Federal Court Remands Case To State Court After Finding Diversity Jurisdiction Defeated by Joinder of Store Manager as a Defendant

In the case of Jones v. Wal-Mart Stores East, LP, No. 2:24-CV-05521-KNS (E.D. Pa. Feb. 4, 2025 Scott, J.), the court granted a Plaintiff’s Motion to Remand this case from federal court back to the Philadelphia Court of Common Pleas.

According to the Opinion, this case arose out a trip and fall case that occurred at a Wal-Mart store.

The Plaintiff filed the lawsuit in the Philadelphia Court of Common Pleas. The Plaintiff sued Wal-Mart and the store manager.

Wal-Mart removed the case to federal court asserting that the store manager Defendant was fraudulently joined and that, therefore, the requirements for a federal diversity jurisdiction were satisfied.

The federal court disagreed and held that remand was required where complete diversity jurisdiction did not exist in light of the fact that the Plaintiff had asserted a valid negligence claims against an individual store manger who, like the Plaintiff, was a Pennsylvania citizen.

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


Source: The Legal Intelligencer Federal Case Alert, www.Law.com (March 7, 2025).

Federal Court Addresses When Time Begins To Run To Determine if Removal To Federal Court Was Filed Too Late

In the case of Baucom v. Vidal, No. 2:24-CV-01818-JFM (E.D. Pa. Dec. 12, 2024 Murphy, J.), the court addressed a Plaintiff’s Motion to Remand a motor vehicle accident case from federal court back down to state court. 

The court noted that the issue before it was when the Defendant’s thirty (30) day time period to remove a case to federal court begins to run.

According to the Opinion, the Plaintiffs filed this suit in the Court of Common Pleas of Philadelphia and alleged that the damages claimed were in excess of $50,000.00.

At some point in time after the statutory thirty (30) day removal clock had expired, the Plaintiffs made it known that they were actually seeking more than $350,000.00, that is, an amount more than enough to satisfy the $75,000 amount necessary to support diversity jurisdiction.

At that point in time, the Defendants filed a Notice of Removal to the federal court. The Plaintiff then moved to remand the case back to state court, saying that the removal was too late.

The court noted that the questions before it was whether the original Complaint filed in the state court put the Defendants on notice that the amount in controversy exceeded $75,000.00.

Judge Murphy noted that the answer to this question is straightforward under the Third Circuit Court of Appeals’ bright-line test.  Under the appropriate standard of review, the court noted that, if an initial pleading does not give the Defendant notice of the right to remove the case to federal court, the Defendants shall file a Notice of Removal within thirty (30) days after receipt, by the Defendant, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has indeed become removable. In this regard, the court cited to the Third Circuit’s decision in McLaren v. UPS Store, Inc., 32 F.4th 232 (3d Cir. 2022).

This federal district court noted that the Defendants were not on notice that the amount in controversy exceeded $75,000.00 until the Plaintiffs made their $350,000.00 settlement demand. As such, the court found that the Defendant’s removal was timely. Accordingly, the Plaintiff’s Motion to Remand was denied.

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

Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 2025).

Court Rejects Defense Contention that Bad Faith Conduct on Part of Plaintiff Prevented a Timely Removal to Federal Court

In the case of Gainer v. Bordertown Transp., Inc., No. 2:24-CV-01296-KNS (E.D. Pa. Dec. 2, 2024 Scott, J.), the Federal Eastern District Court granted a Plaintiff’s Motion for a Remand of a personal injury litigation to state court where the federal court found that the Plaintiff’s litigation conduct while the case was at the state court trial level, which case handling ended up with the removal request being facially untimely, did not evidence bad faith on the part of the Plaintiff.

According to the Opinion, the case involved a Plaintiff who was injured while she was standing behind the wheel of a truck that was hit by the Defendant’s vehicle. The Plaintiffs sued the Defendant tortfeasor and also sued PennDOT.

However, after over a year of discovery and pre-trial litigation that resulted in the dismissal of PennDOT from the action, the remaining Defendants then removed the case to federal court.

The Plaintiff then filed the present Motion for Remand. The Defendants opposed the motion on the grounds that the Plaintiff had acted in bad faith to prevent the removal in the first place.

