United States District Court, E.D. Virginia, Richmond Division
DARRYL A. HALL, JR., Plaintiff,
LEISURE TIME PRODUCTS, INC, et al, Defendant.
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court a Motion to Remand (ECF No. 4) filed by Plaintiff Darryl A. Hall, Jr. ("Plaintiff"). Defendants Backyard Leisure, LLC ("Backyard LLC"), Leisure Time Products, Inc. ("Leisure Time"), Backyard Leisure Holdings, Inc. ("BLH"), and Lowe's Home Centers, Inc. ("Lowes") (collectively, "Defendants") oppose this Motion. For the reasons below, the Plaintiff's Motion to Remand is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2013, Plaintiff filed a complaint in the Circuit Court for the City of Richmond ("Richmond Circuit Court") against Defendants seeking damages for personal injuries related to an alleged defect in the hardware used to support a child's swing set. On March 28, 2013, Defendants filed a joint Answer. In response to Plaintiff's allegation in paragraph five of the Complaint that Backyard LLC was "engaged in the business of designing, manufacturing, testing, inspecting, marketing, distributing and selling swing sets and related products and component parts, " Defendants responded "[a]t this time, Defendants are without sufficient information to admit or deny the allegations contained in ¶ 5 of the Complaint, and therefore deny them." ( See Compl. ¶ 5; Ans. ¶ 5).
On April 3, 2013, before the Honorable Robert E. Payne, Defendants timely filed a Notice of Removal ("First Notice") on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). On April 4, 2013, Judge Payne issued an Order on April 4, 2013, sua sponte , requiring Backyard LLC to properly allege its citizenship for purposes of establishing diversity as a basis for removal. See Hall v. Backyard Leisure, LLC et. al , 3:13-CV-00211-REP, ECF No. 4. Defendants did not allege fraudulent joinder as a basis for removal in their initial Notice of Removal. See id. ECF No. 1. On April 15, 2013, Backyard LLC filed an unopposed Motion to Remand in which it admitted that one or more of its member entities were comprised of members who were citizens of Virginia and that, thus, complete diversity did not exist at the time of filing. See id. , ECF Nos. 6-7. On April 16, 2013, Judge Payne remanded the case back to state court on Backyard LLC's unopposed motion to remand. See id., ECF No. 9. The parties then engaged in discovery and produced substantive discovery responses, retained experts, and conducted depositions. Backyard LLC never filed an Amended Answer to that effect or updated its discovery responses. Defendants aver that Plaintiff engaged in the following tactics to delay discovery:
Plaintiff refused to set the case for trial in state court prior to the expiration of the one-year time period for removal. (Green Aff. at ¶¶ 11-14.)
Plaintiff was first informed that the non-diverse defendants were not proper parties on July 29, 2013, and took no action despite Defendants' request to conduct discovery on that issue. (Green Aff. at ¶¶ 11, 14.)
Plaintiff was again informed that the non-diverse defendants were not proper parties on August 1, 2013 and that Defendants would be available for a deposition in the fall of 2013, but took no action. (Ex. D; Green Aff. at ¶¶ 14-15.)
Plaintiff was again informed that the non-diverse defendants were not proper parties on November 21, 2013, and that Defendants would be available for deposition on January 10, 2014. (Ex. E; Green Aff. at ¶ 17.)
Plaintiff refused to provide a Rule 4:5(b)(6) corporate representative deposition notice for the deposition on January 10, 2014, so it was cancelled. (Ex. F; Green Aff. at ¶¶ 18-20; Hotz Aff. at ¶ 10.)
When informed, once again that Defendants needed a Rule 4:5(b)(6) corporate representative deposition notice, Plaintiff's counsel stated to Defense counsel, "If I nonsuit those parties you will remove this matter to federal court." (Green Aff. at ¶ 19.)
When asked on January 15, 2014 for deposition dates for Defendants' deposition, Plaintiff's counsel represented that his first available date was March 28. Defendants made arrangements for a deposition in Richmond on that date, but on March 25, 2014, Plaintiff's counsel denied ever agreeing to the March 28 date because it conflicted with the Annual Convention of the Virginia Trial Lawyers Association. However, Plaintiff did not attend the convention on March 28. (Green Aff. at ¶¶ 21, 23; Hotz Aff. ¶¶ 11-12.)
Plaintiff never arranged to take Defendants' deposition. Defendants, at their own expense, deposed Donald Hotz on April 2, 2014. (Ex. H.)
(Defs.' Mem. Supp. Opp'n Mot. Remand 14-15). On April 2, 2014, Mr. Hotz-Defendants' corporate representative-testified that Backyard LLC is an ownership structure of a group of investors that own preferred shares and common shares in Backyard LLC, but it had nothing to do with the design, manufacture, sourcing, or sale of the product at issue. (Hotz Dep. 8-12). On May 20, 2014, reportedly satisfied that Backyard LLC and BLH were not responsible for the product at issue, Plaintiff circulated for signature an Order for ...