Antoine v. Holcim (U.S.), Inc.
| Decision Date | 07 May 2020 |
| Docket Number | C/A No. 5:20-cv-01156-CMC |
| Parties | Sonia Antoine, Individually and as Personal Representative on Behalf of the Estate of Lennox Wishart Hinckson, Plaintiff, v. Holcim (U.S.), Inc., Claudio Butkus, Sheetalnath Mahalungkar, Richard Simmons, and David Legette, Defendants. |
| Court | U.S. District Court — District of South Carolina |
Through this action, Sonia Antoine ("Plaintiff"), acting as personal representative of the estate of her father, Lennox Wishart Hinckson ("Hinckson"), seeks recovery for losses arising from an industrial accident. The accident occurred when Hinckson was performing maintenance on an elevator at a cement plant owned by Holcim (U.S.), Inc. ("Holcim"). Plaintiff names Holcim and the following Holcim employees as Defendants: Claudio Butkus, Sheetalnath Mahalungkar, Richard Simmons, and David Legette (collectively "Individual Defendants").
The matter is before the court on Plaintiff's motion to remand. For reasons explained below, the motion to remand is granted. Because the court grants the motion to remand, it does not reach Defendants' motion to dismiss which remains pending on remand.
Complaint. Plaintiff filed this action in state court on December 3, 2019. ECF No. 1-1 (Complaint). The Complaint alleges Hinckson was "an elevator technician" who "died while working as a third-party contractor at a cement plant owned, operated, and maintained by Defendants." Id. ¶ 4; see also id. ¶¶ 8, 11 (characterizing Hinckson as a "third party contractor[]"). It further alleges Hinckson was "an employee of Alimak Hek Elevator Company" ("Alimak") and "visited the premises of the Holcim Plaint to conduct routine elevator maintenance." Id. ¶ 15; see also id. ¶ 16 (). According to the Complaint, the "sole business purpose and trade" of the Holcim facility where Hinckson died "is the surface mining of limestone and the production of cement." Id. ¶ 5; see also id. ¶ 6 ().
Removal. Holcim, a citizen of Delaware and Illinois, removed the matter to federal court based on the assertion of diversity jurisdiction. ECF No. 1 at 1-3. The removal papers concede Plaintiff and the Individual Defendants are all citizens of South Carolina, but argue the Individual Defendants' citizenship should be disregarded because they were fraudulently joined. Id. ¶¶ 12-15. Given the nature of the action, Holcim asserts the amount-in-controversy requirement is satisfied, a point that is not in dispute.
The fraudulent joinder argument relies on the limited remedies and corresponding immunities available under South Carolina Workers' Compensation Act, S.C. Code Ann. § 42-1-30 et seq. ("the Act"). Id. ¶¶ 16-23. Specifically, Holcim argues: (1) the Act provides "the exclusive remedy in suits by employees against their employers for injuries . . . arising out of or in the course and scope of employment" (id. ¶ 17); (2) the Act applies to claims against "upstream business owner in certain circumstances" even though the injured party was "not directly employed" by the upstream business (id. ¶ 18); (3) those circumstances exist in this case because "Hinckson was a statutory employee of Holcim for purposes of workers' compensation becausehis work at the plant in servicing the pre-heater tower elevator was an important, necessary, essential, and integral part of Holcim's operations" (id. ¶ 19); and (4) because the Act applies and bars pursuit of recovery from co-employees (absent circumstances not alleged here), as a matter of law, Plaintiff cannot pursue recovery from the Individual Defendants (id. ¶¶ 20-22).
MSHA Report. Holcim attached a Report of Investigation of Hinckson's fatal accident prepared by the United States Department of Labor Mine Safety and Health Administration ("MSHA Report") to the removal papers. ECF No. 1-2. The MSHA Report describes Hinkson as "a contract elevator technician, who had been servicing the plant's elevator for the past seven years." ECF No. 1-2 at 4. The overview section of the MSHA Report states "[t]he accident occurred because Alimak Hek Elevator Company did not have an effective procedure to block the elevator against motion while performing work." Id. (emphasis added). It addresses the relationship between Holcim and Alimak as follows:
ECF No. 1-2 at 5; see also id. at 9 ().