According to the Opinion, there is a dearth of case law in the Third Circuit regarding the definition of bad faith in this context.

The court noted that bad faith under the removal statute, 28 U.S.C. §1446(c)(1) means “intentional conduct on behalf of the Plaintiff which denies the Defendant the opportunity to remove the case to federal court.”  The court noted that bad faith can be demonstrated through circumstantial evidence.
The court also noted that, when completing the analysis of allegations of bad faith in this case, a court must look at all available evidence to determine whether the Plaintiff engaged in intentional conduct to deny the Defendant the chance for removal. 

In this case, the Defendants were alleging that, although PennDOT was in the case in the state court matter, the Plaintiff did not move forward in terms of any efforts to enter a default judgment against PennDOT, move to strike PennDOT’s untimely Answer to the Complaint, or otherwise move to compel PennDOT to comply with discovery requests. The defense also noted that the Plaintiff dismissed PennDOT from the suit a little over two months after the expiration of the one year removal deadline. The defense additionally indicated that the Plaintiff made no effort to settle with PennDOT before dismissing PennDOT from the case and did not otherwise have the Plaintiff’s expert witness attempt to establish liability against PennDOT in any expert report.

The Plaintiff responded by indicating that many of the decisions relative to the Plaintiff’s litigation conduct were based on practice customs in the Philadelphia County Court, were based upon strategy, and were not based on any motivation to thwart the Defendants’ removal rights. The Plaintiff contended that motions for a default judgment, or to strike an untimely answer to a Complaint or to compel discovery would not have functionally improved the Plaintiff’s position in the litigation because Plaintiff’s counsel had allegedly never seen any of these types of motions successfully granted in the Philadelphia County Court of Common Pleas.

The Plaintiffs also noted that they chose not to dismiss PennDOT from the suit previously, jointly with the Defendants, because the Plaintiffs felt that the individual tortfeasor Defendants bore the vast majority of the liability. Moreover, the Plaintiffs had a strategy of attempting to gut the Defendants’ likely joint tortfeasor arguments at trial.

The Plaintiffs also noted that they waited until the date they did to dismiss PennDOT from the suit because they were waiting to fully assess the Defendants’ expert report, which report was dated three days after the one year removal deadline expired. The Plaintiff noted that it was determined within the Plaintiff’s strategy that it would be best to remove PennDOT from the case to instead focus the liability arguments against the individual Defendants, particularly where the Defendants remaining in the case had already admitted liability but PennDOT did not. As such, Plaintiff’s counsel noted that it would be an easier, cleaner, and cheaper trial without PennDOT because the Plaintiff would not have to establish PennDOT’s liability at any trial if PennDOT was dismissed from the case.

With regard to the argument that the Plaintiff did not try to seek out settlement with PennDOT prior to dismissing PennDOT, Plaintiff’s counsel explained to the court that there were settlement conversations with PennDOT but that they were not successful.

Based upon the above, as well as additional factors noted in the Opinion, the court held that the individual Defendants in this case had not met their heavy burden of demonstrating bad faith on the part of the Plaintiff. Rather, the Plaintiff was found to have offered plausible strategic arguments in explanations of the Plaintiff’s strategic decisions. Accordingly, the court did not find that the Plaintiff engaged in any intentional conduct to deny the Defendants the opportunity to move the case to federal court.

While the court noted, in this case, that the issue of whether Plaintiff’s counsel’s strategic decisions were the best course of action was irrelevant to the court’s consideration, the court did also note that, in other cases, the court is permitted to call into question the sincerity of the Plaintiff’s “strategic decisions” and to make a finding of bad faith. However, such was not the case in this matter.

In the end, the court granted Plaintiff’s Motion to Remand the case to the Philadelphia County Court of Common Pleas.

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


Source: “The Legal Intelligencer Federal Case Alert,” www.Law.com (Jan. 2, 2025).

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.

Federal Court Remands Coverage Action to State Court

In the case of Turner v. Progressive Specialty Ins. Co., No. 2:24-CV-00939-JFM (E.D. Pa. Aug. 14, 2024 Murphy, J.), the court granted a motion to remand a class action regarding UM/UIM coverage issues after finding that grounds for federal court jurisdiction were not met by the carrier.

