A federal judge in Philadelphia has granted a motion by a Holland, Pa. man to remand his lawsuit over a broken wine glass back to state court.
U.S. District Judge Elizabeth T. Hey issued her ruling March 12 in a memorandum and order filed at the U.S. District Court for the Eastern District of Pennsylvania.
The ruling means the case of Patrick McGuigan v. Darden, et al will be remanded back to the Philadelphia Court of Common Pleas.
McGuigan originally filed his lawsuit in state court in September 2011, but one of the defendants – they number 13 in total – filed a removal notice with the U.S. District Court seeking to transfer the case to the federal venue, citing citizenship diversity and jurisdictional damages disputes.
McGuigan, who worked for defendant Longhorn Steakhouse’s Kissimmee, Fla. location, alleges in his complaint that while working as a bartender back in early September 2009, he cut his right hand, wrist and median nerve while washing a stemmed wine glass.
The suit states that McGuigan was prevented from placing the glass in the dishwasher, and had to wash it by hand, due to the glass’s delicate nature.
McGuigan, the suit claims, has had to undergo multiple surgeries to repair his injuries, which also caused him to seek psychiatric treatment to “cope with the depression and other symptomatology directly caused by the loss of use of his right wrist and hand.”
The injuries affected McGuigan’s work abilities and his leisure activities, the suit claims.
The defendants named in the lawsuit include Darden Restaurants, Inc., and various Darden affiliates, Longhorn Steakhouse, Cardinal Glass Co. and various Cardinal affiliates, ARCOROC and ARC International.
The Cardinal defendants filed a Notice of Removal with the U.S. District Court on Oct. 20, 2011, and soon after McGuigan filed a motion to remand the matter to state court.
In ruling to send the matter back to the Philadelphia Court of Common Pleas, and denying the defendant’s motion to file an amended removal notice, Hey wrote that she agreed with McGuigan’s argument that the matter should be remanded because the notice of removal fails to establish federal diversity jurisdiction.
“In support of its motion for remand, Plaintiff correctly sets forth the requirements for diversity jurisdiction, including that a party ‘must set forth with specificity a corporate party’s state of incorporation and its principal place of business,’” the judge wrote. “Plaintiff also correctly notes that the Cardinal Defendants’ notice of removal fails to set forth any of the corporate parties’ states of incorporation or principal place of business.”
Hey noted that McGuigan is not challenging the existence of diversity, “but merely argues that the notice of removal is defective in its technical pleading of diversity.”
McGuigan had also argued that the case should be remanded to state court because the ARC and Darden Defendants did not join or consent to removal, “thus rendering the notice of removal defective,” according to the judge’s memorandum.
“Here, there is no question that the Darden and ARC Defendants failed to file written consents to removal with the court, nor did they file their own notices of removal within 30 days of service of the last-served defendant,” the judge’s ruling states.
The defendants had argued that defect in the removal notice was technical, and could be remedied by filing an amended notice of removal.
“None of the cases cited by Defendants … stand for the proposition that the failure to manifest unanimous consent amounts to a technical, rather than a fundamental, defect,” the judge wrote. “Moreover, the arguments for excusing Darden and ARC Defendants’ failure to file documents evincing their consent to removal are unpersuasive.”
McGuigan’s lawsuit accuses the defendants of strict liability and negligence relating to the allegedly defective wine glass that caused his injuries.
The lawsuit was filed by attorney Thomas A. Lynam, III of the Philadelphia firm Villari, Lentz & Lynam, LLC.