The MSHA Report states "Hinkson had 33 years of experience servicing and erecting Alimak elevators" and had received training from Alimak including "hazard training" that addressed "lockout-tag out requirement and pinch point hazards." Id. at 4. The MSHA Report found the root cause of the accident was "Alimak did not have an effective procedure to preventthe elevator from moving while work was being done." Under "Corrective Action," the MSHA Report states "Alimak has installed lock boxes on the call buttons on each level of the plant" and "revised its training plan to require the locking of call buttons[."]
Motions to Dismiss and Remand. On April 8, 2020, the parties filed cross-motions to dismiss (ECF No. 4) and remand (ECF No. 7), raising related arguments. Both motions are fully briefed. See ECF Nos. 4, 7, 17, 18, 19. However, because the court grants Plaintiff's motion to remand, it does not reach Defendants' motion to dismiss.
Plaintiff advances two grounds for remand. First, she argues "the common defense or common defect exception precludes application of the fraudulent joinder doctrine" under the facts of this case. ECF No. 7 at 1; ECF No. 7-1 at 7-8 (). Second, she argues Holcim cannot satisfy the high standard required to show fraudulent joinder: that Plaintiff has "no possibility . . . of avoiding the exclusivity defense asserted by Defendants." ECF No. 7 at 1 (emphasis in original); ECF No. 7-1 at 8-12.
In opposition, Holcim argues the common defense exception to the fraudulent joinder doctrine has not been adopted by the Fourth Circuit and is, in any event, inapplicable because of differences between the defenses advanced by Holcim (exclusivity of the Act's remedies) and the Individual Defendants (co-employee immunity under the Act). ECF No. 18 at 7-13. Turning to fraudulent joinder, Holcim argues the Individual Defendants are immune from suit as Hinckson's co-employees because Holcim was Hinckson's statutory employer. Holcim argues the court must find it was Hinckson's statutory employer because the elevator was essential to Holcim's operations. Id. at 13-19; see also id. at 19-33 ().
Asserting the court may consider materials beyond the pleadings, Holcim attaches and relies on both the MSHA Report (ECF No. 18-2) and a declaration of one of the Individual Defendants, Sheetalnath Mahalungkar (ECF No. 18-1).1 The declaration addresses the necessity for a properly functioning elevator (referred to as a "shaft-less industrial hoist"), concluding as follows:
[I]t is essential for Holcim's business and its operations to ensure that the shaft-less industrial hoist at issue is in working condition and that it meets state and federal guidelines. Accordingly hoist maintenance, including everything from emergency repairs to preventative service, is a necessary, essential, and integral part of Holcim's operations.
ECF No. 18-2 ¶¶ 5-8. The declaration further explains:
10. While Holcim employs its own technicians to perform other necessary inspections and monitoring, maintenance, and operational tasks on the preheater tower, Holcim has found it efficient to contract out to Alimak the repairs and maintenance of the shaft-less industrial hoist at issue, as well as the repairs and maintenance of other lifts at the plant. As a result, Alimak's technicians routinely work at the plant. In the past two years, for instance, Alimak technicians have been at the plant at least 69 times. While there, the Alimak technicians are provided with company-issued radios to report to the plant's maintenance contact and to communicate with the control room. Lennox Hinckson was one of two primary Alimak technicians frequently on site. Upon information and belief, Mr. Hinckson had performed service and maintenance on the shaft-less industrial hoist at issue since 2003 and, in fact, worked on the installation of it in 2002.
A district court may disregard a nondiverse party and retain jurisdiction if the nondiverse party was fraudulently joined. See Mayes v. Rapaport, 198 F.3d 457, 461 (4th Cir. 1999). To show fraudulent joinder, the removing party "must demonstrate either 'outright fraud in the plaintiff's pleading of jurisdictional facts' or that 'there is no possibility that the plaintiff would be able to establish a cause of action against the in-state def...
To continue reading
Request your trial