Adkins v. Consolidation Coal Co.
| Decision Date | 13 April 2012 |
| Docket Number | Civil Action No. 2:11–0285. |
| Citation | 856 F.Supp.2d 817 |
| Parties | Melissa ADKINS, as Administratrix of the Estate of Jessie Reuben Adkins, Plaintiff, v. CONSOLIDATION COAL COMPANY, a foreign corporation, Consol Energy, Inc. a foreign corporation Todd Moore, Richard Marlowe, James Brock, Brent McClain, Wayne Conaway, Joseph Morgan, and Larry Mayle, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
OPINION TEXT STARTS HERE
Adam L. McCoy, David A. Sims, Law Offices of David A. Sims, Elkins, WV, Geoffrey N. Fieger, Fieger, Fieger, Kenney, Giroux and Danzig, Southfield, MI, for Plaintiffs.
Deva A. Solomon, John R. Callcott, Steptoe & Johnson, Morgantown, WV, Robert M. Vukas, Canonsburg, PA, Steven P. McGowan, Steptoe & Johnson, Charleston, WV, for Defendants.
Pending is plaintiff's motion to remand, filed May 23, 2011, and defendants' motion to dismiss, filed May 3, 2011.
Where, as here, a motion to remand and a Rule 12(b)(6) motion to dismiss are both made, it is ordinarily improper to resolve the Rule 12(b)(6) motion before deciding the motion to remand. The question arising on the motion to remand as to whether there has been a fraudulent joinder is a jurisdictional inquiry. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3rd Cir.1992); cf. Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir.1999) (). For the reasons set forth below, plaintiff's motion to remand is granted.
Plaintiff brings this action as the representative of the estate of her deceased husband, Jessie Reuben Adkins. She is a resident of Barbour County, West Virginia. Defendants Consolidation Coal Company (“Consolidation”) and Consol Energy, Inc. (“Consol”), which is the parent of Consolidation, are Delaware corporations with principal places of business in Pennsylvania. 1 Defendant Richard Marlowe is a citizen of Pennsylvania. Defendants Todd Moore, James Brock, Brent McClain, Wayne Conaway, Joseph Morgan, and Larry Mayle (“nondiverse defendants”) are all citizens of West Virginia, and all but Moore were employed by Consolidation. Moore, as well as Marlowe, were Consol employees.
The following allegations are taken from the complaint. Jesse Adkins worked as a miner at Consolidation's Loveridge # 22 mine in Marion County, West Virginia. (Compl. ¶ 3). On the morning of July 29, 2010, shortly after he began his shift at the mine, a large rock fell from a nearby roof and rib and crushed Mr. Adkins. ( Id. ¶ 18). He died later that day. ( Id. ¶ 19). At all relevant times, defendants Moore and Marlowe were corporate safety officers for Consol; Brock was a vice president for Consolidation's northeast region; McClain was the superintendent for Loveridge # 22 mine; Conaway was the Safety Director for the mine; Morgan was a foreman mentor at the mine; and Mayle was a foreman and day shift supervisor at the mine. ( Id. ¶¶ 6–12).
Plaintiff, Mr. Adkins' widow, instituted this action in the Circuit Court of Kanawha County on April 7, 2011. Defendants removed on April 26, 2011, invoking the court's diversity jurisdiction. The complaint sets forth seven counts against defendants: Count I is a deliberate intent claim against Consolidation; Count II is a deliberate intent claim against Brock, McClain, Conaway, Morgan, and Mayle; Count III is a negligence claim against Consol, Moore, and Marlowe; Count IV is a vicarious liability claim against all defendants; Count V is a claim for civil conspiracy against all defendants; and Counts VI and VII simply request compensatory and punitive damages, respectively. ( See id. ¶¶ 69–114).
Plaintiff has moved to remand, asserting that the nondiverse individual defendants defeat complete diversity and that this court thus lacks subject matter jurisdiction. In opposition to remand, defendants claim that the nondiverse individual defendants were fraudulently joined solely for the purpose of defeating diversity jurisdiction. Defendants have also moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on several grounds discussed below.
