Cella v. Togum Constructeur Ensemleier en Industrie Alimentaire
173 F.3d 909
3rd Cir.
1999
Check Treatment

*1 Cella, CELLA; Edward Patricia ENSEM

TOGUM CONSTRUCTEUR ALIMEN EN

LEIER INDUSTRIE Corporation

TAIRE; Paul Bosch Division; Machinery Packaging Samtom;

Miltenberg USA Weiner Celia, Celia; Edward

Patricia Brokerage Company;

Amco Customs Kehle; E. Elizabeth Lan

Ronald

caster; Strycharz Edward J. Appellant Corp.,

*Robert Bosch

No. 98-1393. Appeals,

United States Court

Third Circuit. Dec. 1998.

Argued

Filed 12(a)).

*(Pursuantto F.R.A.P. *2 8, 1997,

ary August 1996. On she and (“the Celias”) her husband filed suit in the District for the East- United States Pennsylvania against ern District of To- Construction, gum Corpora- Robert Bosch Inc., tion, Santom, & and Miltenberg (“the Wiener, In USA. this action action”), the Celias asserted state law Forster, M. (Argued), Jr. Lisa Robert S. including negligence, liability, claims strict Sehnader, Harrison, Lewis, Mack, Segal & merchantability breach of warranties of PA, Attorneys for Robert Philadelphia, fitness, and of consortium. loss Sub- Corporation. ject jurisdiction appropriately matter was predicated upon diversity complete (Argued), Holland Phila- Thomas More parties. February On PA, delphia, Attorney for Patricia and Ed- (“the Celias filed a second action second ward Celia. action”) in the District United States Jasons, Kelley, Matthew Reber W. the Eastern Pennsyl- Court for District of PA, Spinelli, Philadelphia, At- McGuire & accident, arising out vania of the same Samtom, torneys Miltenberg for Ronald naming instead as defendants AMCO Cus- Kehle, Lancaster, E. Elizabeth and Ed- Kehle, E. Brokerage, toms Robert Eliza- Strycharz. ward J. Lancaster, Strycharz. beth and Edward J. Although complaint alleged that diver- STAPLETON, and BEFORE: sity jurisdiction existed the second ac- NYGAARD, Judges, Circuit well, apparent tion as it was from the face GOLDBERG,** Judge. complaint that the Celias and the defendant AMCO were citi- OF THE OPINION COURT zens. STAPLETON, Judge: Circuit 16, 1998, March On the Celias moved to stems from This the consolidation consolidate the second action with the first actions filed in two federal district court pursuant action to Federal Rule of Civil plaintiffs the same in which diver- —one Procedure and to have the District sity jurisdiction existed and one which supplemental jurisdic- Court exercise its subject jurisdiction federal matter was or, tion over the second action alternative- lacking the subsequent dismissal of —and ly, “remand” the consolidated actions to both actions for lack of state court. The District Court declined jurisdiction. matter, initial As an we must to exercise over the second determine whether a defendant the di- action since determined that to do so versity action has standing to jurisdiction- would with be inconsistent dismissal of the suit it. Because requirement al of Section 1332. exists, we hold that standing we review the 14, 1998, in an order dated the Dis- District Court’s order dismissing the suit trict Court consolidated the two actions against the defendant and we will reverse prejudice and dismissed them without for that order. dismissal, Upon the consolidated cases

I. proceeded in state court. Because Penn- injured Patricia sylvania Celia was a ball- a two-year has statute of limita- forming working damages machine while on Febru- tions actions to for recover for ** Trade, Goldberg, Judge sitting by designation. Honorable Richard W. the United States Court of International

9H three-part preme Court has enunciated 42 Pa.C.S. injury, see personal new, litigant when a iden- test to determine initiated not have could Celias power of a federal “standing” to invoke the March action on tical state court (1) injury an allege court. The must filed their on which the date fact, “fairly that is traceable” and “remand” or dis- consolidate motion to *3 (3) action, challenged that will be re- However, were able to miss. by a favorable decision. See Allen 42 dressed by operation of in court proceed state 751, 737, 104 Wright, 468 U.S. S.Ct. 5103, of erro- § entitled “Transfer Pa.C.S. (1984). 3315, The 82 L.Ed.2d 556 Su- pro- 5103 Section neously filed matters.” policy preme following Court has noted the part: pertinent in vides standing appeal: to regarding (1) preserve a claim In order to ... limitation (relating 55 to Chapter under a Ordinarily, only party aggrieved by a time), com- timely who litigant of or order of a district court judgment any in proceeding or an action mences statutory right ap- to may exercise for a district em- court United States A who receives peal therefrom. of this Commonwealth bracing any part generally has is not sought all that he protective required to commence is not judgment affording aggrieved by a district in a court or before action from it. relief and cannot aWhere

