NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

SHANE BARTH, et al., : CIVIL ACTION NO. 11-1597 (MLC)

 :

Plaintiffs, : O P I N I O N

 :

v. :

 :

ARAMARK CORRECTIONAL SERVICES, :

LLC., et al., :

 :

Defendants. :

 :

THE PLAINTIFFS (1) are New Jersey citizens, and (2) brought

this action in state court against the defendants — Aramark

Correctional Services, LLC (“ALLC”), Peter Aleman, and Velma

Jordan — to recover damages for personal injuries (“Injuries”)

suffered by the plaintiff Shane Barth (“Barth”) on or about March

4, 2010, while he was working as a corrections officer. (Dkt.

entry no. 1, Rmv. Not., Ex. A, Compl.) The defendants removed

the action under 28 U.S.C. § (“Section”) 1332. (Rmv. Not.)

ALLC’S CITIZENSHIP

ALLC alleges that it “is a Delaware limited liability

corporation and is a citizen of . . . Pennsylvania with its

principle [sic] place of business located in . . . Pennsylvania”. 

(Id. at 3.) ALLC thus fails to allege its own citizenship because

it is a limited liability company, which is (1) an unincorporated

association, and (2) deemed to be a citizen of each state in which

its members are citizens, not the states in which it was formed or

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has its principal places of business. See Zambelli Fireworks Mfg.

Co. v. Wood, 592 F.3d 412, 418-20 (3d Cir. 2010). To determine a

limited liability company’s citizenship, each member’s name must

be specifically alleged and the citizenship of each membership

layer must be traced and analyzed. Id. at 420; see S. Freedman &

Co. v. Raab, 180 Fed.Appx. 316, 320 (3d Cir. 2006) (stating

citizenship must be alleged “affirmatively and distinctly”); Vail

v. Doe, 39 F.Supp.2d 477, 477 (D.N.J. 1999) (stating citizenship

allegation that is based upon information and belief “does not

convince the Court that there is diversity among the parties”). 

Therefore, ALLC has failed to allege jurisdiction under Section

1332, and the action could be remanded for this reason alone.

ALEMAN AND JORDAN

The pleadings contain allegations that (1) Barth was in a

detention center’s “kitchen area” (“Kitchen”) managed by ALLC,

Aleman, and Jordan, (2) ALLC, Aleman, and Jordan “individually

and jointly” created a dangerous condition (“Condition”) in the

Kitchen that caused the Injuries, (3) Aleman and Jordan were

employed by ALLC when the Injuries were sustained, and (4) Jordan

“is employed by [ALLC] as its food service director” overseeing

the Kitchen. (Compl. at 1-2; Rmv. Not. at 2-3.)

Aleman and Jordan are New Jersey citizens. (Rmv. Not. at 3.) 

Thus, complete diversity is lacking on the face of the pleadings. 

See 28 U.S.C. § 1332(a)(1); Lincoln Prop. Co. v. Roche, 546 U.S.

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81, 89 (2005). But the defendants allege that Aleman and Jordan

were fraudulently joined by the plaintiffs in an attempt to

defeat the requirement. (Rmv. Not. at 3.) The defendants allege

that even though Jordan managed the Kitchen for ALLC when the

Injuries occurred, Jordan “has no independent liability in this

matter as she was an agent, servant and employee of [ALLC] at the

time of this incident and was acting within the course and scope

of her employment”. (Id.) The defendants also allege that even

though Aleman was employed by ALLC when the Injuries occurred and

has been personally served with process (id. at 2), he (1) “was

transferred . . . in January of 2010”, and (2) “has no independent

liability and is being sued in this capacity as an agent, servant

and/or employee of [ALLC]”. (Id. at 3.)

Assuming that ALLC’s citizenship had been properly shown and

it was not deemed to be a citizen of, among other states, New

Jersey, the plaintiffs would have fraudulently joined Aleman and

Jordan if they named them solely to defeat removal under Section

1332. See Brown v. Jevic, 575 F.3d 322, 326-27 (3d Cir. 2009); In

re Briscoe, 448 F.3d 201, 215-19 (3d Cir. 2006); Batoff v. State

Farm Ins. Co., 977 F.2d 848, 851-54 (3d Cir. 1992); Boyer v. SnapOn Tools Corp., 913 F.2d 108, 110-13 (3d Cir. 1990); Abels v.

