PHILADELPHIA – A federal judge has denied a motion to remand a wrongful death litigation brought by the estate of a young man killed when an allegedly faulty gate at a landfill dropped onto his car, to a state court.
Thomas Paul Kromer and Sandra Kay Morris (both individually and as Administrators of the Estate of Zachary Kromer, deceased) of East Millsboro first filed suit in the Philadelphia County Court of Common Pleas on March 4, 2021 versus Veolia Es Chestnut Valley Landfill, Inc., Veolia Es Solid Waste of PA, Inc., Chestnut Valley Landfill, LLC and Onyx Chestnut Valley Landfill, Inc. of McClellandtown, Veolia North America, LLC, of Boston, Mass. and John Does 1-10.
(The lawsuit was later removed to the U.S. District Court for the Eastern District of Pennsylvania on May 28, 2021.)
“On March 22, 2019, plaintiff-decedent suffered catastrophic injuries to his head and body and ultimately succumbed that same day, only after enduring significant conscious pain and suffering, as a result of a dangerous gate that lowered onto his personal vehicle [at the McClellandtown landfill facility],” the suit said.
“Upon information and belief, all of the defendants were on notice of the dangerous conditions of the subject gate and despite this notice, negligently, grossly negligently and recklessly failed to rectify, repair, renovate, and warn of this hazard at any time prior to the incident.”
Upon information and belief, prior to the incident on March 22, 2019, the suit states all of the defendants inspected the subject gate but, nevertheless, negligently, grossly negligently and recklessly failed to take any reasonable responsive action.
Allegedly, they were also on actual and/or constructive notice that subject gate posed a significant safety hazard to individuals and, nevertheless, failed to take any reasonable steps to remedy the significant safety hazard.
“On March 22, 2019, plaintiff-decedent was required to work at the aforementioned premises and when he was exiting the premises in his vehicle, he was required to, and ultimately did encounter the subject gate. Unbeknownst to plaintiff-decedent, at all relevant times herein, the gate lacked adequate safety measures, and represented a significant safety hazard,” per the suit.
“Accordingly, due to the dangerous condition of the gate which resulted from the negligence, gross negligence, and recklessness of all of the party defendants, jointly and severally, the gate lowered onto plaintiff-decedent’s vehicle and plaintiff-decedent, in turn, received catastrophic injuries. After experiencing significant conscious pain and suffering, plaintiff-decedent ultimately succumbed to his injuries and passed away that same day.”
U.S. District Court for the Eastern District of Pennsylvania Judge C. Darnell Jones II ordered the case stayed on June 23, 2021 and put pending motions from the parties relating to a transfer of venue and to dismiss the case in abeyance, and granted another motion to stay the case.
“The motion is granted. The schedule for plaintiffs to file responses under Local Rule 7.1(c) to defendant, Chestnut Valley Landfill, LLC's motion to transfer and defendant, Veolia North America, LLC’s motion to dismiss is stayed. Plaintiffs’ responses and briefs to the motions will be due 14 days after’ the Court’s ruling on any motion to remand,” Jones ordered.
“If plaintiffs do not move to remand on or before June 28, 2021, their responses will be due on July 12, 2021. Accordingly, the Clerk of Court is directed to place the motions docketed in abeyance/suspense and terminate all associated deadlines for statistical and all purposes until further order of the Court.”
The same day the stay was granted, June 23, the plaintiffs filed a motion to remand the case to state court on the basis that diversity of citizenship did not exist between the parties.
Chestnut Valley Landfill filed a response brief in opposition to the plaintiffs’ desire to remand the case, on Feb. 16.
“CVL’s sole member was GFL Everglades Holdings, LLC, a Delaware limited liability company. GFL Everglades Holdings, LLC’s sole member was Waste Industries, USA, LLC, a North Carolina limited liability company. Waste Industries USA, LLC’s sole member was Wrangler Holdco Corp., a Delaware corporation with its principal place of business in North Carolina. Corporations are citizens of their states of incorporation and principal place of business. CVL is thus a North Carolina and Delaware citizen. Veolia, whose citizenship plaintiffs do not challenge, is a Delaware citizen since a Delaware-headquartered, Delaware corporation is its sole member. Because the removing defendants have established complete diversity, the Court should deny plaintiffs’ motion to remand,” the defendant’s motion stated.
UPDATE
Based upon his finding that diversity of citizenship did exist in this case, U.S. District Court for the Eastern District of Pennsylvania Judge C. Darnell Jones II denied the plaintiffs’ motion to remand on Feb. 23 and ordered that the plaintiffs to file a response to the defendants’ motion to transfer for improper venue.
“Here, CBF, Inc. was first developed as a Pennsylvania corporation on Oct. 26, 1988. Because ‘a corporation is a citizen of its state of incorporation and principal its principal place of business,’ CBF, Inc. was a citizen of Pennsylvania. Effective Dec. 31, 2002, CBF, Inc. filed an Articles of Amendment to change the name of the corporation to Onyx Chestnut Valley Landfill, Inc. On Feb. 14, 2006, Onyx Chestnut Valley Landfill, Inc. changed its address, but the corporation remained a citizen of Pennsylvania. As of July 1, 2006, Onyx Chestnut Valley Landfill, Inc. changed its name to Veolia ES Chestnut Valley Landfill, Inc.,” Jones said.
“Effective Dec. 4, 2012, Veolia ES Chestnut Valley Landfill, Inc. changed its name to Advanced Disposal Services Chestnut Valley Landfill, Inc. As of Dec. 31, 2015, Advanced Disposal Services Chestnut Valley Landfill, Inc. became an LLC. Because ‘the citizenship of an LLC is determined by the citizenship of its members,’ Advanced Disposal Services Chestnut Valley Landfill, LLC became a citizen of North Carolina and Delaware. On Dec. 3, 2020, Advanced Disposal Services Chestnut Valley Landfill, LLC changed its name to Chestnut Valley Landfill, LLC. Thus, defendant Chestnut Valley Landfill, LLC is a citizen of North Carolina and Delaware. This only leaves Veolia North America, LLC as a remaining, viable defendant. Because Veolia North America, LLC is a citizen of Delaware, complete diversity exists. Accordingly, plaintiffs’ motion to remand must be denied.”
For counts of negligence, gross negligence, recklessness, wrongful death and survival, the plaintiffs are seeking, jointly and severally, compensatory damages, wrongful death damages, survival damages, punitive damages, costs in excess of $50,000, such other relief as this Court deems just and for a trial by jury on all issues so triable, as a matter of right.
The plaintiffs are represented by Nancy J. Winkler and Daniel J. Sherry Jr. of Eisenberg Rothweiler Winkler Eisenberg & Jeck, in Philadelphia.
The defendants are represented by Joseph R. Fowler and Matthew Vodzak of Fowler Hirtzel McNulty & Spaulding, plus Daniel David Krebbs of Marshall Dennehey Warner Coleman & Goggin, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02454
Philadelphia County Court of Common Pleas case 210300489
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com