Dotson v. Elite Oil Field Servs., Inc.

• Decision Date: 04 March 2015
• Docket Number: Civil Action No. 1:15CV7.
• Citation: 91 F.Supp.3d 865
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Donald DOTSON, Christine Dotson, H.G.D., a minor, D.D.IV, a minor, and A.H., a minor, Plaintiffs, v. ELITE OIL FIELD SERVICES, INC. and Jeffrey A. Hess, Defendants.

91 F.Supp.3d 865

Donald DOTSON, Christine Dotson, H.G.D., a minor, D.D.IV, a minor, and A.H., a minor, Plaintiffs

v.ELITE OIL FIELD SERVICES, INC. and Jeffrey A. Hess, Defendants.

Civil Action No. 1:15CV7.

United States District Court, N.D. West Virginia.

Signed March 4, 2015.

T. Keith Gould, The Miley Legal Group, Clarksburg, WV, for Plaintiffs.

Christopher A. Brumley, Christopher M. Jones, Nathaniel K. Tawney, Flaherty Sensabaugh & Bonasso PLLC, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO. 5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT [DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS' SECOND MOTION TO DISMISS [DKT. NO. 24]

IRENE M. KEELEY, District Judge.

Pending before the Court is the motion to remand filed by the plaintiffs, Donald Dotson, Christine Dotson, H.G.D., a minor, D.D.IV, a minor, and A.H., a minor (“the Dotsons”). Also pending is the motion to dismiss filed by the defendant, Jeffrey A. Hess (“Hess”) (Dkt. No. 8). For the reasons that follow, the Court DENIES the motion to remand (Dkt. No. 5), GRANTS the motion to dismiss Hess from the original complaint (Dkt. No. 8), DISMISSES the amended complaint as to Hess (Dkt. No. 14), and DENIES AS MOOT Hess' second motion to dismiss (Dkt. No. 24).

I. BACKGROUND

Plaintiff Donald Dotson (“Dotson”) worked for defendant Elite Oil Field Services, Inc. (“Elite”) as a semi-tractor operator. In that capacity, Dotson hauled steel containers or boxes of mud from oil and gas well operations to a designated disposal facility. To that end, Elite assigned Dotson to a 2000 model T–800 Kenworth tractor hauling a roll-off trailer.

As of August 27, 2013, Elite had contracted with a third-party to haul mud from a gas well drilling operation near Jacksonburg, West Virginia, and had assigned Dotson to that job. Hess, Dotson's supervisor and a truck boss for Elite, was responsible for assigning Elite's vehicles to jobs and to drivers, and managing the scheduling of vehicle maintenance and other repairs.

On August 16 or 17, 2013, Dotson, who was returning from dropping off a load, was operating the truck with an empty trailer on Route 50 in Harrison County, West Virginia. The truck's brakes overheated, began to smoke, and caught on fire. Dotson stopped the vehicle, called Hess, and explained to him that the brakes had caught on fire. Hess arranged for Dotson to be picked up, for the truck to be towed, and for the necessary repairs to be made.

Dotson alleges that, rather than having the necessary repairs made, Hess assigned the truck to another driver, who reported transmission damage. On August 22, 2013, the truck was taken to a repair facility in Preston County to have the transmission repaired. Once the transmission was repaired, Hess told Dotson that the truck was fixed, and that he was to take the truck to Jacksonburg to haul mud.

On August 27, 2013, Dotson drove the truck to the drilling pad, where it was loaded with a box filled with drilling mud. As Dotson began to drive the truck off the drilling site, which required a descent down a haul road with an approximately 14% downhill grade, the truck's brakes failed, and the truck careened out of control. Eventually, it crashed into a ditch or creek bed on the right side of the road, resulting in severe injuries to Dotson, including a head injury and a fracture and dislocation of his left hip.

On December 19, 2014, the Dotsons sued Elite Oil and Hess in the Circuit Court of Harrison County, West Virginia (Dkt. No. 3–1). On January 16, 2015, Elite and Hess filed a notice of removal in this Court, alleging diversity jurisdiction (Dkt. No. 1). The Dotsons are residents of Doddridge County, West Virginia (Dkt. No. 3 at 2). Elite is a Pennsylvania corporation with its principal place of business in Waynesburg, Pennsylvania. Id. Hess is a citizen of West Virginia; however, Elite and Hess contend that he was fraudulently joined as a party in order to defeat diversity. Id. at 3.

