ACCARDI v. DUNBAR ARMORED, INC. et al
Filing
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MEMORANDUM. SIGNED BY HONORABLE JOHN R. PADOVA ON 8/13/2013. 8/13/2013 ENTERED AND COPIES E-MAILED.(amas)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VINCENT J. ACCARDI
v.
DUNBAR ARMORED, INC., ET AL.
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CIVIL ACTION
NO. 13-1828
MEMORANDUM
Padova, J.
August 13, 2013
Plaintiff Vincent J. Accardi filed this negligence action in the Court of Common Pleas of
Philadelphia County against Defendants Dunbar Armored, Inc. (“Dunbar”), Marcus T. Cosby,
and Antoine Edwards after a car Plaintiff was driving was hit by a Dunbar armored car driven by
Cosby.
Edwards was a passenger in the armored car.
Plaintiff and Edwards are both
Pennsylvania citizens, but Dunbar nevertheless removed the case to this Court on April 8, 2013,
asserting that Edwards was fraudulently joined and that we therefore have diversity jurisdiction.
Presently before the Court is Plaintiff’s Motion to Remand, contesting Defendants’ assertion of
fraudulent joinder. For the following reasons, we grant the Motion to Remand.
I.
BACKGROUND
The Complaint alleges the following facts. On March 31, 2011, Cosby, a citizen of New
Jersey, was driving an armored car, owned by Dunbar, a Maryland corporation. (Compl. ¶¶ 2-3,
9.) Edwards was Cosby’s passenger, navigator, co-driver, and/or co-operator of the armored car,
and was also serving as a security guard, delivery person, armored guard, and/or courier. (Id. ¶¶
9, 52.) Both Cosby and Edwards were employees of Dunbar. (Id. ¶¶ 8-9.)
Cosby was traveling at an unsafe speed on Route 13 South when he belatedly noticed
traffic stopped for a traffic signal ahead at Route 13’s intersection with Beaver Dam Road in
Bristol Township, Pennsylvania. (Id. ¶¶ 11-12.) At the time, Plaintiff was also driving his
vehicle on Route 13, heading south. (Id. ¶ 11.) Plaintiff’s car was at a complete stop in the left
turn lane at the Route 13/Beaver Dam Road intersection, with its left turn signal engaged. (Id.)
Cosby attempted to stop quickly to avoid a collision with the stopped traffic in front of him, and
lost control of the armored car. (Id. ¶ 13.) In doing so, the armored car crossed over into the left
turn lane, where Plaintiff’s car was at a standstill, and crashed into the right rear of Plaintiff’s
car. (Id.) The impact of the collision caused Plaintiff’s vehicle to spin around, forcing it into the
left lane of Route 13 North, where it collided with a third vehicle that was traveling northbound
on Route 13 North. (Id. ¶ 14.) Plaintiff suffered permanent life-altering injuries and his car was
deemed a total loss as a result of the collision. (Id. ¶¶ 17-18.)
Following the accident, Plaintiff commenced a civil action in the Philadelphia Court of
Common Pleas against Dunbar, Cosby, and Edwards, asserting claims of negligence against all
three Defendants.
He rests his claim against Edwards, the sole non-diverse defendant, on
assertions that Edwards breached numerous duties as a passenger, including duties to help and
assist the driver, to pay full attention to the road, to warn the driver of hazards, to not cause a
distraction, and to inspect the armored car for mechanical problems. Defendants filed a Notice
of Removal on April 8, 2013, asserting that Plaintiff had fraudulently joined Edwards in order to
defeat diversity jurisdiction. On May 7, 2013, Plaintiff filed his Motion for Remand.
II.
LEGAL STANDARD
“In a suit with named defendants who are not of diverse citizenship from the plaintiff, the
diverse defendant may still remove the action if it can establish that the non-diverse defendants
were ‘fraudulently’ named or joined solely to defeat diversity jurisdiction.” In re Briscoe, 448
F.3d 201, 216 (3d Cir. 2006).
However, “the removing party carries a heavy burden of
persuasion” in establishing fraudulent joinder. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851
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(3d Cir. 1992) (quotation and citation omitted).
“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[s] or seek a joint
judgment.” Id. at 851 (quotation omitted).
