                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-1999

Cella v. Togum Constr
Precedential or Non-Precedential:

Docket 98-1393




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Recommended Citation
"Cella v. Togum Constr" (1999). 1999 Decisions. Paper 87.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/87


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Filed April 1, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1393

PATRICIA CELLA; EDWARD CELLA

v.

TOGUM CONSTRUCTEUR ENSEMLEIER EN INDUSTRIE
ALIMENTAIRE; PAUL BOSCH CORPORATION AND BOSCH
PACKAGING MACHINERY DIVISION; MILTENBERG &
SAMTOM; WEINER USA
(E.D. PA Civil No. 97-cv-05118)

PATRICIA CELLA; EDWARD CELLA

v.

AMCO CUSTOMS BROKERAGE COMPANY;
RONALD E. KEHLE; ELIZABETH LANCASTER;
EDWARD J. STRYCHARZ
(E.D. PA Civil No. 98-cv-00870)

*Robert Bosch Corp.,

       Appellant

*(Pursuant to F.R.A.P. 12(a))

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action Nos. 97-cv-05118 and 98-cv-00870)

District Judge: Honorable Ronald L. Buckwalter

Argued December 8, 1998

BEFORE: STAPLETON, and NYGAARD, Circuit Judges,
and GOLDBERG,** Judge
_________________________________________________________________

**Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
(Opinion Filed April 1, 1999)

       Robert S. Forster, Jr. (Argued)
       Lisa M. Mack
       Schnader, Harrison, Segal & Lewis
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103

        Attorneys for Robert Bosch
        Corporation

       Thomas More Holland (Argued)
       437 Chestnut Street, Suite 406
       Philadelphia, PA 19106

        Attorney for Patricia and Edward
        Cella

       W. Matthew Reber
       Kelley, Jasons, McGuire & Spinelli
       1617 John F. Kennedy Boulevard
       Suite 1400
       Philadelphia, PA 19103

        Attorneys for Miltenberg &
        Samtom, Ronald E. Kehle,
        Elizabeth Lancaster, and
        Edward J. Strycharz

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This appeal stems from the consolidation of two actions
filed in federal district court by the same plaintiffs--one in
which diversity jurisdiction existed and one in which federal
subject matter jurisdiction was lacking--and the
subsequent dismissal of both actions for lack of subject
matter jurisdiction. As an initial matter, we must determine
whether a defendant in the diversity action has standing to
appeal the dismissal of the suit against it. Because we hold
that standing exists, we review the District Court's order
dismissing the suit against the defendant and we will
reverse that order.

                                2
I.

Patricia Cella was injured by a ball-forming machine
while working on February 21, 1996. On August 8, 1997,
she and her husband ("the Cellas") filed suit in the United
States District Court for the Eastern District of
Pennsylvania against Togum Construction, Robert Bosch
Corporation, Miltenberg & Santom, Inc., and Wiener, USA.
In this action ("the first action"), the Cellas asserted state
law claims including negligence, strict liability, breach of
warranties of merchantability and fitness, and loss of
consortium. Subject matter jurisdiction was appropriately
predicated upon the complete diversity of the parties. On
February 20, 1998, the Cellas filed a second action ("the
second action") in the United States District Court for the
Eastern District of Pennsylvania arising out of the same
accident, but instead naming as defendants AMCO
Customs Brokerage, Robert E. Kehle, Elizabeth Lancaster,
and Edward J. Strycharz. Although the complaint alleged
that diversity jurisdiction existed in the second action as
well, it was apparent from the face of the complaint that the
Cellas and the defendant AMCO were Pennsylvania citizens.

On March 16, 1998, the Cellas moved to consolidate the
second action with the first action pursuant to Federal Rule
of Civil Procedure 42 and to have the District Court
exercise its supplemental jurisdiction over the second
action or, alternatively, "remand" the consolidated actions
to state court. The District Court declined to exercise
jurisdiction over the second action since it determined that
to do so would be inconsistent with the jurisdictional
requirement of Section 1332. However, in an order dated
April 14, 1998, the District Court consolidated the two
actions and dismissed them without prejudice for lack of
subject matter jurisdiction.

