PHILADELPHIA – Due to a lack of diversity of citizenship between the parties, a federal judge has remanded to state court litigation brought by a Northeastern Pennsylvania man, who claimed he received first and second-degree burns from Starbucks-brand coffee which spilled onto his lap.
Tyler Essex of Dunmore first filed suit in the Philadelphia County Court of Common Pleas on Nov. 8 versus Starbucks Coffee Company and Starbucks Corporation of Seattle, Wash., Petrogas Group US, Inc. of Plainview, N.Y., Applegreen USA Welcome Centres, LLC of Ewing, N.J., John Does 1-10 and ABC Corporations 1-10.
“On or about Sept. 8, 2023, at approximately 4:40 p.m., plaintiff and his brother, Brandon Essex, stopped at the Hickory Run Service Plaza in Jim Thorpe, PA. At all material times, defendants owned, controlled, possessed, managed or was otherwise responsible for the Starbucks store located in the Hickory Run Service Plaza. Plaintiff Tyler Essex, waited in the car while his brother, Brandon went in and purchased coffee at the Starbucks location inside,” the suit said.
“Plaintiff was a business invitee on defendants’ property at the time of the incident and thus, defendants owed him a duty to take all reasonable measures and precautions to discover, warn and remove all dangers they knew or should have known about. Brandon Essex entered the Hickory Run Service Plaza and went to Starbucks, where he ordered Tyler Essex a coffee with two creams and two sugars. The Starbucks employees put extremely hot black coffee filled to the absolute rim in one coffee cup, and provided Brandon Essex with another coffee cup with cream in it and two sugar packets, rather than placing the milk and sugar in the coffee as ordered. Brandon Essex brought the coffee in the car to plaintiff Tyler Essex and handed it to him, and plaintiff intended to add the cream and sugar to the black coffee.”
The suit added that due to the overfilling of the cup of extremely hot black coffee, the coffee was filled to the rim, which made the rim flimsy and the lid not stable on the coffee cup – and as a result of overfilling with extremely hot coffee, the lid popped off and the coffee spilled on plaintiff’s lower stomach, pelvis, penis, testicles and legs.
“As a direct and proximate result of the carelessness and negligence of defendants, plaintiff Tyler Essex sustained serious and permanent injuries that caused a serious impairment of body function, including without limitation, injuries to his muscles, tendons, ligaments, nerves, skin, legs, genitals, second-degree burns, first-degree burns, scarring, hypersensitivity, anxiety, mental anguish and aggravation of pre-existing conditions, if any, some or all of which injuries may be permanent; plaintiff also makes claims for injuries and losses of which he has no present knowledge,” the suit stated.
“As a further result of this accident, and by reason of the injuries as aforesaid, plaintiff has suffered and, in the future, may continue to suffer great pain and agony, mental anguish and humiliation and has been, and may in the future, be hindered from attending to his daily duties, function and occupation, to his great detriment and loss.”
On Dec. 14, defendant Applegreen USA Welcome Centres, LLC removed the action to the U.S. District Court for the Eastern District of Pennsylvania, pointing to complete diversity of citizenship between the parties and the amount of damages in question reaching the federal threshold of $75,000.
In separate answers to the litigation filed on Dec. 22 and Jan. 12, the name defendants vigorously denied the plaintiff’s allegations and asserted identical affirmative defenses.
“The complaint fails to set forth a cause of action and/or a claim for relief against answering defendant. The superseding negligence of parties and/or entities over which answering defendant had no control nor right to control relieves answering defendant of any liability. The liability of answering defendant, if any, is mitigated by the provisions of the Pennsylvania Comparative Negligence Statute. The plaintiff voluntarily assumed the risk. Any and all claims made against answering defendant are barred by the applicable statute of limitations. Any and all claims made against answering defendant are barred by the Pennsylvania Statute of Repose,” the defenses stated.