State Farm Fire & Cas. Co., 770 F.2d 26, 29-34 (3d Cir. 1985). 

Such an allegation has merit only if the plaintiffs have no (1)

reasonable basis in fact or colorable ground to support the claims

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against Aleman and Jordan, or (2) real intention in good faith to

prosecute the action against them. Boyer, 913 F.2d at 111. The

Court — as to the issue of fraudulent joinder — must (1) resolve

in the plaintiffs’ favor all contested factual issues and any

uncertainty as to the current state of controlling substantive

law, and (2) find that Aleman or Jordan were properly joined if

there is “even a possibility” that a state court would find that

the Complaint states a claim against either one of them. Id. 

For Aleman and Jordan to be found to be fraudulently joined, the

claims asserted against them must be “wholly insubstantial and

frivolous”. Batoff, 977 F.2d at 852.

The standard for addressing dismissal due to fraudulent

joinder is not the same as the standard for addressing either

dismissal for failure to state a claim or summary judgment. See

Briscoe, 448 F.3d at 217-18 (stating district court cannot delve

into claim’s merits in a fraudulent joinder inquiry); Batoff, 977

F.2d at 852 (stating district court erred in fraudulent joinder

analysis in finding complaint failed to state a valid claim);

Boyer, 913 F.2d at 111-12 (stating district court not permitted

to reach claim’s merits in deciding fraudulent joinder issue). 

An inquiry under a motion to dismiss or for summary judgment “is

more searching than that permissible when a party makes a claim of

fraudulent joinder”. Batoff, 977 F.2d at 852. As a fraudulent

joinder analysis is not as “penetrating”, the rejection of a

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fraudulent joinder argument does not guarantee that the claim

will withstand a motion to dismiss for failure to state a claim

on the merits or a motion for summary judgment. Id. at 852-53.

The plaintiffs have not fraudulently joined Jordan, as the

claims against her are not wholly insubstantial and frivolous. 

The Complaint alleges that Barth suffered Injuries due to a

Condition created by Jordan in the Kitchen overseen by Jordan,

and the defendants admit that Jordan was employed to oversee the

Kitchen at the time. Also, the plaintiffs’ allegation that Jordan

could be held individually liable is not wholly insubstantial and

frivolous. See Printing Mart - Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 762 (1989) (stating that employee who performs an

allegedly tortious act may still be individually liable, even if

she was acting on employer’s behalf and realized no personal

benefit). The claims against Aleman are also not wholly

insubstantial and frivolous, as (1) he was employed by ALLC when

the Injuries were sustained, (2) he could be held individually

liable as an employee, and (3) discovery may reveal that the

small gap of time alleged by the defendants between Aleman’s work

at the Kitchen and the Injuries is not accurate.

It is also reasonable for the plaintiffs to name all those

who may be responsible for the Injuries, as the failure to do so

could give rise to a potential statute of limitations issue. Cf.

Brown, 575 F.3d at 327 (noting that limitations defense may be

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considered in connection with fraudulent joinder inquiry). The

plaintiffs have also demonstrated an intention to proceed against

these individual defendants, as Aleman has been personally served

with process. See Abels, 770 F.2d at 32 (stating action naming

“Doe defendants” survived fraudulent joinder analysis, as

plaintiff was endeavoring to proceed against them and conduct

discovery).

It may be that the claims asserted against Aleman and Jordan

would not withstand a motion to dismiss on the merits. That

concern, however, is not relevant here.

THE ACTION WILL BE REMANDED

The Court will remand the action, as (1) the defendants have

failed to properly allege ALLC’s citizenship, and (2) Aleman and

Jordan have not been fraudulently joined. See 28 U.S.C. §§

1446(a), 1447(c). The Court will issue an appropriate order and

judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: May 2, 2011

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