Upon dismissal, the consolidated cases proceeded in
state court. Because Pennsylvania has a two-year statute of
limitations for actions to recover damages for personal
injury, see 42 Pa.C.S. S5524, the Cellas could not have
initiated a new, identical state court action against Bosch
on March 6, 1998, the date on which the Cellas filed their
motion to consolidate and "remand" or dismiss. However,
the Cellas were able to proceed against Bosch in state court

                               3
by operation of 42 Pa.C.S. S5103, entitled "Transfer of
erroneously filed matters." Section 5103 provides in
pertinent part:

       (1) . . . In order to preserve a claim under Chapter 55
       (relating to limitation of time), a litigant who timely
       commences an action or proceeding in any United
       States court for a district embracing any part of this
       Commonwealth is not required to commence a
       protective action in a court or before a district justice
       of this Commonwealth. Where a matter is filed in any
       United States court for a district embracing any part of
       this Commonwealth and the matter is dismissed by the
       United States court for lack of jurisdiction, any litigant
       in the matter filed may transfer the matter to a court
       or magisterial district of this Commonwealth by
       complying with the transfer provisions set forth in
       paragraph (2).

        (2) Except as otherwise prescribed by general rules,
       or by order of the United States court, such transfer
       may be effected by filing a certified transcript of the
       final judgment of the United States court and the
       related pleadings in a court or magisterial district of
       this Commonwealth.

See 42 Pa.C.S. S5103 (b)(1) and (2) (emphasis added).

On this appeal, the Robert Bosch Corporation ("Bosch"),
a defendant named in the first action, seeks to challenge
the District Court's dismissal of the suit against it for lack
of subject matter jurisdiction.

II.

Our threshold inquiry is whether Bosch has standing to
appeal the dismissal of the federal suit against it. The
Supreme Court has enunciated a three-part test to
determine when a litigant has "standing" to invoke the
power of a federal court. The party must allege (1) an injury
in fact, (2) that is "fairly traceable" to the challenged action,
and (3) that will be redressed by a favorable decision. See
Allen v. Wright, 468 U.S. 737, 751 (1984). The Supreme
Court has noted the following policy regarding standing to
appeal:

                               4
       Ordinarily, only a party aggrieved by a judgment or
       order of a district court may exercise the statutory
       right to appeal therefrom. A party who receives all that
       he has sought generally is not aggrieved by the
       judgment affording the relief and cannot appeal from it.

Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333
(1980).

In this case, it appears at first glance that Bosch is not
"aggrieved" by the order of the District Court, as that order
dismisses the action against it. The corporation has in a
sense received "all that [it] has sought" because it is no
longer required to defend the case and is therefore no
longer potentially subject to liability. However, this "first
glance" analysis ignores the fact that the corporation is not
now completely free from suit but rather is required to
defend this suit in state rather than federal court. While
injury in fact typically denotes a substantive harm, the
Supreme Court has recognized "procedural injury" related
to a change in forum in at least one instance. See
International Primate Protection League v. Administrators of
Tulane Educational Fund, 500 U.S. 72 (1991) (holding that
plaintiff had standing to challenge defendant's removal of
their suit since they lost the right to sue in state court, the
forum of their choice). While International Primate involved
deprivation of a plaintiff's, rather than a defendant's,
legitimate expectation of being able to litigate in a
particular forum, it does demonstrate that this type of
deprivation can be sufficient to render an appellant
aggrieved. See also Custer v. Sweeney, 89 F.3d 1156, 1164
(4th Cir. 1996) (according "the party aggrieved concept" a
practical rather than hypertechnical meaning and noting
that "[a] party may be aggrieved by a district court decision
that adversely affects its legal rights or position vis-a-vis
other parties in the case or other potential litigants").

In the instant case, Bosch had no legitimate expectation
before it was sued that it would be able to litigate the
Cellas' claims against it in a federal court. The Cellas could
have chosen to file suit against Bosch in state court
originally and could have named non-diverse defendants in
the same suit, thereby eliminating the possibility of
removal. However, the Cellas chose to file suit against

                               5
Bosch and other diverse defendants in federal court under
28 U.S.C. S1332. Once the Pennsylvania statute of
limitations had run against the asserted claims as of
February 21, 1998, the Cellas were left with no choice but
to proceed--if they chose to proceed at all--in federal court.
Accordingly, as of that time, Bosch acquired an expectation
that it would be able to litigate the Cellas' claims against it
in federal court, the forum of its choice.

