in the Third Circuit Court. The court noted that the elements of the doctrine were too unsettled to be adopted in this federal court.

As such, the Court ultimately ruled that a remand of this matter to the state court was proper.  

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Motion to Remand Granted After Allegation of Fraudulent Joinder Was Rejected by Federal Court

In the case Harris v. Miller’s Ale House, Inc., No. 23-CV-03349 (E.D. Pa. Nov. 13, 2023 Baylson, J.), the federal court granted a motion to remand a slip and fall case back to state court where the Plaintiff was found to have asserted valid claims against a store manager who resided in the same jurisdiction of the Plaintiff thereby defeating diversity of the parties necessary for federal court jurisdiction.

This case arose out of a slip and fall. The Plaintiff sued Miller’s Ale House, Inc. along with the manager on duty at the time of the Plaintiff’s incident.

The Plaintiff and the manager of the Ale House were both residents of Pennsylvania.

After the Defendant removed the case the federal court, the Defendant conceded that the manager was a resident of the same jurisdiction as the Plaintiff but argued that his joinder was fraudulent because of his involvement in the case simply arose from the course and scope of his employment with the landowner Defendant.

The Plaintiff moved to remand the case back to state court. The court granted the Plaintiff’s Motion to Remand after finding that the Defendants failed to meet their burden of proof with respect to the allegation of a fraudulent joinder. In this regard, the federal court found that negligence claims asserted against a manager of a retail establishment arising out of a slip and all incident were colorable under Pennsylvania law.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 28, 2023).

Flea Market Not a Seller for Purposes of Products Liability Case

In the case of Liebig v. MTD Products, Inc., No. 22-4427 (E.D. Pa. May 25, 2023 Murphy, J.), the court denied a Motion to Remand in a products liability case.

The court reasoned that the Plaintiff’s alleged products liability claims against a non-diverse Pennsylvania flea market were not colorable such that a finding that that Defendant was fraudulently joined was appropriate.

In this case, the product was apparently purchased at a flea market.

The court noted that a flea market is not a seller of a product as that term is defined in the products liability context. Rather, flea markets are markets that merely provide space for third parties to sell ordinary household items to each other. Flea markets are not to be considered manufacturers, distributors, or sellers of products under the contexts of product liability case.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Clem Onojeghuo on www.unsplash.com.

Court Reviews Standard of Review For Motion to Amend Complaint in Federal Court

In the case of Moravia Motorcycle, Inc. v. Allstate Ins. Co., No.2:21-cv-01274-PLD (W.D. Pa. Oct. 19, 2022 Dodge, Mag. J.), the court addressed a Plaintiff’s Motion for Leave to Amend Complaint and join an additional party which was opposed by the Defendant carrier in this breach of contract and bad faith claim. The court denied the Motion.

According to the Opinion, this case involved a claim by the Plaintiffs against the Defendant carrier in which they sought benefits under an insurance policy for damage to their motorhome.

The court noted that the Plaintiff was relying upon F.R.C.P. 15(a)(2) in seeking to amend their Complaint. Under that Rule, it is provided that, when a party moves to amend a pleading, “the court should freely give leave when justice so requires.”

However, the magistrate judge in this case noted that the Third Circuit Court of Appeals has held that a party seeking to amend after the deadline in a Case Management Order is required to meet the good cause standard of F.R.C.P. 16(b)(4), and not the more liberal standard of Rule 15(a)(2).

In reviewing the record before it, the court noted that there was evidence that the Plaintiff was aware of the possible need to join in another party before the deadline to amend actually expired. In the end, the court found that the Plaintiff had not met the good cause standard.

The court also went on to state that, even if the Plaintiff had met the good cause standard, because their motion sought to add a non-diverse party, the Plaintiffs would have been required to meet other factors in order to be allowed to amend to join a non-diverse party.

The court noted that some of the factors which may be considered by a court when faced with a Motion to Add a Non-Diverse Party would include the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the Plaintiff had been dilatory in requesting the amendment, whether the Plaintiff would be significantly injured if the amendment is not allowed, and other equitable factors. The court in this matter noted that it did not appear that these particular factors had yet been adopted in the Third Circuit but had been utilized in other federal circuits.

Nevertheless, after reviewing the factors as applied in this case, the court ruled that the factors weighed against allowing the joinder of the non-diverse Defendant in any event.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Joseph Hudock of the Pittsburgh office law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Federal Court Keeps Case in Federal Court After Plaintiff Joins Defendants In Apparent Attempt to Destroy Diversity

In the case of Testa v. Broomall Operating Company, L.P., No. 2:21-CV-05148-KSM (E.D. Pa. May 26, 2022 Marston, J.), the court addressed a Defendant’s Motion to Strike a Plaintiff’s Amended Complaint and a Plaintiff’s Motion to Remand the Case to State Court in a matter arising out of a rehabilitation and nursing home negligence case.