The court noted that this case was removed by Progressive from the Court of Common Pleas of Philadelphia County to the federal district court. The court noted that the purported basis for jurisdiction in this case was the Class Action Fairness Act which requires, among other things, that the aggregate amount in controversy be at least $5 million dollars.

In an Amended Complaint, the Plaintiff dropped any claim for punitive damages and and confirmed that all that was sought was a judicial declaration of uninsured and underinsured motorist coverage for him and other proposed class members.

The court found that Progressive had not met its burden to establish the amount in controversy for federal court jurisdiction. As such, the case was remanded to the state court.

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


I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Federal Court Case Remanded to State Court Based on Untimeliness of the Removal

In the case of Calpin v. The ADT Security Services, Inc., No. 3:2023-CV-1418-JKM (M.D.Pa. Feb. 20, 2024, Munley, J.), the Court remanded the case back to the state court after finding that the defendant’s notice of removal was procedurally defective in that it was untimely.

According to the opinion, this matter arose out of the alleged termination of the plaintiff’s employment while he pursued worker’s compensation benefits.

The plaintiff originally filed suit in the Lackawanna County Court of Common Pleas. Nearly ten months after the filing of the plaintiff’s Complaint, the defendant removed the matter to federal court.

In the matter before the Court on the motion to remand, the defendant asserted that the removal was timely based upon when information was obtained during discovery regarding the amount in controversy. As noted, the plaintiff argued that the defendant removed the matter in an untimely manner.

Judge Julia K. Munley
M.D. Pa.

Judge Julia K. Munley of the Federal Middle District Court of Pennsylvania generally noted that a notice of removal must be filed within thirty days after service of the initial pleading setting forth the claim for relief upon which the action is based. Here, there was no dispute that the defendant filed its notice of removal beyond the thirty day period.

While the Court noted that, under certain circumstances, a defendant may file a notice of removal more than thirty days after the receipt of the initial pleading, here, the Court rejected the defendant’s contention that they did not know that the amount in controversy exceeded $75,000 until information was secured from the plaintiff’s responses to Interrogatories.

The plaintiff asserted that the state court Complaint placed the defendant on notice that the amount in controversy exceeded $75,000. The Court agreed. The Court noted that the plaintiff’s Complaint detailed the underlying economic damages claims and also asserted a punitive damages claim. The Court found that the amounts regarding the plaintiff’s alleged ongoing wage loss claim could be readily calculated and evaluated by the defendant based upon the information provided.

The Court additionally noted that, on the basis of the plaintiff’s alleged punitive damages claims alone as set forth in the state court Complaint, the defendant had the ability to remove the case to federal court when the complaint. was served.

Overall, the Court found that, where the defendant did not remove the case within the thirty day period allowed, the plaintiff’s motion to remand the case to state court was granted.

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


I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton for bringing this case to my attention.

Federal Court Upholds Timeliness of Removal of UIM Case to Federal Court

In the case of Ward v. Progressive Pref. Ins. Co., No. 2:23-CV-03666-KNS (E.D. Pa. Jan. 19, 2024 Scot, J.), the Eastern Federal District Court denied a Plaintiff’s Motion to Remand this UIM action that the carrier had removed from state court on the basis of diversity jurisdiction.

The Plaintiff had argued that the removal was untimely under 28 U.S.C. §1446(b)(3) because the carrier filed its removal notice more than thirty (30) days after receiving a demand letter showing that the amount if controversy exceeded the $75,000.00 jurisdiction threshold. 

The Plaintiff additionally argued that the case was removed to federal court more than one (1) year after the commencement of the action in violation of 28 U.S.C. §1446(c)(1).

The federal court disagreed and ruled that the removal notice was timely filed under §1446(b) because Progressive removed the action within thirty (30) days of the Complaint, which was the “initial pleading” referred to in the removal statute.

The federal court additionally noted that neither §1446(b)(3) nor the 1-year limitations period under §1446(c)(1) applied to this case.

