Jon Campisi Jan. 17, 2013, 8:28am

A U.S. District judge has agreed to remand to state court a wrongful death claim filed by

the widow of a United States Forest Service employee who died in the summer of 2010 when the small plane in which he was riding crashed in central Pennsylvania.

West Virginia attorney John R. Merinar, Jr. originally filed suit on behalf of plaintiff Elizabeth C. Snider back in late May 2010 at the Philadelphia Court of Common Pleas, but lawyers for the defendants, Continental Motors, Inc., Teledyne Technologies Inc. and Technify Motor USA, Inc., subsequently removed the action to the federal court in Philadelphia.

The defense attorneys had argued that venue is proper in U.S. District Court because of diversity of citizenship.

The plaintiff resides in West Virginia, as did her deceased husband, Daniel Snider, who was one of three U.S. Department of Agriculture employees who perished on June 21, 2010, when the small plane the government had chartered to conduct an aerial pest detection survey crashed in Lock Haven, Pa., which is near State College.

The others who died in the crash were New York State resident Patrick Jessup, who was piloting the small aircraft, and Rodney L. Whiteman, another Forest Service worker.

The Snider complaint is one of three separate claims arising from the tragedy that are pending on the federal court’s docket.

In the present complaint, Snider is suing on behalf of herself and the couple’s child, Lee Snider.

Another defendant in the litigation is Sterling Airways, Inc., which was in charge of operating the airplane.

After the suit was filed in state court, the Teledyne defendants removed the action to the federal venue.

The plaintiffs subsequently moved to transfer the case back to Philadelphia’s Common Pleas Court, arguing that certain Teledyne defendants are, in fact, Pennsylvania citizens and therefore were not fraudulently joined to the litigation.

In his memorandum and order, U.S. District Judge J. Curtis Joyner also concluded that the inclusion of the Teledyne defendants’ third-party claims against the Forest Service pursuant to the Federal Tort Claims Act “neither affects the propriety of the removal nor independently precludes remand.”

“Accordingly, we must remand the entire action to the Court of Common Pleas of Philadelphia County,” the judge wrote.

The defendants had argued that even if the removal to federal court was improper, the presence of the Forest Service as a third-party defendant precludes remand to state court.

Joyner wrote that he joins those courts that have interpreted Federal Rule of Civil Procedure 1441 (b)(2) to mean that the federal bench cannot ignore the presence of unserved forum defendants if none of the defendants have been formally served before removal.

That particular rule states that the presence of a citizen of the forum state as a defendant only prevents removal of a case over which the federal court may exercise its diversity jurisdiction if the forum defendant is “properly joined and served.”

“Accordingly … we conclude that the filing of a notice of removal prior to formal service upon any of the Defendants does not permit us to ignore the presence of unserved forum Teledyne Defendants for purposes of the forum defendant rule,” Joyner wrote. “Because it is undisputed that the removing Teledyne Defendants filed their notice of removal in this action prior to any of the named Defendants receiving formal service, we may still apply the form defendant rule in these circumstances.”

The judge also determined that defendants TDY Industries LLC and Allegheny Technologies Inc. do not appear to have been fraudulently joined to the litigation.

“The forum defendant rule therefore applies, and the Teledyne Defendants’ removal invoking this Court’s diversity jurisdiction was procedurally defective because TDY and Allegheny are citizens of the forum state,” the judge’s ruling states.

The Teledyne defendants had also argued that the presence of their third-party claims against the Forest Service prevents the court from remanding the action in its entirety to Common Pleas Court.

Joyner, however, wrote that, “We may not consider the presence of the third-party claims against the Service in determining the propriety of the removal and that the existence of the third-party claims against the Service does not independently preclude remand.”

The judge went on to write that at the time the plaintiffs filed their claim in state court, the Teledyne defendants had not yet filed their third-party complaint against the Forest Service, “so we may not consider the third-party complaint in determining whether the Teledyne Defendants properly removed.”

Joyner also pointed out in his opinion that although the Teledyne defendants “argue vigorously” against remand by invoking the Forest Service’s interest in having the case remain in federal court, the Forest Service itself has argued that remand to state court is proper.

Joyner also denied without prejudice the Teledyne defendants’ motion for leave to file an amended third-party complaint and their motion to consolidate.

Teledyne Technologies Inc. is successor in interest to defendants TDY and Allegheny, while defendant Technify is a successor in interest to TDY, Allegheny, TTI and Continental.

Snider and her son seek to recover damages for lost income and earning capacity as a result of her husband’s untimely death. The plaintiffs also seek punitive damages as well as damages for pain and suffering.

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