Jon Campisi Sep. 20, 2013, 10:51am


A products liability complaint filed by a former Philadelphia firefighter and

his wife over allegations that the emergency worker’s safety protection mask malfunctioned while on the job must play out in state court, a federal judge has ruled.

U.S. District Judge Ronald Buckwalter, sitting in the Eastern District of Pennsylvania, granted the plaintiffs’ motion to remand their civil action to the Philadelphia Court of Common Pleas, where the suit was originally filed back on June 18.

A little more than a week after the suit’s filing, attorneys representing defendant Safeware Inc. filed a petition to transfer the civil matter to federal court, arguing that jurisdiction is proper in U.S. District Court because despite the plaintiffs’ assertion that Safeware Inc. is based in Pennsylvania, the business was actually incorporated in Maryland.

The lawsuit, which was filed by attorneys with the Philadelphia law firm of Saltz, Mongeluzzi, Barrett and Bendesky, alleges that Michael McGuire was using his Scott AV-2000 respiratory protection mask while battling a Philadelphia fire in the spring of 2011 when he became sick after the device failed due to an improper seal.

The incident caused McGuire to lose oxygen and inhale carbon monoxide and other noxious gasses and chemicals, the complaint alleges.

Aside from Safeware, the other codefendants named in the litigation are North Carolina-based Scott Technologies Inc. and Princeton, N.J.-based Tyco International Inc.

The record shows that on July 26, about three weeks after Safeware’s attorneys filed their removal notice, lawyers representing the plaintiffs, McGuire and his wife, Angelique, filed a motion to remand the case back to Philadelphia’s Common Pleas Court.

In their motion, the plaintiffs didn’t contest the federal court’s subject matter jurisdiction over the case, but rather they sought to transfer the lawsuit back to state court based on what Buckwalter, the federal judge, called  “purely procedural defect.”

The couple had argued that Safeware failed to comply with what is known as the “unanimity rule,” since the other two defendants in the case, Scott and Tyco, neither joined in the removal notice nor consented to removal, the record shows.

Safeware, rather, unilaterally removed the case to federal court on July 2, Buckwalter’s memorandum notes, and while the removal was timely under federal procedural rules, it did not include explicit consent forms signed by the codefendants.

“Safeware does not contend that the non-removing Defendants were nominal parties or were fraudulently joined,” Buckwalter wrote. “Nor is there any question that the non-removing Defendants were served with the Complaint prior to the filing of the removal petition. Simple application of the rule of unanimity thus renders the removal procedurally defective, thereby requiring remand to state court.”

Safeware’s lawyers had argued that Scott’s consent, on behalf of itself and Tyco, was implicit from its litigation in federal court.

Specifically, the record shows, a lawyer for Scott sought to obtain Safeware’s consent to its intended removal of the case to the federal venue, with an attorney representing Safeware then advising his colleague that Safeware had already removed the case three days earlier.

Safeware expressed its belief that this action showed Scott consented to the removal.

Buckwalter, however, found that argument “meritless,” writing that the courts have determined that “it is not enough for defendants who have not signed the removal petition to merely advise the removing defendant that they consent thereto, or for a removing defendant to represent such consent to the court on behalf of the other defendants.

“Rather, most courts require all defendants to voice their consent directly to the court.”

To that end, Buckwalter wrote, “oral consent and email exchanges among counsel do not constitute satisfactory consent.

“Indeed, having been served with a complaint and cross-claim, the non-removing Defendants were under certain time constraints to file their own responsive pleadings,” the judicial memorandum states. “Simple compliance with legal obligations required to avoid either violation of the Federal Rules or a default judgment does not manifest itself as implied consent to litigation in federal court.”

Buckwalter ordered the case immediately returned to the Philadelphia Court of Common Pleas.

As for the meat of the complaint, McGuire, the former firefighter, claims that due to the faulty protection mask, he suffered carbon monoxide poisoning, a severe lung smoke inhalation injury, hypoxemic respiratory failure, acute respiratory distress syndrome, delirium, cardiomyopathy, post-intensive care syndrome, rhabdomyolosis, persistent muscle weakness, memory impairment, pneumonia, recurrent lung infections, residual lung disease, decreased respiratory function, anxiety, depression, post-traumatic stress syndrome and other ills and injuries.

McGuire and his wife seek compensatory damages in excess of $50,000.

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