Bazilla v. Belva Coal Co.

• Decision Date: 13 September 1996
• Docket Number: No. 2:96-0348.,2:96-0348.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Anthony BAZILLA, et al., Plaintiffs, v. BELVA COAL CO., et al., Defendants.

939 F. Supp. 476

Anthony BAZILLA, et al., Plaintiffs,
v.
BELVA COAL CO., et al., Defendants.

No. 2:96-0348.

United States District Court, S.D. West Virginia, Charleston Division.

September 13, 1996.

939 F. Supp. 477

Michael F. Niggemyer, Charleston, WV, Warren R. McGraw, II, Beckley, WV, for plaintiffs.

Carl J. Roncaglione, Jr., Daniels Law Firm, Charleston, WV, for Belva Coal Company, Belva Acquisition, Inc., Charles Steven Robinson, Ross Kegan, individually and as partners and/or officers/owners of Madison Branch Management, Inc., Rich Creek Mining Contractors, Inc., Belva Coal Company and/or Golden Oak Mining, L.P.

D.C. Offutt, Jr., Offutt, Eifert, Fisher, Duffield & Nord, Huntington, WV, for Golden Oak Mining, L.P.

Sheryl S. Mahaney, Richard J. Bolen, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, for William B. Sturgill.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending are Defendants' Motions to Dismiss and Plaintiffs' Motion to Remand. Also pending is Defendants' Belva Coal, Belva Acquisition, and Charles Stevens Robinson's Motions to Adopt. The Court GRANTS Plaintiff's Motion to Remand and DENIES Defendants' motions without prejudice.

Originally, the Complaint was filed in the Circuit Court of Logan County. It named the following defendants: Paul Sturgill, William B. Sturgill, Charles Steven Robinson, Ross Kegan, Belva Coal Co., Belva Coal Acquisitions Inc., and Golden Oak Mining.

Paul Sturgill was served with the Complaint on January 12, 1996. Defendants Belva Coal Co. and Belva Coal Acquisition were served on March 8. On April 16, Belva Coal, Belva Acquisitions and Charles Steven Robinson, who had not yet been served, removed the case to this Court.

Defendants Golden Oak Mining and William B. Sturgill were served with the Complaint on May 28. Defendant Charles Steven Robinson appears to have been served on June 8. On June 20, Defendant William B. Sturgill timely filed a notice of removal in this Court. His notice of removal was joined, in writing, by counsel for all defendants. Jurisdiction to remove was based on Defendants' allegation that Plaintiffs' state law claims were pre-empted by ERISA and by Section 301 of the Labor Management Relations Act.

Plaintiffs countered that Defendants' removal procedure was defective and that the case must, therefore, be remanded. 28 U.S.C. § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ...

Section 1447(c) specifies two grounds for remand, one of which is a "defect in the removal procedure." An untimely removal notice or any "failure to comply with the requirements of § 1446(b) constitutes a `defect in removal procedure.'" Page v. City of Southfield, 45 F.3d 128, 131 (6th Cir.1995) (citations omitted).

On more than one occasion this Court has recognized that that "removal statutes must be strictly construed against removal. Any doubts concerning the propriety of removal must be resolved in favor of retained state court jurisdiction." Scott v. Greiner, 858 F.Supp. 607, 610 (S.D.W.Va. 1994) (Haden, C.J.) (citations omitted). "As a creature of statute, removal comes with statutory procedures and requirements that are mandatory in nature." Henderson v. Holmes, 920 F.Supp. 1184, 1186 (D.Kan. 1996). Our Court of Appeals has observed:

the burden of establishing federal jurisdiction is placed upon the party seeking removal. Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction.

Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir.1994) (citations omitted).

While the removal statute does not require expressly, it is well established that "all defendants must join in the petition for removal." Gibson v. Tinkey, 822 F.Supp. 347, 348 (S.D.W.Va.1993); Means v. G & C Towing, Inc., 623 F.Supp. 1244 (S.D.W.Va. 1986). Here, all defendants purported to

939 F. Supp. 478

join in William Sturgill's June 20 removal petition, which was filed within thirty days after he was served. It also appears Defendants Charles Steven Robinson, Golden Oak Mining, and Charles Steven Robinson joined in the William Sturgill removal petition within thirty days of service upon them. The Court has not been able to...