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Susman v. Goodyear Tire & Rubber Co.

United States District Court, D. Nebraska

March 8, 2018

RYSTA LEONA SUSMAN, et al., Plaintiffs,
v.
THE GOODYEAR TIRE & RUBBER COMPANY, et al., Defendants.

          OPINION

          Slomsky, J.

         I. INTRODUCTION

         This case involves claims of negligence, strict liability, and breach of warranty stemming from an automobile accident allegedly caused by a tread separation[1] in the right rear tire of a 2003 Chevrolet Silverado SCI in which Plaintiffs Shane Loveland and Jacob Summers were riding. Plaintiffs Rysta Leona Susman, on behalf of her son Shane Loveland, and Jacob Summers instituted this action against nine Defendants, [2] including The Goodyear Tire and Rubber Company (“Ohio Goodyear”), alleging that Defendants designed, manufactured, marketed, and distributed the tire involved in the accident and are liable for their damages.

         Ohio Goodyear removed the action to this Court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a), [3] claiming that any Pennsylvania Defendant is either fraudulently joined or a nominal party named only to defeat diversity jurisdiction. Accordingly, it argues that those Defendants should be disregarded for determining diversity jurisdiction.

         Before the Court is Plaintiffs' Motion to Remand the case to the Court of Common Pleas of Philadelphia County. (Doc. No. 8.) On September 5, 2017, Defendant Ohio Goodyear filed a Response in Opposition to Plaintiffs' Motion to Remand (Doc. No. 10), and on September 19, 2017, Plaintiffs filed a Reply (Doc. No. 12). Ohio Goodyear has also filed a Sur-Reply. (Doc. No. 15.) On November 13, 2017, a hearing was held on the Motion to Remand, and on November 14, 2017, the parties filed supplemental briefs (Doc. Nos. 24, 25, 26). The Motion is ripe for a decision. For reasons that follow, Plaintiffs' Motion to Remand will be denied.[4]

         II. BACKGROUND

         A. Factual Background

         On May 1, 2015, Shane Loveland and Jacob Summers were passengers in a 2003 Chevrolet Silverado SCI pickup truck when the right rear tire of the vehicle suffered a tread separation. (Doc. No. 1-1 ¶ 10.) The tread separation caused the driver to lose control of the vehicle. (Id.) The vehicle crossed into the median and rolled over. (Id.) As a result, Loveland sustained significant brain damage and other injuries, while Summers suffered orthopedic injuries. (Id.) Plaintiffs allege that the right rear tire of the vehicle was a Goodyear Wrangler tire.[5] (Id. ¶ 11.) They assert that the design, manufacture, and marketing of the tire were defective and unreasonably dangerous and that the tire tread separation caused the loss of control of the vehicle. (Id.)

         B. Procedural History

         1. The First Action Against Pennsylvania Goodyear

         On March 8, 2017, Plaintiffs filed a lawsuit in the Court of Common Pleas of Philadelphia County, naming Goodyear Tire and Rubber Company (“Pennsylvania Goodyear”) as the sole Defendant. Susman et al. v. Goodyear Tire & Rubber Co., Civ. A. No. 17-1682 (E.D. Pa. Apr. 12, 2017), ECF No. 1-1. The Complaint alleges negligence in Count I, strict liability in Count II, and breach of warranty in Count III, stemming from the design, manufacture, and sale of the tire involved in the accident. Id. at 4-8.

         The Complaint asserts that Plaintiffs Loveland and Summers are residents of Nebraska and that Pennsylvania Goodyear “is a domestic Pennsylvania entity that is actively registered with the Pennsylvania Department of State as a domestic Pennsylvania business entity.” Id. ¶¶ 2-5. The Complaint explains that although Pennsylvania Goodyear is a domestic Pennsylvania business entity, it can be served at 200 Innovation Way, Akron, Ohio. Id. at 3, ¶ 5.

         On March 13, 2017, Ohio Goodyear accepted service of process on behalf of Pennsylvania Goodyear.[6] Id. at ECF No. 1-2 at 2-4. On April 12, 2017, Ohio Goodyear timely removed the case to the United States District Court for the Eastern District of Pennsylvania. Id. at ECF No. 1. Ohio Goodyear argued that the Court had diversity of citizenship jurisdiction over the action under 28 U.S.C. § 1332(a) because Plaintiffs are citizens of Nebraska, and Ohio Goodyear, the only true Defendant, is a citizen of Ohio. Id. at 2.

         Ohio Goodyear attached the April 12, 2017 sworn Declaration of Daniel T. Young, Assistant Secretary of Ohio Goodyear, to the Notice of Removal.[7] Id. at ECF No. 1-3. In the Declaration, Young stated that Ohio Goodyear is incorporated under the laws of Ohio and that it maintains its corporate headquarters at 200 Innovation Way, Akron, Ohio. Id. ¶¶ 4, 5. He explained that although the Pennsylvania Department of State website lists Pennsylvania Goodyear as an active, domestic Pennsylvania corporation, the documents under the Pennsylvania Goodyear heading relate to Goodwear Tire & Rubber Company (“Goodwear”), a separate entity, and apparently were linked to Pennsylvania Goodyear in error. Id. ¶¶ 7-9. He stated that to the best of his knowledge and belief, Ohio Goodyear “is not and has never been related to” Goodwear and that the tire at issue was designed and manufactured by Ohio Goodyear. Id. ¶¶ 9, 10.