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


Source: “The Legal Intelligencer Federal Case Alert” (Feb. 22, 2024).

Federal Court Denies Motion To Remand To State Court, But Grants Motion To Transfer Venue

In the case of Farmington Cas. Co. v. HP Inc., No. 2:23-CV-01022-KBH (E.D. Pa. Nov. 21, 2023 Hodge, J.), the court addressed a Motion to Remand and venue issues in a fire loss subrogation claim by an insurance company.

In this case, the court declined to remand the case back to the state court given that there was diversity of the parties and the Defendant’s reference to a state court action involving other parties did not compel a decision that the case be remanded. In other words, the Plaintiff’s efforts to rely upon non-parties, who were involved in the related state court action, did not support the request for a remand in this federal court case in terms of an allegation of lack of diversity of jurisdiction.

In denying the Motion to Remand, the court further held that it could not consider discretionary factors like arguments of judicial economy in evaluating whether or not a case should be remanded.

The Eastern District Federal Court otherwise ruled that the case would be transferred to the Middle District Court of Pennsylvania given that that was where the fire occurred and where the homeowners had purchased the alleged computer that allegedly caused the fire and where the Plaintiff’s daughter, who was the executrix of the Plaintiff’s estate resided.

The court additionally noted that only one (1) corporate witness and none of the expert witnesses resided in the Eastern District, which offered further support of a transfer of the case to the Middle District.

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 (Dec. 14, 2023).

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).

Pleading of Federal Regulations In Trucking Case Does Not Create Federal Issue In Terms of Removal Statute

In the case of Caeser v. Greentree Transportation Co., No. 2:23-CV-03005-GAM (E.D. Pa. Sept. 13, 2023 McHugh, J.), the court addressed a Plaintiff’s Motion to Remand a fatal trucking accident case from federal court back to state court.

In the Plaintiff's Complaint, the Plaintiff cited multiple violations of regulations promulgating by the Federal Motor Carrier Safety Administration, the US Department of Transportation, and the Federal Highway Administration.

The Defendant asserted that these allegations created a federal issue thereby making this case removable pursuant to 28 U.S.C. §1331.

The federal court disagreed and granted the Plaintiff’s Motion to Remand the case back to the state court.

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 (Oct. 6, 2023).

Source of image: Photo by Jim Wilson from www.unsplash.com

Third Circuit: No Attorney Fees Allowed on Remand of a Case To State Court Except in Limited Circumstances

In the case of Medical Associates of Erie v. Zaycowsky, No. 22-1402 (3d. Cir. Aug. 9, 2023 Hardiman, J., Porter, J., and Fisher, J.), the United States Court of Appeals for the Third Circuit concluded that federal district courts lacked the authority to award attorney’s fees under 28 U.S.C. §1447(c) when a case has been properly removed from state court but subsequently remanded based upon a forum selection clause. 

The Third Circuit noted that §1447(c) instead only allows for an award of attorney fees in cases involving a remand where the removal to federal court failed to meet the statutory requirements, or where the court lacked subject matter jurisdiction over the removed case. 

In other words, the authority of a district court to offer a remedy for alleged abuses of the removal procedure is limited.

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

Source: Article: “3rd Cir. Clarifies When District Courts Can Award Attorney Fees on Remand” By Riley Brennan of the Pennsylvania Law Weekly (Aug. 11, 2023).

Photo by Sora Shimazaki on www.pexels.com.

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.

Case Against Wal-Mart Remanded Back to State Court After Defendant Found Not To Have Removed the Case in Time

In the case of Berry v. Wal-Mart Stores, East, L.P., No. 21-3496 (E.D. Pa. Feb. 2, 2022 Slomsky, J.), the court granted a Plaintiff’s Motion to Remand the case back to state court.

The court noted that the case would be remanded because the Defendants failed to remove the matter to federal court within thirty (30) days of being able to ascertain that the amount in controversy to establish diversity jurisdiction was met.

The court noted that, even though the Complaint did not directly state the amount in controversy, the facts pled noted that the Plaintiff had sustained a crush injury to her foot and that the Plaintiff was still undergoing continuing medical treatment. The court felt that, from these allegations, the Defendants could have reasonably and intelligently concluded that the jurisdictional amount was exceeded.