“Plaintiff has failed to mitigate his damages. Plaintiff failed to give timely notice for any alleged breach of warranty and therefore, any such claim is barred. Answering defendant was in any way negligent and therefore, plaintiff may not recover. The alleged injuries and damages of the plaintiff are not the result of any act or omission of answering defendant, nor the result of any breach of duty by answering defendants. Plaintiff's own negligence caused his injuries/damages.”
Also on Jan. 12, the motioned to remand the case to the Philadelphia County Court of Common Pleas.
“Defendants notice of removal makes the argument that all defendants cannot be considered citizens of Pennsylvania merely because plaintiff did not serve defendants in Pennsylvania. Plaintiff’s complaint does not make any statements regarding defendant’s citizenship, it only states where defendants have offices. Starbucks Coffee Company is an incorporated entity that was formed in Pennsylvania with registered offices in Seattle, Washington. Contrary to defendant’s notice of removal, Applegreen is an LLC and not a New Jersey corporation. The Pennsylvania Department of State lists Applegreen USA Welcome Centres, LLC as a Delaware limited liability company with a registered office in Dauphin County, PA. Therefore, citizenship of Applegreen is determined by the citizenship of its members. Defendants do not attach any exhibits to verify their baseless allegation that neither Starbucks Coffee Company, Starbucks Corporation, Petrogas, nor Applegreen can be considered citizens of Pennsylvania,” the remand motion stated, in part.
“According to the Pennsylvania Department of State, defendant Starbucks Coffee Company can be considered a citizen of Pennsylvania, thus destroying diversity of citizenship and federal subject matter jurisdiction; in addition, defendants have failed to meet their burden of showing diversity as they did not provide any information regarding Starbucks’ citizenship and citizenship of Applegreen’s LLC members. Plaintiff Tyler Essex resides in Dunmore, Pennsylvania, he is a citizen of Pennsylvania. As a result of defendants’ failure to state the citizenship of Applegreen’s LLC members, plaintiff is unaware whether Applegreen is a citizen of Pennsylvania. According to the Pennsylvania Department of State’s website, Starbucks Coffee Company is an entity that was formed in Pennsylvania in 1995. Hence, for diversity jurisdiction purposes, Starbucks Coffee Company is considered a citizen of Pennsylvania. Starbucks Coffee Company owns, controls, and is otherwise responsible for the Starbucks located at the Hickory Run Service Plaza; Defendants have not alleged Starbucks Coffee Company was fraudulently joined. Because plaintiff and Starbucks Coffee Company are citizens of Pennsylvania for diversity purposes, complete diversity is destroyed and this court lacks subject matter jurisdiction over the instant action.”
The remand motion added that “the case should be remanded to state court due to the defendants’ failure to plead facts sufficient to show complete diversity of citizenship in their notice of removal”, and that “the party asserting federal jurisdiction has the burden of establishing the factual bases for jurisdiction.”
“Plaintiff’s complaint does not establish defendants’ citizenship, thus, Petrogas and Applegreen had the obligation to plead sufficient facts necessary to establish complete diversity of citizenship and they failed to do so. This matter must be remanded to the Philadelphia County Court of Common Pleas, as this case involves only state law claims and there is no federal diversity jurisdiction. Pursuant to 28 U.S.C. Section 1447(c), plaintiff hereby seeks remand of this action back to the Philadelphia County Court of Common Pleas, Pennsylvania because plaintiff’s claims are under state law, federal diversity jurisdiction pursuant to 28 U.S.C. Section 1332(a)(1) does not apply to this matter,” the motion said.
Starbucks Coffee Company opposed the remand motion in a Jan. 23 filing.
“In their motion to remand, plaintiff incorrectly states that for diversity of citizenship purposes, Starbucks Coffee Company can be considered a citizen of Pennsylvania, thus destroying diversity of citizenship and federal subject matter jurisdiction. Plaintiff has not cited any cases to support the assertion that when a corporation merely registers to do business in a state or commonwealth, it becomes a citizen of that state or commonwealth. Rather, it is well settled that to determine the citizenship of a corporation, whether for purposes of diversity under 28 U.S.C. Section 1332 or for removal under Section 1441(b), courts use the familiar test announced by the Supreme Court in Hertz Corp. v. Friend,” Starbucks’ opposition filing read.
