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Brittain v. Pacific Cycle, Inc.

United States District Court, W.D. North Carolina, Statesville Division

April 19, 2018

JOSHUA MICHAEL BRITTAIN, Plaintiff,
v.
PACIFIC CYCLE, INC., WALMART STORES EAST, LP, WAL-MART, SARA WRIGHT, JOHN DOE, NATIONAL ASSEMBLERS, INC., EAST COAST ASSEMBLERS CORPORATION, NATIONAL ASSEMBERS [sic, EAST COAST ASSEMBLERS, INC., JOHN ROE COMPANY, JANE DOE COMPANY, and JACK ROE, Defendants.

          ORDER

          David C. Keesler, Judge

         THIS MATTER IS BEFORE THE COURT on “Plaintiff's Motion To Remand” (Document No. 9). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion, the record, and applicable authority, the undersigned will grant the motion.

         BACKGROUND

         Plaintiff Joshua Michael Brittain (“Plaintiff” or “Brittain”) initiated this action with the filing of his “Complaint” (Document No. 1-1) in the Superior Court of Catawba County, North Carolina on February 28, 2017. The Complaint notes that Plaintiff and his mother, Kathy Brittain, purchased a 29-inch Mongoose Ledge 3.1 Men's Mountain Bike (the “Mountain Bike”) at Walmart Store # 4224 in Conover, Catawba County, North Carolina. (Document No. 1-1, pp. 3, 6). The Mountain Bike was manufactured by Defendant Pacific Cycle, and was unpackaged and pre-assembled when purchased by the Brittains. (Document No. 1-1, p.6).

         On or about February 16, 2014, Plaintiff was biking in Hickory, North Carolina on the Mountain Bike when the front wheel separated from the front forks and its “dropouts” while Plaintiff was traveling downhill. (Document No. 1-1, pp. 6-7). Plaintiff suffered multiple serious injuries, including fractures to his vertebrae, thereby causing permanent paralysis in the lower half of his body. (Document No. 1-1, p.7).

         The Complaint asserts claims for: (1) negligence [Pacific Cycle]; (2) breach of the implied warranty of merchantability [Pacific Cycle]; (3) negligence [Walmart and Wright]; (4) breach of the implied warranty of merchantability [Walmart and Wright]; (5) negligent hiring, training, supervision and instruction [Wright, Walmart, Assemblers, John Roe Company and/or Jane Doe Company]; (6) negligence [John Doe, Assemblers, John Roe Company, Jack Roe and/or Jane Doe Company]; (7) breach of express warranty [all Defendants]; (8) breach of implied warranty of fitness for a particular purpose [all Defendants]; (9) unfair and deceptive trade practices [all Defendants]; (10) reckless conduct [Pacific Cycle, Wright, Walmart, Assemblers, John Roe Company and/or Jane Doe Company]; (11) punitive damages [all Defendants]. (Document No. 1-1, pp. 11-23).

         On August 8, 2017, Defendant Pacific Cycle (“Pacific Cycle” or “Defendant”) filed a “Notice Of Removal” (Document No. 1) with this Court. Defendants Walmart, Sara Wright (“Wright”), National Assemblers and East Coast Assemblers consented to removal. (Document No. 1, p. 2). Pacific Cycle contends that there is complete diversity between the parties because Wright, who is a citizen of Alexander County, North Carolina, is “a fraudulently joined defendant joined solely to obstruct Defendants' right to remove this case to federal court.” (Document No. 1, pp. 3-4). Pacific Cycle bases this conclusion on Wright's responses to Pacific Cycle's Request for Admission dated August 15, 2017. Id.; See also (Document No. 1-7). Pacific Cycle further contends that Defendants Jack Roe, John Roe Company and Jane Doe Company are fictitious defendants, the citizenship of which may be disregarded for purposes of diversity jurisdiction.” (Document No. 1, p. 6, n.1) (citing 28 U.S.C.A. § 1441 (b)).

         “Plaintiff's Motion To Remand” (Document No. 9) and “Brief In Support Of Motion To Remand” (Document No. 10) were filed on September 15, 2017. “Pacific Cycle, Inc.'s Response To Plaintiff's Motion To Remand” (Document No. 11) and the “Response Of Defendants National Assemblers Inc. And East Coast Assemblers, Inc. To Plaintiff's Motion To Remand” (Document No. 12) were filed on September 29, 2017. Defendants National Assemblers Inc. and East Coast Assemblers, Inc.'s response consists of one sentence informing the Court that they join “Pacific Cycle Inc.'s Response…” (Document No. 11).[1] See (Document No. 12). “Plaintiff's Reply Brief In Support Of Motion To Remand And Motion For Costs And Expenses” (Document No. 13) was filed on October 6, 2017.

         DISCUSSION

         In support of the pending motion, Plaintiff first cites legal standards and authority it contends are relevant to the Court's decision. (Document No. 10, pp.6-7). Plaintiff notes that “[i]f there is a possibility that Plaintiff would be able to establish a cause of action against the non-diverse defendant, Wright, then the matter must be remanded to state court.” (Document No. 10, p. 6) (citing Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999); Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999); and Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). “Furthermore, the Court should ‘resolve all doubts about the propriety of removal in favor of retained State Court jurisdiction.'” Id. (quoting Marshall, 6 F.3d at 232). “In other words, ‘[o]nce the court identifies [a] glimmer of hope for the plaintiff, the jurisdictional inquiry ends.'” Id. (quoting Hartley, 187 F.3d at 426). “The party alleging fraudulent joinder bears a heavy burden-it must show that the plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiff's favor.” Hartley, 187 F.3d at 424 (citing Marshall, 6 F.3d at 232-33).

         In addition, Plaintiff asserts that:

This action is wholly based in state law. Brittain filed his Complaint in good faith in the Superior Court of Catawba County, North Carolina, where he lives, where he purchased the Mountain Bike, where the accident occurred that paralyzed him, and where this case should be remanded.

(Document No. 10, p. 7).

         Plaintiff presents five main arguments in support of remand. (Document No. 10, pp. 7-14). The Court will briefly summarize ...


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