“In evaluating the alleged fraud, the district court must focus on the plaintiff’s complaint
at the time the petition for removal was filed” and “must assume as true all factual allegations of
the complaint.”
Id. at 851-52 (quotation omitted).
The court must also “resolve any
uncertainties as to the current state of controlling substantive law in favor of the plaintiff.” Id. at
852 (quotation omitted). Significantly, the court’s inquiry into the validity of a complaint when
faced with an assertion of fraudulent joinder is less searching than that triggered upon the filing
of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Id. Thus, we will
not find a defendant’s joinder to be fraudulent “[s]imply because we come to believe that, at the
end of the day, a state court would dismiss the allegations against a defendant for failure to state
a cause of action.” Lyall v. Airtran Airlines, Inc., 109 F. Supp. 2d 365, 367-68 (E.D. Pa. 2000)
(citation omitted). Rather, we will only find fraudulent joinder where the plaintiff’s claims are
“‘wholly insubstantial and frivolous.’”
Batoff, 977 F.2d at 852 (quoting Lunderstadt v.
Colafella, 885 F.2d 66, 70 (3d Cir. 1989)). “In other words, a finding of fraudulent joinder is
usually reserved for situations where recovery from the nondiverse defendant is a clear legal
impossibility.” West v. Marriott Hotel Servs., Inc., Civ. A. No. 10-4130, 2010 WL 4343540, *3
(E.D. Pa. Nov. 2, 2010). “Fraudulent joinder should not be found simply because plaintiff has a
weak case against a non-diverse defendant.” Id. (citing Boyer v. Snap-on Tools Corp., 913 F.2d
108, 111 (3d Cir. 1990)). “[I]f there is even a possibility that a state court would find that the
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complaint states a cause of action against [a] resident defendant[], the federal court must find that
joinder was proper . . . .” Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 851).
If we determine that a defendant’s joinder was fraudulent, we can “disregard, for
jurisdictional purposes, the citizenship of [the] nondiverse defendant[], assume jurisdiction over
[the] case, dismiss the nondiverse defendant[], and thereby retain jurisdiction.” Briscoe, 448
F.3d at 216 (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). On the other hand,
if we determine that we do not have subject matter jurisdiction over the action because joinder of
the non-diverse defendant was not fraudulent, we must remand the case to state court. Id. (citing
28 U.S.C. § 1447(c)).
III.
DISCUSSION
Plaintiff argues in his Motion that we should remand the case to the Philadelphia Court of
Common Pleas because we lack diversity jurisdiction insofar as both he and Edwards are
Pennsylvania citizens. (Mot. for Remand ¶ 3.) Plaintiff specifically disputes Defendants’
assertion that Edwards was fraudulently joined and asserts to the contrary that he has a colorable
negligence claim against Edwards. (Id. ¶¶ 4, 6, 13.) As stated above, Defendants have a “heavy
burden of persuasion” when asserting that a defendant has been fraudulently joined. Briscoe,
448 F.3d at 217. Here, Defendants argue that Plaintiff has no basis in fact or colorable ground to
support his claim against Edwards, because Pennsylvania law provides no right of action against
Edwards, who was merely a passenger in the Dunbar vehicle.1
Under Pennsylvania law, the general rule is that “a passenger owes no duty to protect
third-persons or other passengers from the negligent acts of the driver.” Welc v. Porter, 675
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Defendants do not argue that Plaintiff has “no real intention in good faith to prosecute
the action against the defendant[s] or seek a joint judgment.” Batoff, 977 F.2d at 852.
Consequently, we need not address that alternative basis for a finding of fraudulent joinder.
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A.2d 334, 338 (Pa. Super. Ct. 1996) (citing cases). There are, however, exceptions to this
general rule for circumstances in which the driver is the servant or agent of the passenger, where
the driver and the passenger are engaged in a joint enterprise, and/or where the passenger had the
“‘right to share in the control the vehicle.’” Id. at 340 (quoting Rodgers v. Saxton, 158 A. 166,
169 (Pa. 1931)). When any of these exceptions are proven, the negligence of the driver will be
imputed to the passenger. Id. (quoting Rodgers, 158 A. at 169). In the instant case, Plaintiff
maintains that Edwards and Cosby were not only engaged in a joint enterprise of the business of
armored truck transportation, but also shared a right to control the armored car. (See Mot. for
Remand ¶ 26.)
