Chau v. Air Cargo Carriers, LLC, CIVIL ACTION NO. 2:19-cv-00452
| Decision Date | 10 February 2020 |
| Docket Number | CIVIL ACTION NO. 2:19-cv-00452 |
| Parties | VIRGINIA CHAU, Plaintiff, v. AIR CARGO CARRIERS, LLC, et al., Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Before the Court is a motion to remand filed by Plaintiff, Virginia Chau, as Administratrix of the Estate of Anh Kim Ho ("Plaintiff"). (ECF Nos. 9, 15, 64.) For the reasons discussed below, the motion is GRANTED.
The factual background and proper legal standard implicated in this case is set forth fully in this Court's prior Memorandum Opinion and Order and need not be repeated at length here. (See ECF No. 49.) The Court will outline only the factual and procedural background relevant to the present motion.
This action arises from an airplane crash that occurred on May 5, 2017, at Yeager Airport in Charleston, West Virginia. (ECF No. 1-1 at 6 ¶ 24.) Defendant United Parcel Services Co. ("UPS") operates a cargo airline that contracts with Defendant Air Cargo Carriers' ("ACC") to provide short haul airline services. (Id. at 4 ¶ 2, 5 ¶¶ 3, 6.) ACC's Flight No. 1260 crashed while completing a regularly scheduled cargo route between Louisville, Kentucky, and Charleston, West Virginia. (Id. at 9 ¶ 24.) Plaintiff's decedent, Anh Kim Ho, was the first officer on the aircraft, and Jonathan Pablo Alvarado, was the captain piloting the plane. (Id. at 4 ¶ 1, 5 ¶ 5, 9 ¶ 24.) Both Anh Ho and Alvarado were killed in the crash. (Id. at 10 ¶ 26.)
On May 3, 2019, Plaintiff filed this action in the Circuit Court of Kanawha County, West Virginia, asserting claims against UPS, ACC, and Alvarado. On June 13, 2019, UPS filed a notice of removal, asserting federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. (ECF No. 1.) Plaintiff filed the present motion to remand on June 27, 2019. (ECF Nos. 9, 15.) This Court granted the motion in part in its November 14, 2019, Memorandum Opinion and Order on the basis that Plaintiff's claims presented no federal question jurisdiction. (ECF No. 49.) After hearing oral argument on the motion with respect to diversity jurisdiction, this Court found that Alvarado was a citizen of Texas at the time of his death and that complete diversity exists between the parties to permit removal under 28 U.S.C. § 1332. Nonetheless, Plaintiff asserted at the hearing on December 16, 2019, that the removal was defective because UPS failed to obtain consent from the Sheriff of Kanawha County as the Administrator of the Estate of Alvarado ("Estate"). The Court ordered supplemental briefing on the issue, which is now fully briefed and ripe for adjudication.1
The sole issue before the Court is to determine whether the Estate's consent was required for removal of this action to federal court. Under U.S.C. § 1446(a), "[a] defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pendinga notice of removal." Generally, all defendants must unanimously join in or consent to removal within thirty days of being served with the initial pleading. See 28 U.S.C. § 1446(b)(2). This requirement, commonly known as the "rule of unanimity," requires that each defendant "register to the Court its official and unambiguous consent to a removal petition filed by a co-defendant." Stonewall Jackson Mem'l Hosp. v. Am. United Life Ins. Co., 963 F. Supp. 553, 558 (N.D. W. Va. 1997). See Maryland Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005) (). Courts have long recognized that an exception to the rule of unanimity exists for nominal parties, who are not required to consent to removal. See Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013); Shaffer v. Northwestern Mut. Life Ins. Co., 394 F. Supp. 2d 814, 819 (N.D. W. Va. 2005) (). "This 'nominal party exception' ensures that only those parties with a palpable interest in the outcome of a case, and not those without any real stake, determine whether a federal court can hear a case." Hartford Fire Ins. Co., 736 F.3d at 259.
