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A slip-and-fall case against Acme Markets was sent back to state court after a federal judge ruled that removal of the suit to U.S. District Court on diversity grounds was improper because the plaintiffs have valid claims against the store manager, a Pennsylvania resident. A lawyer for Acme argued that store manager Paul Moran was “fraudulently joined” in the case for the sole purpose of defeating diversity jurisdiction. But Senior U.S. District Judge Jan E. DuBois found that Acme had failed to meet its heavy burden of proving that the claims against Moran were a sham because the Pennsylvania courts would likely treat them as valid. “In slip-and-fall cases at grocery stores, Pennsylvania courts routinely examine the potential negligence of store owners and their agents,” DuBois wrote in his nine-page opinion in Beck v. Albertson’s Inc. Under 3rd Circuit case law, DuBois said, joinder is deemed to be fraudulent only “where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment.” After canvassing Pennsylvania law on the issue, DuBois concluded that plaintiffs George and Ruth Beck clearly had a “colorable” claim against Moran. The ruling marks the second time this year that an Eastern District judge has remanded a slip-and-fall case against Acme back to the state courts after rejecting its argument that a store manager was improperly joined as a defendant. In a May 19 decision in Wilson v. Acme Markets – a slip-and-fall case with facts nearly identical to the Becks’ case – Senior U.S. District Judge John P. Fullam rejected the claim of fraudulent joinder and concluded that the complaint “undeniably alleges potentially valid claims against the individual defendant” store manager. According to court papers, Ruth Beck suffered serious injuries when she fell in the freezer aisle at an Acme supermarket in Northeast Philadelphia on Dec. 6, 2003. Attorney Jonathan T. Warren of Solomon Berschler Warren Schatz & Flood filed the suit naming Acme’s parent company, Albertson’s Inc. of Boise, Idaho, and store manager Moran as defendants. Acme’s lawyer, W. Kelly McWilliams of Gibley & McWilliams, removed the case to federal court and argued Moran should be dismissed from the suit because he was named only to avoid federal diversity jurisdiction. McWilliams argued Moran cannot be held liable because he was not even working on the date of the accident and he is an employee who cannot be viewed as a legal entity independent from the corporate defendant. “The claims [against Moran] add nothing to the case beyond the claims already made against Acme/Albertsons,” McWilliams wrote. “Paul Moran was named to defeat diversity and such pleadings are a sham.” But Warren argued in his motion to remand that the claims against Moran were valid even if he was not working on the date of Beck’s fall because he was sued for his negligent management of the store. At the time the suit was filed, Warren said, the plaintiffs “reasonably believed” Moran was the supervisor on duty on the day of Ruth Beck’s fall. “Plaintiffs were led to this belief when a card bearing defendant Moran’s name and contact information was handed to plaintiff George Beck as his wife was being loaded into the ambulance,” Warren wrote. But Warren said the claims against Moran would be valid even if he were not in the store at the time because the suit accuses him of being responsible for “systemic problems” that led to the conditions that caused Beck’s fall. The suit alleges that Moran failed to properly train and supervise employees in the maintenance of the store; implement a system for the protection of interior walking surfaces; and properly implement a system for covering shopping carts to provide shelter from inclement weather. It also alleges that Moran allowed the store’s floor to remain uneven and did nothing to rectify a condition by the floor and freezer that permitted water to accumulate. “These are colorable claims because Pennsylvania law dictates that a supervisor or director has a duty of reasonable care toward the consumer,” Warren wrote. Now DuBois has sided with Warren and rejected McWilliams’ argument that Moran cannot be viewed as a separate legal entity from the corporate defendant. “The premise of this argument appears to be that plaintiffs can recover the damages they seek from Acme alone, without joining Moran,” DuBois wrote. Even if that were so, DuBois said, “that does not satisfy defendants’ heavy burden of proving fraudulent joinder.” The plaintiffs “chose to name both Moran and Acme,” DuBois said, and while there “may be repercussions for purposes of diversity jurisdiction, there is no reason for the court to interfere with this inevitable consequence.” Since Moran “could be found liable under Pennsylvania law,” DuBois said, “the court must remand.” (Copies of the nine-page opinion in Beck v. Albertson’s Inc. , PICS No. 05-1952, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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