Whether or not a passenger has a right to control a vehicle is a legal question, but the
resolution of that question depends upon the facts involved in any particular case. Bock v.
Baker, 44 Pa. D. & C.3d 60, 68 (Armstrong Cnty. Ct. Common Pleas 1987). Notably, an
individual’s “right to control” is not exclusively dependent on whether the individual owns the
vehicle or, absent ownership, whether the individual has the “absolute right to control who could
drive [the vehicle]”; rather, the test is “who was in charge of the actual operation of the vehicle at
the time of the accident.” Kocher v. Creston Transfer Co., 166 F.2d 680, 686 (3d Cir. 1948).
Similarly, although an individual’s “authority to direct where to drive may be taken into
consideration[,] that authority alone is insufficient to resolve the controversy.” Id. (citing Harris
v. E. Oostdyk Motor Transp. Corp., 17 A.2d 347 (Pa. 1941)). In the end, the United States Court
of Appeals for the Third Circuit has stated that the test as to whether a passenger has the right to
control a vehicle, “[i]n pragmatic language,” is whether the passenger “has any right or authority
to give orders or directions to the driver for the operation of the vehicle, or alternately, whether
the driver is under a duty to obey any directions which the passenger might attempt to give with
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respect to where the automobile should be driven, or in what manner it should be used or
operated.” Id. (citing Mork v. Caslov, 192 A. 903 (1937)).
Defendants concede that Pennsylvania law provides that “liability can be imputed to a
passenger in a vehicle in . . . limited circumstances.” (Defs.’ Resp. to Mot. for Remand at 6.)
They nevertheless argue that, under the circumstances presented in this case, Plaintiff cannot
establish any of the prerequisites to the imposition of passenger liability, including that Edwards
had a right to control the armored car. In support of their assertion that Plaintiff cannot state a
colorable claim against Edwards based on a right to control, Defendants rely almost exclusively
on a declaration from Cosby, which states that Edwards was a back seat passenger who in no
way influenced Cosby’s operation of the armored car. (Not. of Removal ¶¶ 16, 18.)
As noted above, in evaluating a claim of fraudulent joinder, we are to “focus on the
plaintiff’s complaint at the time the petition for removal was filed” and “must assume as true all
factual allegations of the complaint.”
Batoff, 977 F.2d at 851-52 (quotation omitted).
Defendants nevertheless maintain that we can look beyond the facts alleged in the Complaint and
consider Cosby’s declaration in connection with our analysis. In support of this assertion, they
cite to two cases: Briscoe and Weaver v. Conrail, Civ. A. No. 09–5592, 2010 WL 2773382
(E.D. Pa. July 13, 2010). However, the only evidence that the trial courts in Briscoe and Weaver
considered in assessing fraudulent joinder was evidence that was either developed in prior
proceedings or evidence subject to judicial notice. Weaver, 2010 WL 2773382, at *9 (noting
that all of the evidence that the court considered was evidence “of which the Court may take
judicial notice”); Briscoe, 448 F.3d at 219-21 (finding that the district court committed no clear
error of law in considering, in fraudulent joinder analysis, evidence established from prior
proceedings and facts subject to judicial notice). In addition, both cases make it clear that that
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any review of “extrinsic evidence must be limited to reliable evidence that does not go to the
merits of the plaintiff’s case.” Weaver, 2010 WL 2773382, at *6; see also Briscoe, 448 F.3d at
221 (emphasizing that a limited review of the record from prior proceedings and matters properly
subject to judicial notice does “not risk crossing the line between a proper threshold
jurisdictional inquiry and an improper decision on the merits”). Thus, we find that neither case
supports a conclusion that we can consider Cosby’s declaration, which is neither evidence from a
prior proceeding nor evidence subject to judicial notice, and which goes directly to the merits of
Plaintiff’s claims.
There is, however, some caselaw in this District that supports the proposition that, in very
limited circumstances, we are authorized to consider affidavits when deciding a question of
fraudulent joinder. That caselaw suggests that an affidavit can be pertinent to our fraudulent
joinder inquiry if it presents undisputed facts that establish “with complete certainty” that the
non-diverse defendant has no liability. Yellen v. Teledne Cont’l Motors Inc., 832 F. Supp. 2d
490, 504 (E.D. Pa. 2011) (citing Smoot v. Chicago, Rock Island & Pac. R.R. Co., 378 F.2d 879,
881-82 (10th Cir. 1967)). Typically, we may consider such affidavits only if they “completely
divorce[] the challenged defendant from the allegations” in the complaint. Lyall, 109 F. Supp.