As such, the court reiterated the rule that the removal period began to run at the time the suit was filed, and not when the Plaintiff may have later specified damages in a Case Management Memorandum. 

While the court noted that the Case Management Memorandum could qualify as an “other paper” under the removal statute for purposes of attempting to ascertain the amount in controversy, the Complaint in this case was found to have provided enough information to start the running of removal period.

In this regard, the court noted that an ad damnum clause for a dollar amount less than the jurisdictional amount does not necessarily preclude a finding that the Plaintiff is seeking more than that amount. 

The court in this Berry case stated that, since the Plaintiff did not agree to stipulate to limit damages to the jurisdictional amount, the Defendants had other bases upon to believe that more money than the jurisdictional limit was being sought by the Plaintiff.

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 from the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Fabio Bracht on www.unsplash.com.

Motion to Remand Regular Use Exclusion Issues Back to State Court Denied

In the case of Dayton v. The Auto Ins. Co. of Hartford, Conn., No. CV-3:20-1833 (M.D. Pa. Nov. 5, 2021 Mannion, J.), the federal court applied the Reifer factors and refused to remand this automobile insurance coverage action involving a dispute over the application of the regular use exclusion relative to the Plaintiff’s underinsured motorist coverage. 

The court found that, as of the date of its decision in this case, the law of Pennsylvania and regular use exclusion was settled and, as such, this issue did not constitute a reason in support of remanding the matter to the state court.

The court otherwise granted the Defendant’s carrier’s Motion to Dismiss the Complaint for failing to plead specific facts sufficient to make out a plausible bad faith claim. The court did allow the Plaintiff an opportunity to file an Amended Complaint.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris, and also the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this decision to my attention.

Source of image:  Photo by Jim Wilson on www.unsplash.com.

Motion To Remand Denied in COVID-19 Business Interruption Coverage Case

In the case of Greenwood Racing, Inc. v. American Guar. & Liability Ins. Co., No. 2:21-CV-01682-GJP (E.D. Pa. Oct. 20, 2021 Pappert, J.), the court denied a Motion by a Plaintiff to remand a case back to state court from federal court in a matter involving a declaratory judgment action on business interruption coverage issues related to the COVID-19 pandemic.

The entity involved is a casino and racetrack.   

According to the Opinion, the Plaintiff had initially filed the matter in a state court seeking a judicial declaration that their insurers were required to insure losses sustained by the Plaintiff as a result of the COVID-19 pandemic. The carrier removed the case to federal court and the Plaintiff moved to remand the case back.

The court noted that it was denying the motion in light of recent guidance from the Third Circuit Court of Appeals on the standard of review applicable to motions to remand as set forth in the case of DiAnoia’s Eatery, LLC v. Motorists Mut. Ins. Co., 10 F.4th 192 (3d Cir. 2021).

After reviewing the recent decision by the Third Circuit Court of Appeals, the federal trial court in this Greenwood declined to remand this declaratory judgment coverage action back to the state court where the federal court found that the case did not involve any novel issues of state law and where there was no parallel state proceeding pending. As such, the Plaintiff’s Motion to Remand was denied.

Anyone wishing to review a copy of this October 20, 2021 decision on the motion to remand may click this LINK.

And here is another LINK, this one to the same Court's November 1, 2021 dismissing the Complaint before it after finding that the allegations of the Plaintiff's Complaint primarily seeking coverage under the pollution event clause was vague and speculative.  Leave to amend was granted.  The companion Order to that decision can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 18, 2021).

Source of image:  Photo by Drew Rae from www.pexels.com.

Judge Robert D. Mariani of Federal Middle District Court Addresses Motion for Remand

In the case of Miller v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-1433-RDM (M.D. Pa. Dec. 14, 2021 Mariani, J.), the court granted a Plaintiff’s Motion to Remand a UIM breach of contract case back to the Lackawanna County Court of Common Pleas.

In this matter, the Plaintiff had UIM coverage with State Farm in the amount of $25,000.00 per person. In her Complaint, the Plaintiff demanded judgment against State Farm in an amount in excess of $50,000.00 plus interest, costs, and other such relief the court may deem appropriate. 