On January 22, 2015, the Dotsons filed a motion to remand the case to state court (Dkt. No. 5). On February 5, 2015, Elite and Hess responded, opposing the motion on the ground that Hess was fraudulently joined (Dkt. No. 11). Then, on January 23, 2015, Hess filed a motion to dismiss, alleging that the complaint fails to assert a deliberate intention claim cognizable under West Virginia law (Dkt. No. 9 at 2). The Dotsons filed a response opposing Hess' motion on February 9, 2015 (Dkt. No. 13). Hess filed a reply on February 16, 2015 (Dkt. No. 18).¹

The Dotsons also amended their complaint as of right on February 9, 2015 (Dkt. No. 14).² On February 16, 2015, at the Court's direction, Elite and Hess filed a supplemental response in opposition to the motion to remand in light of the Dotson's amended complaint (Dkt. No. 17), and the Dotsons supplemented their response to the motion on February 20, 2015 (Dkt. No. 20). The motions are now fully briefed and ready for review.³

II. LEGAL STANDARD

A. Fraudulent Joinder

When an action is removed from state court, a federal district court must determine whether it has original jurisdiction over the plaintiff's claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree.” Id.

Federal courts have original jurisdiction primarily over two types of cases, (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving diversity of citizenship under 28 U.S.C. § 1332. When a party seeks to remove a case based on diversity of citizenship under 28 U.S.C. § 1332, that party bears the burden of establishing “the amount in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between citizens of different states.” 28 U.S.C. § 1332. Courts should resolve any doubt “about the propriety of removal in favor of retained state court jurisdiction.” Marshall v. Manville Sales Corp., 6 F.3d 229, 232–33 (4th Cir.1993).

The doctrine of fraudulent joinder is a narrow exception to the complete diversity requirement. Jackson v. Allstate Ins. Co., 132 F.Supp.2d 432, 433 (N.D.W.Va.2000) (Broadwater, J.). If the doctrine applies, the Court can exercise removal jurisdiction even though a non-diverse party is a defendant. Id. (citing Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999) ). The Court can disregard the citizenship of and dismiss the non-diverse defendant, thereby retaining jurisdiction over the case. Mayes, 198 F.3d at 461.

The removing party bears the “heavy burden of showing that there is no possibility of establishing a cause of action against [a] non-diverse party” by clear and convincing evidence. Jackson, 132 F.Supp.2d at 433 (citing Hartley v. CSX Transp. Inc., 187 F.3d 422, 424 (4th Cir.1999) ); Clutter v. Consolidation Coal Co., 2014 WL 1479199 at *4 (N.D.W.Va. Apr. 15, 2014) (Stamp, J.). In the alternative, the removing party can establish that “there has been outright fraud in the plaintiff's pleading of jurisdictional facts.” Pritt v. Republican Nat. Committee, 1 F.Supp.2d 590, 592 (S.D.W.Va.1998). “[F]raudulent joinder claims are subject to a rather black-and-white analysis in this circuit. Any shades of gray are resolved in favor of remand.” Adkins v. Consolidation Coal Co., 856 F.Supp.2d 817, 820 (S.D.W.Va.2012).

The Court must resolve all issues of fact and law in the plaintiff's favor, but, in doing so, “is not bound by the allegations of the pleadings.” Marshall, 6 F.3d at 232–33 ; AIDS Counseling and Testing Centers v. Group W Television, Inc., 903 F.2d 1000, 1004 (4th Cir.1990).

Instead, the Court can consider “the entire record, and determine the basis of joinder by any means available.” AIDS Counseling, 903 F.2d at 1004 (quoting Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964) ). The standard for fraudulent joinder is more favorable to the plaintiff than the standard for a Rule 12(b)(6) motion to dismiss. Mayes, 198 F.3d at 464.

Significantly, when ruling on a motion to remand based on fraudulent joinder, the Court cannot consider post-removal filings “to the extent that they present new causes of action or theories not raised in the controlling petition filed in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir.1999). A plaintiff cannot “ ‘re-plead the complaint [after removal] in an attempt to divest this court of jurisdiction by hindsight.’ ” McCoy v. Norfolk Southern Ry. Co., 858 F.Supp.2d 639, 642 n. 1 (S.D.W.Va.2012) (quoting Justice v. Branch Banking & Trust Co., 2009 WL 853993 at *7 (S.D.W.Va. Mar. 24, 2009) ). The Court must determine removal jurisdiction “on the basis of the state court complaint at the time of removal, and ... a plaintiff cannot defeat removal by amending it.” Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir.1995). Nonetheless, “if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

B. Deliberate Intention

The West Virginia Workers' Compensation Act generally provides broad immunity to qualifying employers against employees' tort actions.See W. Va.Code § 23–2–6. The “deliberate intention” statute, however, carves out an exception to that immunity. An employee may recover from an employer or “person against whom liability is asserted” under either of two prongs. W. Va.Code § 23–4–2(d)(2) ; Syl. Pt. 1, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990). Under the first prong, § 23–4–2(d)(2)(i), an employee can satisfy the statutory requirements by proving “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...