This expectation was subsequently frustrated by the
District Court's dismissal order. Without this order, the
Cellas would have had no basis for invoking 42 Pa.C.S.
S 5103(b), the statute under which they "transferred" the
actions to the state court, against Bosch. This statute, by
its express terms, serves to toll the statute of limitations
only for those claims that have been dismissed by a federal
court for lack of jurisdiction. Thus, the order from which
Bosch appeals divested Bosch of a previously viable statute
of limitations defense in a Pennsylvania state proceeding
and thereby deprived him of a legitimate expectation of
being able to litigate the Cellas' claims in the federal court.

Since this deprivation was caused by the District Court's
order and since this Court can remedy that deprivation by
reversing the dismissal order upon which the "transfer" was
predicated, we hold that Bosch has standing to appeal.

III.

Federal Rule of Civil Procedure 42 provides in pertinent
part:

       (a) Consolidation. When actions involving a common
       question of law or fact are pending before the court, it
       may order a joint hearing or trial of any or all the
       matters in issue in the actions; it may order all the
       actions consolidated; and it may make such orders
       concerning proceedings therein as may tend to avoid
       unnecessary costs or delay.

Interpreting the predecessor to Rule 42(a), the Supreme
Court stated that "consolidation is permitted as a matter of
convenience and economy in administration, but does not
merge the suits into a single cause, or change the rights of

                               6
the parties, or make those who are parties in one suit
parties in another." Johnson v. Manhattan Ry. Co., 289 U.S.
479, 496-97 (1933). As this Court has previously
recognized, "Johnson remains the `authoritative' statement
on the law of consolidation." Newfound Management Corp.
v. Lewis, 131 F.3d 108, 116 (3d Cir. 1997); see also 9
Wright & Miller, Federal Practice and Procedure,S2382, at
430 (2d ed. 1995). Thus, while a consolidation order may
result in a single unit of litigation, such an order does not
create a single case for jurisdiction purposes.

In Bradgate Associates v. Fellows, Read & Associates,
999 F.2d 745 (3d Cir. 1993), the district court had
consolidated two lawsuits, one originally filed in federal
court and one filed in state court but removed to the federal
forum. Both cases had been filed by the same plaintiff
against the same defendant. Upon finding an absence of
subject matter jurisdiction, the district court remanded
both cases to the state court. See id. at 748-49. This Court
reversed on the ground that the district court's treatment of
the consolidated cases as a single unit diminished the
rights of the defendant. See id. at 751. While 28 U.S.C.
S 1447(c)1 requires a district court to remand a case
originally filed in state court but improperly removed to
federal court, Federal Rule of Civil Procedure 12 (h)(3)2
directs a district court to dismiss a case originally filed in
federal court for which it lacks jurisdiction. By "remanding"
the suit originally filed in federal court to state court, we
held that the district court improperly prolonged litigation
over claims that should have been dismissed. See id.

Similarly, in this case, the District Court's "remand"
order treated the consolidated actions as having been
merged into one case and improperly altered the rights of
Bosch. As noted above, the consolidation order did not
_________________________________________________________________

1. Section 1447(c) provides in pertinent part that "[i]f at any time
before
final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded." 28 U.S.C. S1447(c).

2. Federal Rule of Civil Procedure 12(h)(3) states that "[w]henever it
appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action."
Fed.R.Civ.P. 12(h)(3).

                               7
result in the joinder of the defendants in the second action
to the first action; rather each action retained its own
separate identity. See Johnson, 289 U.S. at 496-97; Stacey
v. Charles J. Rodgers, Inc., 756 F.2d 440, 442 (6th Cir.
1985). Thus, the District Court should have analyzed the
jurisdictional basis of each action independently. See Cole
v. Schenly Industries, Inc., 563 F.2d 35, 38 (2d Cir. 1977).

