ALLENTOWN – A federal judge has denied the opportunity to reconsider the decision to remand a personal injury case resulting from a slip-and-fall at an Amazon facility, claiming that one of the defendant parties cannot introduce a new argument at this stage of the litigation.
According to the U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. in an Aug. 4 opinion, plaintiffs Janet and Paul Hart brought suit in the Philadelphia County Court of Common Pleas against Duke Realty and IH Services, seeking damages for various injuries and loss of consortium resulting from Janet Hart’s slip-and-fall at an Amazon facility – which Duke Realty allegedly owned and managed, and which IH Services allegedly maintained and cleaned.
Duke Realty was served with the complaint on Feb. 28, 2020. On March 17, 2020, Duke Realty filed a notice of removal in this Court based on diversity jurisdiction.
The Harts filed a motion to remand, arguing that removal was improper because Duke Realty did not obtain permission from IH Services. In response, counsel for Duke Realty asserted that she spoke with and obtain consent from IH Services’ Human Resources Manager to removal. The Harts replied that this consent was “insufficient”, because consent was not given to the Court and counsel for Duke Realty could not speak on behalf of IH Services.
On July 8, the Eastern District Court granted the motion to remand, holding that because IH Services only communicated its consent to Duke Realty and not “to the Court,” the consent was insufficient and removal violated the rule of unanimity.
This result led Duke Realty to file a motion for reconsideration of that decision, asserting that reconsideration ‘is necessary in order to correct a clear error of law or fact - IH Services, Inc. qualifies as a merely nominal party in this matter and therefore is exempt from consideration in the removal analysis.
Leeson said that Duke Realty, alleging in the motion for reconsideration that IH Services is a nominal party, was “attempting to raise a new argument, which was previously available”, but also that “new arguments cannot be brought at this stage of the litigation if they were not raised previously.”
“First, any such argument was untimely. The notice of removal made no mention of when IH Services began cleaning the facility. Allegations in this regard were made for the first time on April 9, 2020, in response to the motion to remand. However, Duke Realty never sought leave to amend the notice of removal,” Leeson stated.
“Even if it had, the request would have been untimely because amendments to the notice of removal had to be filed within 30 days of Feb. 28, 2020. This Court had not invested significant time in this case, nor were any other extraordinary circumstances present to justify an amendment to the notice of removal beyond the 30-day period.”
Leeson explained that a mere claim from IH Services, made between parties, that it did not begin servicing the facility for one month after Ms. Hart’s fall is “not sufficient for Duke Realty to satisfy its burden of showing IH Services is a nominal party.”
Leeson added the company that was responsible for cleaning the facility at the time of Ms. Hart’s fall has “a real interest in this litigation” and “there is no evidence in the record showing that a company other than IH Services was responsible for cleaning.”
“The motion for reconsideration merely asserts a new argument in support of the notice of removal, which was previously available. Not only did Duke Realty fail to allege in the notice of removal that IH Services is a nominal party, it also failed to seek leave to amend its notice to include such allegations. Duke Realty also failed to make this argument in opposition to the motion to remand, and if it had, the assertion would have been untimely,” Leeson said.
“Duke Realty cannot raise this claim for the first time in seeking reconsideration. Accordingly, Duke Realty has failed to show a need to correct a clear error of law or fact or to prevent manifest injustice. Because there also has not been an intervening change in the controlling law, nor the availability of new evidence, the motion for reconsideration is denied.”
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-01462
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com