With her Motion for Remand, the Plaintiff asserted that the amount in controversy did not exceed the federal jurisdiction limit of $75,000.00 and that, as such, the action must be remanded to the state Court of Common Pleas.

Judge Mariani reviewed the removal statute and noted that this statute was required to be strictly construed, with all doubts to be resolved in favor of a remand.

The court additionally noted that the test for determining whether a case involved the requisite federal jurisdictional amount is whether, from the allegations in the pleadings, it is apparent, “to a legal certainty” that the Plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the Plaintiff never was entitled to recover that amount. See Op. at 3-4.

Judge Mariani also noted that the United States Supreme Court has long held that Plaintiffs may limit their claims in order to avoid federal subject matter jurisdiction. 

Moreover, where a Plaintiff has not specifically alleged in the Complaint that the amount in controversy is less than the jurisdictional minimum, the case must still be remanded if it appears to a legal certainty that the Plaintiff cannot recover the jurisdictional amount.

The court also noted that, where a Complaint does not limit its request for damages to a precise monetary amount, the District Court must make an independent appraisal of the potential value of the claim.

Judge Robert D. Mariani
M.D.Pa.

Judge Mariani noted that it was alleged in the Complaint that the Plaintiff’s UIM policy provided UIM benefits in the amount of $25,000.00 per person. The court also emphasized that there was no companion claim for bad faith or punitive damages asserted in the Complaint. It was additionally noted that, relative to this Motion for Remand, the Plaintiff conceded that the Defendant’s only exposure was to $25,000.00 UIM policy limits.

The court rejected the defense argument that federal court jurisdiction had been met under the analysis that the tortfeasor had $100,000.00 in liability coverage which required the Plaintiff to prove her damages were in excess of that liability coverage in order to gain access to the UIM benefits, which necessarily placed the amount in controversy above the $75,000.00 jurisdictional requirement.

Judge Mariani stated that there was no case law in support of this argument. The court reiterated that the Plaintiff’s breach of contract recovery was restricted to the $25,000.00 limits set forth in her State Farm policy.

As such, where the court deemed that it appeared to a “legal certainty” that the Plaintiff could not recover the jurisdictional amount necessary to confer subject matter jurisdiction on this federal court, and given that the federal court is required to strictly construe removal statutes with all doubts to be resolved in favor of a remand, the decision was made to remand the case to the Lackawanna County Court of Common Pleas.

In a footnote at the end of his decision, Judge Mariani again emphasized “the importance of the fact that Plaintiff’s Complaint only alleges a claim for underinsured motorist benefits/breach of contract.”  See Op. at p. 7, fn.3. In that same footnote, Judge Mariani stated that, “[i]f Plaintiff had included a claim for bad faith, the Court would find that remand was not appropriate.” Id.

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

Judge Mariani Remands Another Case Back to State Court

Making a U-Turn Back to State Court

In the case of Blizman v. Travelers Home and Marine Ins. Co., No. 3:21-CV-1546-RDM (M.D. Pa. Dec. 9, 2021 Mariani, J.), the court granted a Plaintiff’s Motion to Remand a breach of contract and bad faith claim back to the state court.

According to the Opinion, the Plaintiff filed a Writ and served it upon the carrier.

Thereafter, the defense attorney entered his appearance on behalf of the carrier.

The Complaint was then filed and sent to the defense lawyer. The Complaint was mailed to the insurance company.

Judge Mariani found that the Complaint had been served and that the timeline for removal was triggered on the date that the defense lawyer was served since the Writ was previously properly served and the defense attorney had previously entered his appearance.

In so ruling, the court reviewed the removal procedure set forth under 28 U.S.C. §1446 and noted that the removal statutes are required to be strictly construed with all doubts to be resolved in favor of a remand where appropriate.

Applying that law to the case before him, Judge Mariani ruled that the case should be remanded.

Anyone wishing to read this decision may click this LINK. The Court's companion Order can be viewed HERE.

Source of image: Photo by Patrick Doyle on Unsplash.