justice of this Commonwealth. Guaranty Roper, Nat. Bank v. 445 Deposit filed in United States matter 326, 333, 100 63 L.Ed.2d U.S. S.Ct. any part embracing a district court for (1980). 427 matter is and the of this Commonwealth court for by the United States dismissed case, appears glance at first In this any litigant in the lack of “aggrieved” by is not the order that Bosch the matter to transfer Court, as that order dis of the District of this magisterial district a court or corpora it. The against misses the action by complying with Commonwealth in a “all that Lit] tion has sense received para- in set forth provisions transfer longer it is no re sought” has because graph the case and is therefore quired to defend (2) prescribed by Except as otherwise liability. potentially subject to longer no rules, byor order of the United general analysis ig glance” this “first court, transfer be ef- such States corporation is not the fact that the nores transcript a certified by filing fected but rather is completely free from suit now judgment of the United States the final in rather this suit state required to defend pleadings in a and the related court injury in fact court. While than federal of this Com- magisterial or district court harm, the denotes a substantive typically monwealth. “procedur Supreme recognized has in change to a forum injury” al related 5103(b)(1) (2) (em- Pa.C.S. instance. See International at least one added). phasis League v. Administrators Primate Protection Corpo- the Robert Bosch appeal, thisOn Fund, Educational of Tulane (“Bosch”), a defendant named ration 114 L.Ed.2d 134 action, to seeks standing to chal plaintiff that had (holding for the suit dismissal of removal of their suit lenge defendant’s to sue state they lost the since choice). court, While forum of their

II. depriva involved Primate International a defen rather than plaintiffs, tion of a inquiry is whether threshold Our dant’s, being able expectation legitimate to the dismissal forum, it particular does litigate it. The Su- suit of the federal can that type deprivation remedy deprivation by reversing that this demonstrate an appellant to render upon can be sufficient the dismissal order which the “trans- Sweeney, See also Custer aggrieved. predicated, fer” was we hold that Bosch Cir.1996) (4th (according F.3d appeal. concept” practical party aggrieved

“the meaning and hypertechnical rather than III. party may noting “[a] Federal Rule of Civil Procedure adversely af- a district court decision provides pertinent part: position or legal rights fects its vis-a-vis (a) potential the case or other Consolidation. When actions involv- other ing question a common of law or fact litigants”). are before, *4 pending may the it order a case, legiti- In the instant Bosch had no joint hearing or trial all of or the expectation it mate before was sued that actions; in may matters issue in the litigate would be able to the Celias’ claims consolidated; all order the actions and it in a against it federal court. The Celias may pro- make such concerning orders against could have chosen to file suit ceedings therein as tend to avoid in court originally state could have unnecessary or delay. costs in named non-diverse defendants the same suit, thereby eliminating possibility the of 42(a), Interpreting predecessor the to Rule removal. the Celias chose to file Supreme the Court stated that “consolida- against suit Bosch and other diverse de- tion permitted as a matter of conve- court under fendants federal 28 U.S.C. administration, economy nience and § 1332. Once the statute of merge single does not the suits into a against limitations had run the asserted cause, or change rights parties, the February as of claims Celias or make those who are in one suit proceed left with no but to were choice —if parties in another.” Johnson v. Manhat- they proceed at all—in chose federal Co., 479, 496-97, tan R. time, Accordingly, court. as of that Bosch 721, 77 L.Ed. 1331 As this Court acquired expectation an that it would be previously recognized, “Johnson re- litigate able against Celias’ claims it mains the ‘authoritative’ statement on the court, federal forum of its choice. law of consolidation.” Manage- Newfound Lewis, (3d Corp. ment expectation This was 131 F.3d subsequently frus- Cir.1997); see also 9 A. by Wright trated the District Court’s Charles & dismissal Miller, order, Arthur R. order. Without this Federal Practice and Celias (2d Procedure, 1995). § would have had no basis for at 430 ed. invoking Thus, 5103(b), § Pa.C.S. the statute while consolidation order under which re- sult in a unit they single litigation, “transferred” the of such an actions to the state court, statute, order does not create a single Bosch. This case for by its terms, jurisdiction express purposes. serves to toll the statute of only limitations for those claims that have Fellows, In Bradgate Associates v. Read by been dismissed a federal court for lack Associates, (3d Cir.1993), 999 F.2d 745 Thus, jurisdiction. the order from the district court had consolidated two law- appeals which Bosch divested Bosch of a suits, originally one filed in federal court previously viable statute of de- limitations and one filed state court but removed to fense in a proceeding state forum. the federal Both cases had been thereby deprived him legitimate of a plaintiff filed same the same expectation being litigate able to Upon defendant. an finding absence of Celias’ claims in the federal court. the district deprivation Since this was caused court remanded both cases to the state District Court’s order and since this Court court. at See id. 748-49. This Court re- jurisdiction by analyzing each diversity the district ground on the versed separately though even cases had case the consolidated cases court’s treatment consolidated); In re Joint Eastern & been rights of unit diminished single as a Litigation, Southern Districts Asbestos id. at 751. While the defendant. (hold- (S.D.N.Y.1989) 124 F.R.D. 1447(c)1 a district court requires U.S.C. diversity jurisdiction over an ac- ing in state originally filed a case to remand destroyed by tion not consolidation of was removed to federal improperly court but brought by that action with a second action court, Procedure Rule of Civil Federal plaintiff who was a citizen of the same 12(h)(3)2 court to dismiss directs a district diversity in the ac- state as defendant in federal court for originally filed case tion). Thus, should the District Court By “remand- it lacks which proceed to have allowed the first action to originally federal ing” the suit the merits. that the dis- we held to state court Dis- Consequently, we will reverse the prolonged litigation improperly trict court the first ac- dismissing trict Court’s order have been dis- claims that should over tion for lack of id. missed. See to retain and will remand with instructions case, Similarly, this that action. jurisdiction over treated the consol- “remand” order *5 merged into having actions as been idated NYGAARD, Judge, concurring Circuit rights altered the improperly case and one part: part dissenting above, the consolida- of Bosch. As noted I I do not believe that dissent because joinder not result the tion order did to the Dis- the in the second action to the defendants view, my In trict dismissal order. action; each action retained its rather that it was has not demonstrated Bosch Johnson, 289 separate identity. See own order by the District Court’s “aggrieved” 721; 496-97, Stacey v. 53 S.Ct. at U.S. that entire federal suit dismissed Celias’ Inc., F.2d 442 Rogers, 756 Charles J. I the fact simply ignore it. cannot Cir.1985). (6th Thus, the District Court the District Court issued the that after jurisdictional ba- analyzed have the should claims Bosch dismissing the Celias’ order independently. See Cole each action sis of completely courtroom walked out of the Inc., Industries, 563 F.2d Schenley v. grief solely arises free from suit. Bosch’s Cir.1977). (2d 38 gives law Celia a Pennsylvania because cause of action this situation. in the second ac- complaint the Because plainly indicated by tion recog- indeed Supreme Court has The complete diversity, injury relating to procedural that nized pur- properly that action dismissed standing. create choice of forum Rule of Civil Procedure suant to Federal League Primate Protection International 12(h)(3). However, diversity of complete Fund, Tulane Educ. v. Administrators of continued to exist citizenship 72, 77-78, existed'—and 111 1704- S.Ct. the first action 05, (holding consolidation—in that even after 114 134 L.Ed.2d v. Just to choose involving plaintiffs Bosch. See Webb of a denial support Time, Inc., injury to F.Supp. was a sufficient forum Nonetheless, (E.D.Mich.1991) my it is belief standing). that the court (holding that, have to party for a presence or absence determine should 12(h)(3) 1447(c) of Civil Procedure pertinent part 2. Federal Rule provides in 1. Section "[wjhenever by sugges- appears it states that judgment before final at time "[i]f that that the court the or otherwise tion of lacks appears the district court matter, lacks be remand- jurisdiction, the case shall Fed.R.Civ.P. the action.” court shall dismiss 1447(c). ed.” 28 U.S.C. 12(h)(3). dismissal, injury procedural must directly by an order of the caused more America UNITED STATES of notes, majority As the District Court. Ordinarily, only party aggrieved by judgment or order of a district court UNIVERSAL REHABILITATION statutory right ap- exercise the (PA), INC., SERVICES A

