PHILADELPHIA – A lawsuit brought against Apple and Best Buy by the parent of a minor who suffered head and burn injuries allegedly while using an iPhone 11 Pro cell phone, has been remanded to state court by a federal judge.
Ashley Neiman (individually and as the guardian and natural parent of A.A., a minor) of Wilkes-Barre first filed suit in the Philadelphia County Court of Common Pleas on March 25 versus Apple, Inc. of Cupertino, Calif., Best Buy of South Richfield, Minn. and Chuck Sullick, of Wilkes-Barre.
“On Dec. 3, 2019, plaintiff purchased an Apple iPhone 11 Pro from Best Buy located at 449 Arena Hub Plaza, Wilkes-Barre Township, PA 18702,” the suit stated.
“On Jan. 27, 2020, plaintiff. A.A., was using the subject Apple iPhone 11 Pro for its intended use when a black substance started to come out of liar ear. Plaintiff sustained injuries including but not limited to a concussion, headache, dizziness, tinnitus and a burn of her left ear.”
The suit alleged that A.A.’s injuries were the result of the product’s defective design.
“The severe injuries suffered by the minor child during the subject incident are the actual results of the unreasonably dangerous and defective design of iPhone/iPhone accessories that the defendants failed to properly design and manufacture. Defendants failed to safely distribute and sell the iPhone/iPhone accessories,” per the suit.
“Any and all modifications and alterations were made by defendants with the intention of prioritizing profits over the safety of the consumer. The negligence, negligence per se, carelessness, recklessness and/or willful and wanton misconduct of defendants directly and proximately caused severe injuries to plaintiff.”
The action was removed to the U.S. District Court for the Eastern District of Pennsylvania on May 3, and counsel for both Apple and Best Buy each separately answered the complaint on May 10.
In each of the defendant’s answers, they denied the plaintiff’s allegations and each put forth at least 20 affirmative defenses.
“Plaintiff’s complaint fails to state a cause of action upon which relief may be granted. The alleged injuries of plaintiff were the result of plaintiff’s own negligence which negligence exceeded any alleged negligence by answering defendants, all such alleged negligence by answering defendants having heretofore been expressly denied, and therefore pursuant to the Pennsylvania Comparative Negligence Act, plaintiff’s claims are barred,” per Best Buy’s answer to the complaint.
“Plaintiff’s claims are fully barred and mitigated by the theory of contributory negligence and/or voluntary assumption of the risk. Plaintiff’s claims are barred by the applicable statute of limitations. If the answering defendants are found to have been negligent, strictly liable, and/or liable for breach of warranty with respect to the allegations set forth in plaintiff’s complaint, then it is the position of answering defendants that their negligence was passive, technical and secondary only, and that any injuries sustained by the plaintiff were the result of intervening negligent acts of third persons which acts were superseding causes of said injuries for which reason answering defendants are not liable.”
On May 17, the plaintiff’s counsel filed a motion to remand the case to state court, for an alleged lack of diversity of citizenship among the parties and thus, a lack of federal jurisdiction for the case.
“This Court does not have jurisdiction over this matter under 28 U.S.C. Section 1332(a) because there is not complete diversity of citizenship between plaintiffs and defendants as the plaintiffs and defendant, Chuck Sullick, are both citizens of the Commonwealth of Pennsylvania,” per the remand motion.
“Moreover, the burden is on the defendants to show there is complete diversity and the amount in controversy exceeds $75,000. The defendants have not met this burden and it is too late for them to do so now that plaintiff’s motion to remand has been filed.”
Plaintiff counsel argues that the Court should take as true the plaintiff’s averments that defendant Chuck Sullick sold the defective Apple iPhone 11 Pro to the plaintiffs. Moreover, there is clearly a reasonable basis supporting the claim against defendant, Chuck Sullick, and the claims against him cannot reasonably be deemed “wholly insubstantial and frivolous.”
“Thus, under the case law, because the claims against defendant Chuck Sullick are not ‘wholly insubstantial and frivolous’, complete diversity does not exist and this case should be remanded back to state court where it was originally filed in the Philadelphia County Court of Common Pleas,” the remand motion stated.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh ruled on July 6 to remand the case to state court.
“A defendant has the right to remove a civil action from state court if the case could have been brought originally in federal court. 28 U.S.C. Section 1441(a). For removal based on diversity of citizenship, federal jurisdiction requires complete diversity between the parties – every plaintiff must be of diverse state citizenship from every defendant. Given that plaintiff and defendant Sullick are both Pennsylvania citizens, if Sullick is properly joined, complete diversity does not exist,” McHugh said.
“The doctrine of fraudulent joinder is an exception to the complete diversity requirement. In an action that does not appear to satisfy the requirements for diversity jurisdiction, defendants may assert ‘fraudulent joinder’ and establish complete diversity if they can demonstrate that there is no lawful basis for recovery against the non-diverse defendant. However, the fraudulent joinder exception ‘should not be invoked lightly’ because the “removal statutes are to be strictly construed against removal.”
McHugh added that diverse defendants alleging fraudulent joinder must show “not just that the claims against the non-diverse defendant lack merit, but that those claims are ‘wholly insubstantial and frivolous’, which imposes a ‘heavy burden of persuasion’ on the removing party.”
According to McHugh, the defendants did not meet this burden and the plaintiff’s claim is not “wholly insubstantial and frivolous.”
“Plaintiff’s complaint claims that Sullick ‘was the general manager, at the Best Buy store at 449 Area Hub Plaza…who sold plaintiffs the Apple iPhone 11 Pro.’ This paragraph, while ambiguous, appears to plead that Sullick sold plaintiff the defective iPhone. Plaintiff further charges that Sullick failed to properly test the iPhone and to adequately warn plaintiff of the dangers of the defective iPhone,” McHugh said.
“If the complaint is accepted as true, plaintiff appears to allege that Sullick
affirmatively sold the phone, engaged in inadequate testing of the device, and provided ineffective warnings. This suffices to state a claim for misfeasance, as plaintiff alleges Sullick is liable for ‘the improper performance of an act,’ not the mere ‘omission of an act which a person ought to do.”
Though McHugh felt that the plaintiff’s allegations “may strain credulity, and her ultimate case against Sullick may be weak”, he reiterated that the defendants only “must show that the claim against the non-diverse defendant is wholly insubstantial and frivolous.”
“It is likely the case that Sullick was named for the purpose of defeating diversity, but that is irrelevant to the issue of fraudulent joinder. Because I cannot conclude that there is no set of facts whereby plaintiff might establish that Sullick participated in the commission of a tort under Pennsylvania law, remand is warranted,” McHugh stated.
For multiple counts of negligence, products liability and/or strict liability, breach of implied warranty of merchantability and loss of services, the plaintiff is seeking damages in excess of $50,000, plus compensatory damages, interest, punitive damages, cost of suit, attorney’s fees and any such relief as this Honorable Court deems equitable, just and proper.
The plaintiff is represented by Michael J. Pisanchyn and Bradley D. Moyer of The Pisanchyn Law Firm, in Scranton.
The defendants are represented by John V. Petrycki Jr. of Turner O’Mara Donnelly & Petrycki in Cherry Hill, N.J. and Basil A. DiSipio of Lavin Cedrone Graver Boyd & DiSipio, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02028
Philadelphia County Court of Common Pleas case 210302528
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com