I don’t want to be in federal court, how do I get back to state court?

Typically, if jurisdiction is appropriate a motion to remand to state court in Minnesota will not be successful.  But a motion to remand from federal to state court in Minnesota may work if the defendant is nominal and not a real party in interest.

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Laura Maxwell, as Trustee
for the Heirs and Next of Kin
of P.M., Decedent,
Plaintiff,
v.
Sassy, Inc.; Kid Brands, Inc.;
Bacati, Inc.; and Target Corporation,
jointly and individually,
Defendants.

MEMORANDUM
OPINION AND ORDER

INTRODUCTION
This matter is before the Court on Plaintiff’s Motion to Remand (Doc. No. 16).
For the reasons set forth below, the Court grants Plaintiff’s motion.
BACKGROUND
Plaintiff initiated this action in Hennepin County District Court asserting causes of
action for negligence, strict liability, breach of express and implied warranties,
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misrepresentation, and false statement in advertising against Defendants Sassy, Inc.
(“Sassy”), Kid Brands, Inc. (“Kid Brands”), Bacati, Inc. (“Bacati”), and Target
Corporation (“Target”). (Doc. No. 8, ~ 3, Ex. A, (“CompI.”).) Plaintiff is a resident of
Arkansas and brought this suit as Trustee for the Heirs and Next of Kin of her infant son.
Kid Brands is incorporated and has its principal place of business in New Jersey.
(CompI. ~ 3.) Kid Brands “designs, imports, labels, promotes, markets and distributes
juvenile consumer products such as cribs, toys, and nursery furnishings.” (Id. ~ 3.) Sassy
is incorporated and has its principal place of business in Michigan. (Id. ~ 4.) Sassy
“designs, manufactures, tests, labels, promotes, markets, and sells the Sassy Sleep
Positioner.” (Id. ~ 4.) Bacati is incorporated and has its principal place of business in
Texas. (Id. ~ 5.) Bacati “designs, tests, manufactures, markets, labels, promotes,
distributes and sells home furnishings, including the Bacati Bumper Pad.” (Id.) Target is
incorporated in and has its principal place of business in Minnesota. (Id. ~ 6.) Target
“marketed, distributed and sold juvenile consumer products, including the Sassy Sleep
Positioner.” (Id. ~ 6.)
In her Complaint, Plaintiff alleges that her infant son suffocated due to the use of
both the Bacati Bumper Pad and the Sassy Sleep Positioner, the latter of which was sold
by Target. (Id. ~~ 10, 16,27.) Specifically, Plaintiff alleges that her infant son rolled
from the Sassy Sleep Positioner into the Bacati Bumper Pad and suffocated. (Id. ~ 27.)
In addition, Plaintiff alleges that Target (along with Kid Brands and Sassy) “advertised,
represented, labeled, promoted, warranted, and marketed the Sassy Sleep Positioner as
safe and effective in preventing crib-related deaths” despite the fact that they “knew
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or … should have known that there was no competent scientific or medical proof that the
Sassy Sleep Positioner in fact prevented crib-related deaths but to the contrary the Sassy
Sleep Positioner was dangerous and could contribute to or cause crib suffocation.”
(Id. ~ 13-14.) Plaintiff further alleges that Target, Sassy, and Kid Brands knew of at
least 11 deaths, dating back 13 years, associated with the use of sleep positioners, yet
failed to warn consumers of the risk and dangers associated with their use. (Id. ~ 15.)
On March 25,2011, Bacati removed the action to this Court, citing diversity of
citizenship between the parties and an amount in controversy greater than $75,000. (Doc.
No. 1 ~ 5.) Plaintiff now moves the Court to remand this action to the state court from
which it was removed pursuant to 28 U.S.C. § 1447(c). Plaintiff alleges that Bacati’s
Notice of Removal is legally deficient on two grounds: lack of subject matter jurisdiction
and defects in the removal procedure.
DISCUSSION
I. Legal Standard
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction … to the district court of the United States for the district and division
embracing the place where such action is pending.” A party opposing removal may bring
a motion requesting that the federal court remand the case back to state court. 28 U.S.C.
§ 1447(c). The district court shall remand the case back to state court if it determines that
the court lacks subject matter jurisdiction. 28 U.S .C. § 1447(c); Martin v. Franklin
Capital Corp., 546 U.S. 132, 134 (2005). On a motion to remand, the party seeking
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removal and opposing remand bears the burden of demonstrating federal jurisdiction by a
preponderance of the evidence. In re Prempro Prods. Liab. Litig., 591 F.3d 613,620 (8th
Cir. 2010); In re Bus. Men’s Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). The
Court should resolve any doubt as to the propriety of removal in favor of remand.
