Grieving Mom Can Go After Baby Sling Maker

     (CN) – A woman whose baby suffocated to death in an Infantino baby carrier in 2009 can fight the San Diego-based manufacturer, Wal-Mart, and Kmart in state court, a federal judge ruled.
     As she navigated a Philadelphia mall on Feb. 20, 2009, Anthoinette Medley carried her infant twin boys in separate SlingRiders from Infantino. She lifted her son, Nelsir Scott, out of his baby carrier during the trip to show him off at one point, but quickly realized that Nelsir was “very unresponsive.”
     Medley immediately called 911 and tried CPR, but the baby had died of suffocation.
     Medley sued Infantino LLC, Wal-Mart Stores East Inc. and Sears Holdings Corp. dba Kmart Corp. – the stores where she allegedly purchased the SlingRiders – and store managers Steve Myers and Jeffrey Weiss on June 7, 2010.
     Her complaint, filed in the Philadelphia Court of Common Pleas, said Infantino recalled more than 1 million slings in March 2010, “after years of ignoring complaints, concerns, data and information about the life-threatening hazards of the SlingRider.” It also and warned consumers “to ‘immediately stop using the slings’ because of a ‘risk of suffocation.'”
     The retail defendants moved for summary judgment, arguing there was no evidence linking the baby carrier in which Nelsir had died to either Wal-Mart or Kmart.
     Medley opposed in April and later filed a pretrial memorandum.
     Though the trial court granted the retailers summary judgment as unopposed in June, it vacated this order a week later.
     Infantino filed a notice of removal on July 10, asserting that dismissal of the retail defendants extracts diversity jurisdiction.
     U.S. District Judge Juan Sanchez disagreed, granting Medley’s motion to remand the case to state court on Friday.
     Infantino failed to show that Medley committed “flagrant forum manipulation” by failing to take discovery from the retail defendants and then abandoning her claims against them, according to the ruling, which cites Tedford v. Warner-Lambert Co.
     “It is undoubtedly true Medley prefers to try this case in state court for tactical reasons,” Sanchez wrote. “However, the circumstances of this case do not suggest the kind of blatant forum manipulation present in Tedford. Medley did not fail to pursue discovery from the retail defendants, and she consistently opposed the retail defendants’ efforts to obtain dismissal of the claims against them, even after the one-year time limit had expired. Moreover, although Infantino characterizes Medley as having abandoned her claims against the retail defendants, the claims are more properly regarded as having been dismissed on the merits. As a result, even if § 1446(b) is subject to equitable exception, such an exception is not appropriate here. Accordingly, because Infantino’s notice of removal was filed beyond the one-year time limit to remove a case based on diversity of citizenship, the motion to remand will be granted.”
     Finding no evidence of forum manipulation, the judge awarded Medley fees and costs.
     “While Infantino’s argument that the one-year limitation in § 1446(b) is subject to equitable exception is objectively reasonable, the argument that such an exception is appropriate in this case is not,” Sanchez wrote. “Therefore, Medley’s request for costs and attorneys’ fees will be granted.”

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