According to the Opinion, it was alleged that the Plaintiff’s decedent passed away after contracting COVID-19 at the facility.

After the suit was filed, the Defendants removed the action to federal court on the grounds of diversity and federal question jurisdiction.

Thereafter, the Plaintiff amended her Complaint as of right and clarified that she was not bringing claims under a Federal act and the Plaintiff additionally added the claims of negligence and wrongful death against individual Defendants. The individual Defendants were residents of Pennsylvania and thereby defeated complete diversity.

In response, the Defendants moved to strike the Amended Complaint. The Plaintiff opposed the motion and moved to remand the case back to state court.

The Defendants argued that the joinder of the individual Defendants was impermissible. 

The court exercised its power to review the joinder under F.R.C.P. 21. The court additionally applied federal law and found that, based upon the timing of the filings and Plaintiff’s counsel’s concessions at oral argument, it appeared to the court that the Plaintiff was aware of the identity of the added individual Defendants at the time the case was initiated. 

The court additionally stated that the lack of any “John Doe” Defendants in the original Complaint made it more likely that the individual Defendants were added for the purpose of destroying diversity. 

It was additionally noted that an email Plaintiff’s counsel sent to defense counsel shortly before amending the Complaint supported that theory.

The court additionally restated that the Plaintiff waited over three (3) months from the time she allegedly learned of the individual Defendants’ identities to name them as parties to the action. It was also noted that the Plaintiff did not offer up any legitimate justification for the delay in the joinder.

The court was also influenced by the fact that the Plaintiff would not be prejudice by the absence of the individual Defendants from the lawsuit.

As such, the court found that the applicable factors to be considered weighed in favor of striking the joinder. Accordingly, the court struck the claims brought against the individual Defendants, which restored the complete diversity in the case.

Given that there was complete diversity in the case, the court denied the Plaintiff’s Motion to Remand the case to state court.


Anyone wishing to review a copy of this decision may click this LINK.

Eastern District Federal Court Remands UIM Claim Back to State Court

As also already reported in The Legal Intelligencer in a July 9, 2015 article by Gina Passarella, in a recent July 8, 2015 detailed Order, the Eastern Federal District Court of Pennsylvania remanded a removed Post-Koken case back to Delaware County in the matter of Kennedy v. Allstate, No. 2:15-CV-02221-TON (E.D.Pa. July 8, 2015 O'Neill, J.).

The Plaintiff originally filed in Delaware County in this UIM claim and asserted UTPCPL claims and negligence claims against Allstate as a company as well as several Pennsylvania resident claims adjusters for Allstate.

Allstate removed the matter to federal court, asserting a fraudulent joinder and the lack of any colorable claims under Pennsylvania law.

There was no dispute that Allstate was an Illinois resident and that the three adjuster Defendants and the Plaintiff were Pennsylvania residents.  There was also no dispute that the amount in controversy element was satisfied.

After reviewing the applicable law on the issues raised, and after finding that the Plaintiff had stated colorable claims against the non-diverse claims adjuster defendants, the court remanded the case back to state court in Delaware County.

The court so ruled despite noting a lack of concrete Pennsylvania state law recognizing the validity of a negligence claim against a claims adjuster by an insured relative to the handling of the insured's claims (i.e., is there a duty of care owed by an adjuster to an insured?). 

The court in Kennedy believed that, since there was a "possibility" that the Pennsylvania Supreme Court could someday rule that a claims adjuster owes a duty to an insured and therefore could be the subject of a negligence cause of action, the defendants in this matter had failed to meet their heavy burden under the law of attempting to show that there was no colorable claim and/or a fraudulent joinder of claims in an effort to defeat the diversity of citizenship necessary for federal court jurisdiction.

The court in Kennedy went to great lengths to clearly state that it was not recognizing such a negligence cause of action against claims representatives.  Rather, the court was more simply noting that, since Pennsylvania law in this regard was unsettled, it could not rule that the Plaintiff had failed to state a colorable claim under the motion to remand standard of review.

The court also addressed gist of the action and statute of limitations issues relative to the negligence claim in a manner that favored the Plaintiff's position.

The Plaintiff's UTPCPL claims were also found by the court to be colorable claims that equally served to support the granting of the motion to remand.


Anyone wishing to review a copy of this Kennedy v. Allstate decision may contact me at dancummins@comcast.net.


I send thanks to the prevailing Plaintiff's Attorney Ryan Curran of the Curran Firm in Media, PA for bringing this case to my attention.