Prempro, 591 F.3d at 620; Bus. Men’s Assur., 992 F.2d at 183.
II. Motion to Remand
Diversity jurisdiction exists where there is (1) complete diversity of citizenship
and (2) the amount in controversy exceeds the jurisdictional minimum of $75,000,
exclusive of interest and costs. 28 U.S.C. § 1332(a). The parties do not dispute that the
amount in controversy in this case exceeds $75,000. In addition, the parties do not
dispute that Plaintiff is diverse from all Defendants. However, where removal is based
on diversity jurisdiction, as it is here, no defendants may be a resident of the state in
which the action was brought. 28 U.S.C. § l44l(b). Because Target is a resident of
Minnesota, the question of whether this case was properly removed rests on Target’s
status as either a real party in interest or a nominal defendant in this action.
Defendants argue that Target is merely a nominal party whose citizenship must be
disregarded for purposes of evaluating subject matter jurisdiction, and therefore this
action is properly venued in this federal court on diversity grounds. Conversely, Plaintiff
argues that Target is a real defendant, and therefore Target’s Minnesota citizenship
renders removal of the case improper.
The Supreme Court of the United States has long held that “a federal court must
disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real
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parties to [a] controversy.” Navarro Savings Ass’n v. Lee, 446 U.S. 458, 461 (1980). See
also Iowa Public Servo Co. v. Medicine Bow Coal Co., 556 F.2d 400, 404 (8th Cir. 1977)
(explaining that if a non-diverse party is not a real party in interest, that party’s presence
may be ignored in determining diversity jurisdiction). When determining whether a
particular party is ”nominal” for jurisdiction purposes, the Court inquires as to whether
the plaintiff has stated a cause of action against that particular party. Iowa Public Servo
Co., 556 F.2d at 404.
Here, Defendants assert that Plaintiff has failed to allege facts that, even if true,
would support her claims against Target. The Court considers the sufficiency of
Plaintiff’s complaint against Target as it would under the standard applied in a motion to
dismiss pursuant to Rule 12(b)(6). Under that standard, the Court construes all
reasonable inferences from those facts in the light most favorable to Plaintiff, the
complainant and the party seeking remand. See Morton v. Becker, 793 F.2d 185, 187 (8th
Cir. 1986). In doing so, however, the Court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799,805 (8th Cir.
1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City
of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). To survive a motion to dismiss, a
complaint must contain “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although a complaint need
not contain “detailed factual allegations,” it must contain facts with enough specificity
“to raise a right to relief above the speculative level.” Id. at 555.
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Plaintiff alleges that Target is jointly and severally liable under causes of action
for strict liability, negligence, express and implied warranties, misrepresentation, and
violation of false statement in advertising. The Court fIrst considers Plaintiffs strict
liability claim as it is asserted against Target. Plaintiff alleges that Target is strictly liable
for marketing, distributing, and selling the Sassy Sleep Positionerl because Target “knew
or … should have known … the Sassy Sleep Positioner was dangerous and could
contribute to or cause crib suffocation.” (Compi. ~ 14.) Specifically, Plaintiff asserts that
Target is liable for its failure to warn of the risks associated with the use of the sleep
positioner.
Defendants argue that Plaintiff cannot maintain a strict liability claim against
Target because Target is a non-manufacturer seller. Relevant to this argument,
Minnesota Statute § 544.41 provides the following:
Subdivision 1 …. In any product liability action based in whole or in part
on strict liability in tort commenced or maintained against a defendant other
than the manufacturer, that party shall upon answering or otherwise
pleading file an affidavit certifying the correct identity of the manufacturer
of the product allegedly causing injury, death or damage ….
Subd. 2 …. Once the plaintiff has filed a complaint against a manufacturer
and the manufacturer has or is required to have answered or otherwise
pleaded, the court shall order the dismissal of a strict liability in tort claim
Plaintiff alleges that Sassy designed and manufactured the Sassy Sleep Positioner
and that Bacati designed and manufactured the Bacati Bumper Pad. (Id. ~ 4-5.)
Although Plaintiff alleges generally that Target (along with the
manufacturer-Defendants) was engaged in “testing, developing, manufacturing, labeling,
marketing, distributing, promoting, andlor selling” both the Sassy Sleep Positioner and
the Bacati Bumper Pad (Compi. ~ 8), in her memorandum supporting her motion to
remand, Plaintiff argues only that Target’s alleged liability arises from its marketing,
distribution, and sale of the Sassy Sleep Positioner. (Doc. No.7 at 11.)