“Under Hertz, a corporation is a citizen of its state of incorporation and its principal place of business, i.e., its ‘nerve center.’ A nerve center is ‘the place where the corporation’s high level officers direct, control and coordinate the corporation's activities,’ which is typically ‘found at a corporation’s headquarters.’ A corporation’s nerve center ‘is a single place,’ meaning a corporation’s nerve center is static, regardless of the conduct at issue in a particular case.”
The opposition motion continued that “in using the Hertz test to determine the citizenship of Starbucks for purposes of diversity, it is readily apparent that Starbucks is a citizen of Washington (and Washington only) where Washington is both its state of incorporation and principal place of business or ‘nerve center.”
“Starbucks was incorporated in Olympia, Washington on Nov. 4, 1985 and the corporation’s headquarters is located in Seattle, Washington at 2401 Utah Ave. As such, for purposes of diversity of citizenship, defendant Starbucks Coffee Company is a citizen of Washington,” the motion continued.
That filing was followed by a similarly-styled motion opposing the remand from defendants Petrogas Group US, Inc. and Applegreen USA Welcome Centres, LLC on Feb. 2.
“The members of Applegreen USA Welcome Centres are Blackstone Infrastructure Partners and Applegreen US Welcome Centers, part of Applegreen’s parent company. Blackstone Infrastructure Partners is a citizen of New Jersey, with an address of 208 Harristown Road, Suite 102, Glen Rock and Applegreen US Welcome Centers, part of Applegreen’s parent company, is a citizen of Ireland with an address of Block 17, Joyce Way, Park West Business Park, D12 F2V3. With plaintiff being a citizen of Pennsylvania, and no defendant being a citizen of Pennsylvania, diversity of citizenship exits,” the latter companies’ opposition filing stated.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert granted the plaintiff’s motion to remand the case to the Philadelphia County Court of Common Pleas, on Feb. 22.
“Starbucks and Petrogas – both corporations – have Washington and New York citizenship, respectively, based on their states of incorporation and principal places of business. Applegreen’s citizenship, however, remains unclear. In defendants’ notice of removal, Applegreen was described as a New Jersey corporation, with its principal place of business also in New Jersey. In his motion to remand, Essex claimed Applegreen is a Delaware LLC with a registered office in Pennsylvania. Defendants’ response to Essex’s motion recasts Applegreen as an LLC and states its members – Blackstone Infrastructure Partners and Applegreen US Welcome Centers – are citizens of New Jersey and Ireland, respectively. Defendants have not provided sufficient evidence of Applegreen’s citizenship to demonstrate complete diversity,” Pappert said.
“For one, defendants fail to account for the description of Applegreen as a corporation, not an LLC, in its notice of removal. Second, defendants claim that one of Applegreen USA Welcome Centres’ members is ‘Applegreen US Welcome Centers, part of Applegreen’s parent company.’ This vague description leaves open questions about the relationship between Applegreen USA Welcome Centres and Applegreen US Welcome Centers, insofar as they are distinct entities. Third – and most importantly here – defendants do not provide support for their claims of Applegreen’s citizenship; instead, they list the addresses of Blackstone Infrastructure Partners and Applegreen US Welcome Centers, attach some of the prior case filings as exhibits, and cursorily argue they have established diversity.”
For a lone count of negligence, the plaintiff is seeking damages, individually, jointly, severally and vicariously, in a sum greater than $50,000, plus interest, delay damages, punitive damages and costs of suit.
The plaintiff is represented by Theodore C. Levy and Colleen J. Borum of Fine & Staud, in Philadelphia.
Defendants Starbucks Coffee Company and Starbucks Corporation are represented by Bradley D. Remick of Marshall Dennehey in Philadelphia, and defendants Petrogas Group US, Inc. and Applegreen USA Welcome Centres, LLC are represented by David G. Volk of Cipriani & Werner, in Blue Bell.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04952
Philadelphia County Court of Common Pleas case 231001045
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com