peal therefrom. who receives Appellant. sought generally all that he has is not judgment affording Lukesh, Appellant. relief and cannot from it. Richard J. Deposit Roper, Guar. Nat. Bank 97-1412, 97-1414, Nos. 97-1468. 1166, 1171, U.S. L.Ed.2d 427 Appeals, United States Court of Here, received all the relief Third Circuit. reasonably sought could have the Dis- 4,May trict case it was entire- Court—the ly dismissed.1 The fact that Bosch was BECKER, Judge, Present: Chief faced with a suit in Pennsylvania then SLOVITER, MANSMANN, change reality. state court does not this GREENBERG, SCIRICA, NYGAARD, all, aggrieved, Bosch was if at not ALITO, ROTH, MCKEE, and order, indepen- District Court’s RENDELL, Judges. Circuit operation dent statute. arguments regarding Bosch’s that statute appropriately

are more directed to the legislature courts or the ORDER *6 savings enacted the statute. We flex the concept standing say too far when we BECKER, Judge. Chief that a defendant has been hereby It is ORDERED that District Court order that dismissed all Therefore, charges it. because I 1. The motion to vacate the Order do not think denied; granting rehearing en banc is decision, the District Court’s I 2. The motion for leave to file a re- respectfully dissent from Part II of the sponse to Government’s Petition for Re- majority opinion.2 denied; hearing is

3. The hereby case number 97-1468 is removed from Order dated granting Rehearing En Banc. that, Second, argues 1. Bosch once the "expectation” that it would be ran, acquired statute of limitations an ''ex- right, able to expec- defend was not pectation” that it would be able to defend tempered by tation it had was the fact that against the claims in the District Court. argues that the District's Court's frustration of It that, provided law if the case was dismissed because of some defect expectation supports standing. this problems I see two Bosch would First, expectation. with this it again to suit in state court. "Ex- complain hard for me to see how Bosch can pectations” possi- must take into account all "expectation” that its that it would be able to bilities. defend in federal court was frustrated when entirely. the case was dismissed Bosch had My dissent is limited to Part II. If Bosch no to defend the case in federal judgment, a favorable certainly and could complained not have had agree clearly I that the District Court erred in voluntarily withdrawn the case and granting it. refiled in state court.