Goldberg Segalla Successfully Argues Fraudulent Joinder and Earns Dismissal of Regional Director of Operations in Premises Liability Case
Zealous advocation and creative problem-solving by attorneys John M. McConnell and Thomas J. O’Grady scored a major and uncommon decision for a Fortune 500 client and its employee.
The plaintiff filed suit against our clients — a major retailer and an employee of the retailer, in the Superior Court of New Jersey. The personal injury claim arose out of an alleged premises liability at a store in the Northeastern United States.
However, the employee the plaintiff sued was the regional director of operations for the area near the incident’s location. She did not possess an office or work out of the store itself. Further, she was not at the store on the date of the accident. She was a resident of New Jersey, and thus, our client argued she was sued solely to destroy diversity jurisdiction so that our client would be unable to remove the case to the Federal Court.
Despite the fact that both the plaintiff and the employee were New Jersey residents, and there did not appear to be diversity jurisdiction on its face, our client removed the case to the Federal Court and argued the plaintiff erroneously and/or fraudulently sued the non-diverse employee, who worked at a different store, was not present on the date of loss at the club where the accident occurred, and has no nexus to the accident. Goldberg Segalla also argued the plaintiff had no real intention in good faith to prosecute the action against the employee, and the employee submitted an affidavit swearing she was not present at the club on the date of loss and works at a different store location altogether.
Although the employee the plaintiff sued was not at the store on the date of loss, there were numerous other employees who were present at the store, including a manager who reported to the scene. Despite these uncontroverted facts, the plaintiff did not sue any employees present on the date of loss, including the attending manager.
Thus, Goldberg Segalla creatively argued the plaintiff had located the employee they had sued by conducting Google searches, and one such search brought them to an outdated LinkedIn profile, which the plaintiff used to identify a store employee to ultimately sue. Goldberg Segalla essentially recreated the search it calculated the plaintiff had performed to locate an employee to sue and argued this was a clear case of fraudulent joinder. The judge considered the briefing of both the retailer and plaintiff and ultimately sided with the retailer, ordering that the employee should be dismissed.
The result was that the case remained in the Federal Court, which was the preferred venue for the retailer. The case law in New Jersey related to fraudulent joinder carries a heavy burden for the party making this argument. Goldberg Segalla’s unique approach at challenging fraudulent joinder and novel argument shows there are some creative arguments a defense counsel can make to zealously advocate for their clients even if in the face of a heavy burden.
MORE ABOUT JOHN M. MCCONNELL
John is vice chair of Goldberg Segalla’s Business and Commercial group and is a trusted counselor to Fortune 500 companies and other publicly traded corporations. He is renowned for his record of success in high-stakes litigation and acumen in motion practice and trial advocacy. Based in Goldberg Segalla’s Princeton, New Jersey, office, and he is licensed in New Jersey and Pennsylvania.
MORE ABOUT THOMAS J. O’GRADY
Tom is a partner focusing his practice on counseling and defending clients in complex commercial litigation and product liability matters. He is based in Goldberg Segalla’s Princeton, New Jersey, office, and he is licensed in New Jersey and Pennsylvania.