Leibig v. MTD Products, Inc., Civ. No. 22-4427, 2023 WL 3689983 (E.D. Pa. May 25, 2023)

The plaintiff, a Pennsylvania citizen, brought suit in Philadelphia County, claiming injuries suffered from a defective snow thrower for which a recall had been issued. He named three defendants: two out-of-state entities that allegedly manufactured the product and an in-state flea market where the product was allegedly purchased. The out-of-state manufacturers removed the case to the Eastern District of Pennsylvania, arguing that complete diversity existed.

The plaintiff filed a motion for remand, contending that complete diversity did not exist because the flea market was a citizen of Pennsylvania. The manufacturer defendants argued that the flea market’s citizenship should not be considered because it was fraudulently joined—flea markets (and analogous entities) simply provide a space for third parties to sell ordinary household items to each other and, accordingly, have no duty to check whether items sold at their premises were previously subject to safety recalls. The court agreed with the defendants and denied the plaintiff’s motion for remand, ruling that “Pennsylvania law does not impose a duty on the flea market to inspect machinery sold there and ensure it is not subject to a recall.” As the plaintiff failed to allege a recognized legal duty under Pennsylvania law against the flea market, it constituted a fraudulent joinder, and the case was properly venued in federal court based on diversity jurisdiction.

This case highlights the importance of analyzing the complaint against the co-defendants when considering potential removal of a case for diversity jurisdiction. This case makes clear that plaintiffs’ lawyers will try to include non-diverse defendants, even on tenuous legal claims, in order to file and keep a case in state court. If the complaint fails to make out a legally cognizable claim against a non-diverse defendant, and complete diversity otherwise exists, removal to federal court may still be proper.