Wade Clark Mulcahy LLP

<p style="text-align: justify;">What started as a heated argument between an Old Navy employee and a shopper disputing the price of an item in Philadelphia took quite the turn when the employee picked up a metal shelf and threw it at the customer. To no one’s surprise, this led to a <a href="https://www.wcmlaw.com/wp-content/uploads/2021/10/lawsuit.pdf">lawsuit</a> filed in the Philadelphia Court of Common Pleas asserting claims against the employee, Old Navy, and its corporate affiliate, The Gap Inc.</p>
<p style="text-align: justify;">To avoid a plaintiff-friendly jurisdiction such as Philadelphia, Delaware resident Old Navy quickly sought to remove the suit to the Eastern District of Pennsylvania under 28 U.S.C. §1441. Specifically, Old Navy argued in their petition to the Eastern District of Pennsylvania that the employee was a nominal defendant that had no assets and that Old Navy was the target defendant. Generally, a court must disregard a nominal party who has no real interest in the claim nor is necessary to the disposition of the suit when determining jurisdiction for removal. Specifically, Old Navy further argued that the employee was only added to the suit to preemptively defeat removal as the shopper’s true target was the organization’s deep pockets.</p>
<p style="text-align: justify;">However, Hon. Joshua D. Wolson, U.S.D.J. was far from convinced. In his September 3, 2021 Order remanding the suit back to the Philadelphia Court of Common Pleas, Wolson found that the customer certainly had a viable claim against the employee, explaining that the mere possibility a cause of action exists against a resident defendant renders the party necessary rather than nominal.</p>
<p style="text-align: justify;">While Wolson acknowledges that the customer’s primary economic focus in filing the claim may, in fact, be Old Navy’s pockets, this did not obviate the reality that the claim against the employee as potentially meritorious.</p>
<p style="text-align: justify;">This shows that defendants seeking removal must remain aware that defendants without assets are not merely nominal.</p>
<p style="text-align: justify;">Thanks to Kendal Hutchings for her contribution to this post.  If you have any questions, please email <a href="mailto:mcare@wcmlaw.com">Matthew Care</a>.</p>