         Ohio Goodyear then filed a Motion to Transfer the case to the United States District Court for the District of Nebraska, Id., at ECF No. 5, which Plaintiffs did not oppose. Instead, Plaintiffs filed a Motion to Remand. Id. at ECF No. 6. On May 15, 2017, Ohio Goodyear provided Plaintiffs with a letter from the Pennsylvania Department of State explaining that Pennsylvania Goodyear was listed in error and should have been listed as Goodwea r. (Doc. No. 1-1 at 3.) On May 18, 2017, Plaintiffs filed a Stipulation of Dismissal Without Prejudice,, and the action was terminated. See Stipulation of Dismissal Without Prejudice, Susman et al. v. Goodyear Tire & Rubber Co., Civ. A. No. 17-1682 (E.D. Pa. May 18, 2017), ECF No. 8.

         2. The Instant Action

         On May 1, 2017, while Ohio Goodyear's Motion to Transfer and Plaintiffs' Motion to Remand were still pending before this Court under Civil Action No. 17-1682, Plaintiffs filed a Praecipe to Issue Writ of Summons in the Court of Common Pleas of Philadelphia County, naming nine Defendants in the Writ. (Doc. No. 1-1.) Defendants are (1) Pennsylvania Goodyear; (2) Pennsylvania Goodyear d/b/a Ohio Goodyear; (3) Pennsylvania Goodyear d/b/a Goodwear; (4) Goodwear; (5) Goodwear d/b/a Ohio Goodyear; (6) Goodwear d/b/a Pennsylvania Goodyear; (7) Ohio Goodyear; (8) Ohio Goodyear d/b/a Pennsylvania Goodyear; and (9) Ohio Goodyear d/b/a Goodwear. (Id. at 18.)

         On July 18, 2017, Plaintiffs filed the instant Complaint in the Court of Common Pleas of Philadelphia County, naming the nine entities listed above as Defendants. (Id.) Plaintiffs attempted to serve Goodwear and Pennsylvania Goodyear by mailing original service of process to Ohio Goodyear's corporate headquarters in Akron, Ohio. (Doc. No. 1 at 5 n.3.) But Ohio Goodyear rejected service on behalf of those entities and was the only Defendant served in this action. (Id.) The Complaint asserts the same facts and claims as the dismissed Complaint in Civil Action No. 17-1682. In Count I, Plaintiffs allege negligence for the defective design, manufacture, marketing, and distribution of the tire at issue. (Doc. No. 1-1 at 21-22.) In Count II, Plaintiffs assert strict liability for the defective design, manufacture, marketing, and distribution of the tire at issue. (Id. at 22-23.) In Count III, Plaintiffs claim breach of the warranty of merchantability with respect to the tire. (Id. at 24-25.)

         On August 7, 2017, Ohio Goodyear removed the case to this Court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a). (Doc. No. 1.) Ohio Goodyear submits that Plaintiffs, citizens of Nebraska, are diverse from Ohio Goodyear, a citizen of Ohio. (Id. ¶ 20.) Ohio Goodyear submits that although Goodwear appears to be a citizen of Pennsylvania, it has been fraudulently joined in this action, and thus its citizenship does not affect jurisdiction. (Id. ¶¶ 23, 26.) It further alleges that Pennsylvania Goodyear is a nominal Defendant-that is, it does not actually exist and therefore its citizenship does not affect the Court's exercise of subject matter jurisdiction. (Id. ¶ 22.) On August 8, 2017, Ohio Goodyear filed a Motion to Transfer the action to the District of Nebraska (Doc. No. 2), and on August 11, 2017, it filed an Answer to Plaintiffs' Complaint (Doc. No. 3).

         On August 23, 2017, Plaintiffs filed a Motion to Remand to the Court of Common Pleas of Philadelphia County, arguing that Goodwear is a citizen of Pennsylvania and that pursuant to 28 U.S.C. § 1441(b)(2), [8] the action is not removable. (Doc. No. 8-1 at 1.) On September 5, 2017, Ohio Goodyear filed a Response in Opposition to the Motion to Remand. (Doc. No. 10.) Along with other exhibits, Ohio Goodyear attaches a second sworn Declaration of Daniel T. Young, Assistant Secretary of Ohio Goodyear, dated September 1, 2017 (“September Young Declaration”). (Doc. No. 10-1.)

         In the September Young Declaration, Young reiterates that Ohio Goodyear is an Ohio company. (Id. ¶¶ 4-6.) He states that to the best of his knowledge, Ohio Goodyear is not related to the Pennsylvania business, Goodwear, and has not permitted Goodwear to do business as Ohio Goodyear. (Id. ¶ 7.) He also states that Plaintiffs' claims rest on activities undertaken by Ohio Goodyear “and not at all by either of the supposed Pennsylvania business entities named as defendants in this matter.” (Id. ¶ 9.) He asserts that Ohio Goodyear designed, manufactured, sold, and warranted the tire at issue without the input or assistance of Goodwear. (Id. ¶¶ 10-13.) Finally, Young submits:

14. To the best of my knowledge, the supposed Pennsylvania entity that plaintiffs refer to as [Goodwear] does not exist and, in any event, it played no role in any of the activities that underlie each of the claims raised in this action.
15. I have been informed by counsel that they have confirmed with the Pennsylvania Department of state that the other supposed Pennsylvania business entity named by plaintiffs, [Pennsylvania Goodyear], does not exist. In any event, [Ohio Goodyear] designed, manufactured, sold, and warranted the tire at issue without the input or assistance of that supposed Pennsylvania business entity. Further, [Ohio Goodyear] has no affiliation whatsoever with [Pennsylvania Goodyear]-no trademark agreements, no licensing agreements, no business dealings, and certainly no agreement that one can do business as or otherwise represent the other. Outside of plaintiffs' allegations ...

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