Because the complaint in the second action filed by the
Cellas plainly indicated a lack of complete diversity, the
District Court properly dismissed that action pursuant to
Federal Rule of Civil Procedure 12(h)(3). However, complete
diversity of citizenship existed--and continued to exist even
after consolidation--in the first action involving Bosch. See
Webb v. Just in Time, Inc., 769 F.Supp. 993, 996 (E.D.
Mich. 1991) (holding that the court should determine
presence or absence of diversity jurisdiction by analyzing
each case separately even though cases had been
consolidated); In re Joint Eastern & Southern Districts
Asbestos Litigation, 124 F.R.D. 538, 541 (S.D.N.Y. 1989)
(holding that diversity jurisdiction over an action was not
destroyed by consolidation of that action with a second
action brought by a plaintff who was a citizen of the same
state as a defendant in the diversity action). Thus, the
District Court should have allowed the first action to
proceed to the merits.

Consequently, we will reverse the District Court's order
dismissing the first action for lack of subject matter
jurisdiction and will remand with instructions to retain
jurisdiction over that action.

                               8
NYGAARD, Circuit Judge, concurring in part and dissenting
in part:

I dissent because I do not believe that Bosch has
standing to challenge the District Court's dismissal order.
In my view, Bosch has not demonstrated that it was
"aggrieved" by the District Court's order that dismissed
Cellas' entire federal suit against it. I simply cannot ignore
the fact that after the District Court issued the order
dismissing the Cellas' claims Bosch walked out of the
courtroom completely free from suit. Bosch's grief arises
solely because Pennsylvania law gives Cella a cause of
action in this situation.

The Supreme Court has indeed recognized that
procedural injury relating to choice of forum may create
standing. See International Primate Protection League v.
Administrators of Tulane Educ. Fund, 500 U.S. 72, 77-78,
111 S. Ct. 1700, 1704-05 (1991) (holding that denial of a
plaintiff's right to choose a forum was a sufficient injury to
support standing). Nonetheless, it is my belief that, for a
party to have standing to appeal the dismissal, the
procedural injury must be caused more directly by an order
of the District Court. As the majority notes,

       Ordinarily, only a party aggrieved by a judgment or
       order of a district court may exercise the statutory
       right to appeal therefrom. A party who receives all that
       he has sought generally is not aggrieved by the
       judgment affording the relief and cannot appeal from it.

Deposit Guar. Nat. Bank v. Roper, 445 U.S. 326, 333, 100
S. Ct. 1166, 1171 (1980).

Here, Bosch received all the relief it could reasonably
have sought in the District Court -- the case against it was
entirely dismissed.1 The fact that Bosch was then faced
_________________________________________________________________

1. Bosch argues that, once the Pennsylvania statute of limitations ran, it
acquired an "expectation" that it would be able to defend against the
claims in the District Court. It argues that the District's Court's
frustration of this expectation supports standing. I see two problems
with this expectation. First, it is hard for me to see how Bosch can
complain that its "expectation" that it would be able to defend in federal
court was frustrated when the case was dismissed entirely. Bosch had

                               9
Bosch was aggrieved, if at all, not by the District Court's
order, but by the independent operation of the
Pennsylvania statute. Bosch's arguments regarding that
statute are more appropriately directed to the Pennsylvania
courts or the legislature that enacted the savings statute.
We flex the concept of standing too far when we say that a
defendant has been aggrieved by a District Court order that
dismissed all charges against it. Therefore, because I do not
think that Bosch has standing to challenge the District
Court's decision, I respectfully dissent from Part II of the
majority opinion.2

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

no right to defend the case in federal court, and could certainly not have
complained had the Cellas voluntarily withdrawn the case and refiled in
state court.

Second, the "expectation" that it would be able to defend was not a
right, and any expectation it had was tempered by the fact that
Pennsylvania law provided that, if the case was dismissed because of
some defect in the subject matter jurisdiction, Bosch would again be
subject to suit in state court. "Expectations" must take into account all
possibilities.

2. My dissent is limited to Part II. If Bosch has standing to appeal a
favorable judgment, I agree that the District Court clearly erred in
granting it.
with a suit in Pennsylvania state court does not change this
reality.

                               10