The Fourth Circuit has clarified that "[n]ominal means simply a party having no immediately apparent stake in the litigation either prior or subsequent to the act of removal." Id. at 260. Stated differently, "the key inquiry is whether the suit can be resolved without affecting the non-consenting nominal defendant in any reasonably foreseeable way." Id. "Determining nominal party status is a practical inquiry," based "on the particular facts and circumstances of a case." Id. In applying this standard, the Fourth Circuit found in Hartford that a defendant was nominal because the plaintiff sought neither monetary nor declaratory injunctive relief against it, and, accordingly, the defendant in no way would be directly affected by the outcome of the case.Id. at 261. In addition, the court stated that the defendant's nominal status was evident considering that if it were "not included in this action, it would have no effect on [the plaintiff's] ability to be made whole by the other [defendants]." Id.
In this case, the Estate did not consent to removal within the 30-day limit imposed by statute. Whether removal is proper, thus, turns on whether the Estate should be considered a nominal party or a real party in interest whose failure to join in the notice of removal requires the Court to remand this case to state court.
UPS argues that the Estate is a nominal party and, as a result, it was not required to obtain its consent before removing the case to this Court. In support of this proposition, UPS first argues that the Estate is a nominal defendant because it contains no assets to satisfy any judgment against it. (ECF No. 67 at 4-6.) UPS cites to the Administrator's May 17, 2019, appraisement of the Estate, which states that the Estate has no assets. (ECF No. 1-8.) UPS contends that, because the Estate is essentially judgment proof, the Court should find that it is a nominal party. However, the existence or non-existence of assets is not the test for defining a nominal party. Instead, the Court is to inquire "whether the non-removing party has an interest in the outcome of the case." Hartford Fire Ins. Co., 736 F.3d at 261. In this case, Plaintiff seeks monetary relief from the Estate, and the Estate has filed an answering denying liability creating a material dispute between the parties. Further, Plaintiff's claims against Alvarado are separate and distinct from those asserted against UPS and ACC.2 Thus, it cannot be said that the Estate's "absence would not prevent the Court from being able to enter final judgment in favor of the plaintiff . . . without otherwise materiallycircumscribing the relief due." Id. In sum, the contention that the Estate may be judgment proof alone is insufficient to deem the Estate a nominal party.
Second, UPS argues that the Estate is a nominal party because Alvarado is immune from liability for Plaintiff's claim against him under the West Virginia Workers' Compensation Statute, W. Va. Code § 23-1-1, et seq. Under West Virginia law, employers contributing to the state workers' compensation fund are immune from suits predicated upon the injury or death of an employee. See W. Va. Code § 23-2-6 (2005). This immunity extends 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." W. Va. Code § 23-2-6a. Such immunity can only be lost in one of two ways: "(1) by defaulting in payments required by the Act or otherwise failing to comply with the provisions of the Act, or (2) by deliberately intending to produce injury or death to the employee."3 Smith v. Monsanto Co., 822 F. Supp. 327, 330 (S.D. W. Va. 1992) (citations omitted); Bell v. Vecellio & Grogan, Inc., 475 S.E.2d 138, 141 (W. Va. 1996); W. Va. Code § 23-4-2(c).
As further detailed in the Estate's Motion to Dismiss,4 UPS contends there is no basis for imputing liability against the Estate pursuant to West Virginia's Workers' Compensation Statutebecause the Complaint fails to allege that Alvarado acted with "deliberate intention" to inflict injury. Plaintiff responds that the Estate is not entitled to statutory immunity under the Workers' Compensation Statute for two reasons. First, she contends that the Estate does not qualify for immunity because Alvarado's purportedly fraudulent act was not taken in furtherance of the employer's business and, thus, falls outside a statutory deliberate intent claim. (ECF No. 63 at 9.)
Section 23-2-6a of the Workers' Compensation Statute extends immunity to co-employees only when such employee "is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention." In the Complaint, Plaintiff claims that Alvarado made fraudulent misrepresentations about his piloting qualifications and proficiency in his application to work for ACC. (ECF No. 1-1 at 17 ¶ 50.) The Complaint states that the Pilot Records Improvement Act and standard aviation industry practices required Alvarado to be truthful on his application and that his misrepresentations were relied upon as a basis for his employment. (Id.) Plaintiff further alleges that her decedent relied on the fact that Alvarado was truthful in his application and "would not have trusted her life by flying with [him] if she knew he had materially misrepresenting [sic] his proficiency, pilot skills and failed historical check rides, specifically...
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