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against the certifying defendant, provided the certifyiog defendant is not
within the categories set forth in subdivision 3 ….
Subd. 3 …. A court shall not enter a dismissal order relative to any
certifying defendant even though full compliance with subdivision 1 has
been made where the plaintiff can show one of the following:
(a) that the defendant has exercised some sigoificant control over the desigo
or manufacture of the product, or has provided instructions or warnings to
the manufacturer relative to the alleged defect in the product which caused
the injury, death or damage;
(b) that the defendant had actual knowledge of the defect in the product
which caused the injury, death or damage; or
(c) that the defendant created the defect in the product which caused the
injury, death or damage.
Mina. Stat. § 544.41, subds. 1-3. Here, there is no dispute that the manufacturers of both
the Sassy Sleep Positioner and the Bacati Crib Bumper are parties to this action.
Therefore, in order to maintain a strict liability claim against Target, Plaintiff must be
able to show that Target had actual knowledge ofa defect under § 544.41, subd. 3(b), or
caused a defect under § 544.41, subd. 3(c).
Under Minaesota law, a plaintiff alleging strict liability must prove:
(1) that the defendant’s product was in a defective condition unreasonably
dangerous for its intended use, (2) that the defect existed when the product
left the defendant’s control, and (3 ) that the defect was the proximate cause
of the injury sustained.
Bilotta V. Kelley Co., 346 N.W.2d 616,623 n.3 (Mina. 1984). A product can be defective
because of a desigo defect, a manufacturing flaw, or a failure to warn. See id. at 622.
Here, Plaintiff alleges that Target is liable because it sold a product (the Sassy Sleep
Positioner) that was defective because of a failure to warn of known risks. Plaintiff
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alleges that Target marketed the Sassy Sleep Positioner as being safe and effective in
preventing crib-related deaths while Target (and the other Defendants) knew or should
have known that there was no competent or scientific medical proof for the safety claim
and that the Sassy Sleep Positioner was actually dangerous and could contribute to
suffocation in a crib. (Id. ~ 13-14.) Plaintiff further alleges that Defendants, including
Target, knew of at least 11 deaths, dating back 13 years, that were associated with the use
of sleep positioners, and that Target (and the other Defendants) failed to warn consumers
of the risk.
The Court concludes that Plaintiff’s allegations against Target are sufficient (albeit
by a narrow margin) so as to deem Target a real defendant in this case. Plaintiff alleges
that Target was aware of risks associated with the use of the Sassy Sleep Positioner and
failed to warn consumers of that risk. At the early stage of this litigation, the Court
cannot conclude that these allegations are insufficient to state a cause of action against
Target for strict liability because of a failure to warn.2
Because the Court concludes that Target is not merely a nominal defendant,
Target’s citizenship is relevant to the issue of diversity jurisdiction. Because removal
was based on diversity jurisdiction, Target’s status as a citizen of Minnesota makes the
removal of this case improper. See 28 U.S.C. § 1441(b) (an action based on diversity
“shall be removable only if none of the parties in interest properly joined and served as
2 Because the Court has concluded that Plaintiff’s allegations against Target related
to its claim of strict liability are enough to deem Target a real party to the litigation, the
Court need not consider the viability of the remaining causes of action against Target. In
addition, Plaintiff’s argument that Defendant’s notice of removal was defective is moot.
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defendants is a citizen of the State in which the action is brought”). Accordingly, this
case is properly remanded to state court.
Plaintiff also seeks an award of costs and actual expenses, including attorney fees,
as a result of Defendant Bacati’s removal of this case to federal court. “An order
remanding the case may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). An award of
fees under § 1447(c) is left to the discretion of the district court. See Martin, 546 U.S. at
139. In determining whether to award fees, the Court considers the “reasonableness of
the removal” and “[a]bsent unusual circumstances, courts may award attorney’s fees
under § l447(c) only where the removing party lacked an objectively reasonable basis for
seeking removal.” ld. at 141. Although the Court has concluded that remand to state
court is appropriate, it cannot be said on the facts alleged in the Complaint that Defendant
Bacati lacked an objectively reasonable basis for removal. The question of whether
Plaintiff has alleged a viable cause of action against Target is a close one, and Defendant
Bacati’s stated grounds for removal were not unreasonable. Therefore, the Court denies
Plaintiffs request for fees.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiffs Motion to Remand (Doc. No. [16]) is GRANTED.
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2. Plaintiff’s request for an award of costs and actual expenses, including
attorney fees, is DENIED.
Dated: November 21,2011 slDonovan W. Frank
DONOVAN W. FRANK
United States District Judge
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