2d at 368 n.8 (discussing Smoot, 378 F. Supp. 2d at 881-82); see also Weaver, 2010 WL 277382,
at *7 (stating that a court conducting a fraudulent joinder analysis may consider “the absence of
proof of a defendant’s involvement in claimed conduct” (citations omitted)).
Here, Cosby states in his declaration that Edwards’ presence “in the back seat of the
Dunbar vehicle did not cause the vehicle [he] was operating to strike the Plaintiff’s vehicle,” and
that “Edwards also did not adversely affect, impact or influence [his] operation of the Dunbar
vehicle prior to the subject accident.” (Cosby Decl. ¶¶ 9-10.) While these factual assertions
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arguably support a conclusion that Edwards did not influence Cosby’s driving and did not cause
the accident at issue, they do not “completely divorce” Edwards from the allegations in the
Complaint, at least insofar as they do not refute that Edwards was travelling with Cosby in the
armored car at the time of the accident. Lyall, 109 F. Supp. 2d at 368 n.8 (citation omitted).
Even more importantly, they do not speak to the determinative question under Pennsylvania law
of whether Edwards had a “right to control” the armored car. As explained above, if Edwards
shared in a right to control the vehicle, then any negligence by Cosby will be imputed to
Edwards, thereby subjecting Edwards to liability. See Welc, 675 A.2d at 338 (citation omitted).
The factual questions that must be resolved in order to determine if Edwards had a “right to
control” the vehicle is whether Edwards had “any right or authority to give orders or directions to
the driver for the operation of the vehicle, or alternately, whether the driver [was] under a duty to
obey any directions which the passenger might attempt to give with respect to where the
[vehicle] should be driven, or in what manner it should be used or operated.” Kocher, 166 F.2d
at 686 (quotation omitted). Because Cosby’s declaration says nothing regarding Edwards’s
“authority to give orders or directions” and Cosby’s duty to obey any such orders or directions,
the declaration by itself cannot suffice to establish that Plaintiff does not have a colorable
passenger liability claim against Edwards based on Edwards’ right to control the vehicle. Thus,
even if we were to consider Cosby’s declaration pursuant to the standards set forth in Yellen and
Lyall, we would reject Defendants’ contention that Plaintiff has not stated a colorable claim in
light of the facts set forth in the declaration.
Defendants alternatively contend that Plaintiff has not asserted a colorable claim under
Pennsylvania law because there is a lack of “recent” authority that supports a claim against a
passenger like Edwards. At the same time, however, Defendants have pointed to no recent
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authority that specifically precludes Plaintiff’s claim against Edwards. Indeed, in our view, the
Superior Court’s relatively-recent 1996 decision in Welc makes it clear that Pennsylvania law
continues to recognize claims against passengers under a variety of circumstances, at least one of
which may be implicated here. Although we concede that our “inquiry into Pennsylvania law
has not been penetrating,” we also understand that “it should not be,” because a claim “which
can be dismissed only after an intricate analysis of state law is not so wholly insubstantial and
frivolous that it may be disregarded for purposes of diversity jurisdiction.” Batoff, 977 F.2d at
853. As long as there is “even a possibility that a state court would find that the complaint states
a cause of action against [a] resident defendant[], [we] must find that joinder was proper.”
Briscoe, 448 F.3d at 217 (quotation omitted). We therefore reject Defendants’ suggestion that a
lack of “recent” Pennsylvania law recognizing a claim against a passenger in Edwards’s position
renders Plaintiff’s claim “insubstantial and frivolous,” such that it is not colorable. Id. at 218.
IV.
CONCLUSION
For the reasons stated above, we conclude that Defendants have failed to meet their
heavy burden of establishing fraudulent joinder.
We therefore grant Plaintiff’s Motion to
Remand and remand the case to the Philadelphia Court of Common Pleas. An appropriate order
follows.
BY THE COURT:
/s/ John R. Padova, J.
_________________________________
John R. Padova, J.
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