PENNSYLVANIA RECORD

A woman suing the makers of an infant carrier that allegedly caused the death of her child

has succeeded in getting the case remanded to state court.

Anthoinette Medley filed suit against Infantino LLC in June 2010 at the Philadelphia Court of Common Pleas, but the defendant ended up removing the tort action to the federal court in downtown Philadelphia, the record shows.

The other defendants named in the complaint are Wal-Mart Stores East Inc., the Philadelphia Wal-Mart store where the product had been purchased, store managers Steve Myers and Jeffrey Weiss, Sears Holdings Corp., Kmart Corp., and Kmart of Pennsylvania.

Medley’s infant son, Nelsir Scott, died on Feb. 20, 2009, while Medley was carrying the child in a “SlingRider” infant carrier manufactured by Infantino, her complaint alleges.

The plaintiff originally sought to hold the retail defendants liable in negligence for selling a defective and unreasonably dangerous product that they knew or had reason to know was dangerous, and for failing to warn purchasers of the dangers associated with the SlingRider.

Following a period of discovery, the defendants moved for summary judgment, arguing that there was no evidence linking the baby carrier in which Nelsir died to either Wal-Mart or Kmart, also maintaining that the theory of alternative liability was inapplicable, the record shows.

Last June, the trial court entered an order summarily granting the retail defendants’ motion for summary judgment as unopposed, although Medley moved for reconsideration on the basis that she had, in fact, filed an opposition to the defense motion.

The court eventually granted Medley’s motion for reconsideration and vacated its earlier ruling.

The retail defendants were eventually dismissed from the litigation, however, although Infantino remained, with the manufacturer arguing that the case had now become removable based on diversity jurisdiction.

After Infantino filed a motion to remove the case to the federal court, Medley filed her own motion to remand, with the plaintiff arguing that Infantino’s removal notice was filed beyond the one-year limit to remove an action based on diversity of citizenship.

U.S. District Judge Juan R. Sanchez agreed, writing in a March 1 order that Infantino lacked an “objectively reasonable basis for seeking removal.”

Infantino had argued that the one-year limit was inappropriate because Medley engaged in “flagrant forum manipulation” by joining the retail defendants, failing to vigorously prosecute her claims against them, and then voluntarily abandoning her claims against them after the one-year limitation had expired.

In his memorandum, Sanchez wrote that although Medley’s pretrial memorandum admittedly says little about the retail defendants, “the authority cited by Infantino does not persuade this Court that Medley’s limited reference to the Retail Defendants in her pretrial memorandum constitutes an abandonment of her claims against those Defendants as a matter of law.

“Notably, Medley was actively opposing the Retail Defendants’ motion for summary judgment at the time her pretrial memorandum was filed, a circumstance that undermines any inference of abandonment.”

The judge wrote that while it is “undoubtedly true” that Medley desires to try this case in state court for “tactical reasons,” the circumstances of the case don’t suggest that blatant forum manipulation is present.

“Medley did not fail to pursue discovery from the Retail Defendants, and she consistently opposed the Retail Defendants’ efforts to obtain dismissal of the claims against them, even after the one-year time limit had expired,” the ruling states. “Moreover, although Infantino characterizes Medley as having abandoned her claims against the Retail Defendants, the claims are more properly regarded as having been dismissed on the merits.”

In the end, Sanchez decided to grant remand in the case, he wrote, simply because Infantino’s notice of removal was filed beyond the one-year time limit to remove a case based on diversity of citizenship.

The judge also granted Medley’s motion seeking costs and attorney’s fees incurred as a result of the earlier removal to federal court.

Sanchez gave Medley until March 8 to submit documentation detailing the costs and expenses incurred in response to Infantino’s removal.