“A defendant may remove any action from a state court to a federal court if the case could have originally been brought in federal court.” Yarnevic v. Brink's, Inc., 102 F.3d 753, 754 (4th Cir.1996) (citing 28 U.S.C. § 1441). Federal district courts have original jurisdiction over actions between citizens of different states in which the matter in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a).
The doctrine of fraudulent joinder permits a district court to “disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999). Our court of appeals lays a “heavy burden” upon a defendant claiming fraudulent joinder:
“In order to establish that a nondiverse defendant has been fraudulently joined, the removing party must establish either: [t]hat there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or [t]hat there has been outright fraud in the plaintiff's pleading of jurisdictional facts.”
Id. at 464 (emphasis in original) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993)). The applicable standard “is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999). Indeed, “ ‘the defendant must show that the plaintiff cannot establish a claim against the nondiverse defendant even after resolving all issues of fact and law in the plaintiffs favor.’ ” Mayes, 198 F.3d at 464 (quoting Marshall, 6 F.3d at 232–33).
As Hartley illustrates, fraudulent joinder claims are subject to a rather black-and-white analysis in this circuit. Any shades of gray are resolved in favor of remand. See Hartley, 187 F.3d at 425. At bottom, a plaintiff need only demonstrate a “glimmer of hope” in order to have his claims remanded:
In all events, a jurisdictional inquiry is not the appropriate stage of litigation to resolve ... various uncertain questions of law and fact ... Jurisdictional rules direct judicial traffic. They function to steer litigation to the proper forum with a minimum of preliminary fuss. The best way to advance this objective is to accept the parties joined on the face of the complaint unless joinder is clearly improper. To permit extensive litigationof the merits of a case while determining jurisdiction thwarts the purpose of jurisdictional rules.
* * * * * *
We cannot predict with certainty how a state court and state jury would resolve the legal issues and weigh the factual evidence in this case. [Plaintiff's] claims may not succeed ultimately, but ultimate success is not required.... Rather, there need be only a slight possibility of a right to relief. Once the court identifies this glimmer of hope for the plaintiff, the jurisdictional inquiry ends.
Id. at 425–26 (citations omitted). In determining “whether an attempted joinder is fraudulent, the court is not bound by the allegations of the pleadings, but may instead consider the entire record, and determine the basis of joinder by any means available.” Mayes, 198 F.3d at 464 (internal quotations omitted).
Inasmuch as defendants do not allege any fraud in the pleading, the only question for fraudulent joinder purposes is whether plaintiff has any possibility of recovery in state court against the nondiverse defendants. The complaint asserts four counts against the nondiverse defendants: Count II for deliberate intent against Brock, McClain, Conaway, Morgan, and Mayle; Count III for negligence against Moore; Count IV for vicarious liability against all defendants; and Count V for civil conspiracy against all defendants.
The West Virginia Workers' Compensation Act generally immunizes covered employers from suits for damages “at common law or by statute” resulting from work-related injuries. W. Va.Code § 23–2–6. This immunity is, by West Virginia Code § 23–2–6a, extended “to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intent.”
Immunity is lost, however, by an employer who acts with “deliberate intention.” Id.§ 23–4–2(d)(2). As set forth below, it may also be lost by an employee who acts with deliberate intent. If the deliberate intent exception applies, the injured employee may file an action for damages in excess of workers' compensation benefits. Id.§ 23–4–2(c).
Section 23–4–2(d)(2) starts with an introductory provision setting forth in general terms the deliberate intent exception to immunity. That provision is followed by subsections (d)(2)(i) and (d)(2)(ii), which provide two distinct methods of proving that one has acted with “deliberate intention.” In its entirety, § 23–4–2(d)(2) reads as follows:
(2) The immunity from suit provided under this section and under sections six and six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention”. This requirement may be satisfied only if:
(i) It is proved that the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence,...
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