Formosa v. Lowe's Home Ctrs, Inc.

• Decision Date: 15 August 2011
• Docket Number: Case No. 2:10–cv–2411–SLB.
• Citation: 80 Fed.R.Serv.3d 590,806 F.Supp.2d 1181
• Parties: Marie FORMOSA, Plaintiff, v. LOWE'S HOME CENTERS, INC.; L.G. Sourcing, Inc., Defendants.
• Court: U.S. District Court — Northern District of Alabama

80 Fed.R.Serv.3d 590

806 F.Supp.2d 1181

Marie FORMOSA, Plaintiff,

v.LOWE'S HOME CENTERS, INC.; L.G. Sourcing, Inc., Defendants.

Case No. 2:10–cv–2411–SLB.

United States District Court, N.D. Alabama.

Aug. 15, 2011.

Ralph Bohanan, Jr., Bohanan & Associates PC, Henry C. Dailey, Jr., Henry C. Dailey, Jr. PC, Michael Brent Walker, Bohanan & Associates PC, Birmingham, AL, for Marie Formosa.

Joseph E. Stott, Scott Sullivan Streetman & Fox PC, Birmingham, AL, for Lowes Home Centers Inc., and L.G. Sourcing Inc.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is before the court on defendant L.G. Sourcing's Motion to Sever and for Partial Remand, (doc. 3),¹ and plaintiff Formosa's Motion to Remand, (doc. 8). Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that L.G. Sourcing's Motion to Sever and for Partial Remand is due to be granted and plaintiff's Motion to Remand is due to be denied.

I. BACKGROUND

Plaintiff Formosa commenced this action in the Circuit Court of Jefferson County, Alabama against Lowe's Home Centers, Inc., (“Lowe's”); L.G. Sourcing, Inc., (“L.G. Sourcing”); and twenty-seven fictitious defendants. Formosa is a citizen of Alabama, while defendants Lowe's and L.G. Sourcing are both North Carolina corporations, each with a home office and principal place of business in North Carolina. (Doc. 1 at 2.)

In her state-court Complaint, Formosa alleges that on or about August 1, 2008, in the scope of her employment with Lowe's, she was injured when the leg of the backless bar stool she was sitting on came off, causing her to fall to the ground and injure her back, left leg, and hip. (Doc. 1 at 12 ¶ 1.) Count One of the Complaint alleges a claim for worker's compensation benefits against Lowe's under the Workers' Compensation Act of Alabama, Ala.Code 1975 § 25–5–80. (Doc. 1 at 12.) Counts Two, Three, and Four of the Complaint allege claims of negligent and wanton design of the barstool, negligent failure to warn, and breach of express and/or implied warranties against L.G. Sourcing and the fictitious defendants under state law, including the Alabama Extended Manufacturer's Liability Doctrine (“AEMLD”). (Doc. 1 at 12–14.) Formosa's Complaint seeks both compensatory and punitive damages and demands a jury trial. (Doc. 1 at 15.)

The Summons and Complaint were served on defendant L.G. Sourcing on August 9, 2010, and L.G. Sourcing filed a Notice of Removal in this court on September 7, 2010. (Doc. 1.) L.G. Sourcing removed the case pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction. See 28 U.S.C. § 1332. In the Notice of Removal, L.G. Sourcing argues that the workmen's compensation claim against Lowe's was improperly and/or fraudulently joined to the state law claims against L.G. Sourcing and, therefore, the worker's compensation claim should be severed from the other counts and be remanded to state court. (Doc. 1 at 3.) L.G. Sourcing asserts that the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs, ( id.), and Formosa has not disputed this assertion.

On the same day that it filed its Notice of Removal, L.G. Sourcing filed a Motion to Sever and For Partial Remand (“Motion to Sever”), in which it moves the court to sever the worker's compensation claim in Count I from the remaining allegations against L.G. Sourcing, remand the worker's compensation claim to state court, and retain jurisdiction over the remaining state law claims against L.G. Sourcing. On October 12, 2010, the deadline given by this court for the parties to file opposition to L.G. Sourcing's Motion to Sever, Formosa filed a Motion to Remand, arguing that this court should remand the entire case back to state court, rather than sever the claims. (Doc. 8.)

II. DISCUSSION

Pursuant to 28 U.S.C. § 1441(a), “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Accordingly, “when an action is removed from state court, the district court first must determine whether it has original jurisdiction over the plaintiff's claims.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.1999).

A removing defendant has the burden of establishing the propriety of removal under § 1441 and, therefore, must establish the existence of federal jurisdiction. Leonard v. Enterprise Rent A Car, 279 F.3d 967, 972 (11th Cir.2002). Because of federalism concerns implicated by removal jurisdiction, removal statutes must be construed narrowly, with all doubts to be resolved in favor of remand. Am. Tobacco Co., 168 F.3d at 411; Whitt v. Sherman Int'l Corp., 147 F.3d 1325, 1333 (11th Cir.1998) (noting Eleventh Circuit preference for remand where federal jurisdiction not “absolutely clear”).

Federal law prohibits the removal of certain types of actions by designating them as “nonremovable.” 28 U.S.C. § 1445. In particular, civil actions brought in state court “arising under the workmen's compensation laws” of the state may not be removed to federal court. 28 U.S.C. § 1445(c). It is undisputed here that Formosa's claim against Lowe's for worker's compensation benefits in Count I of the Complaint falls within the types of actions that may not be removed under § 1445(c). However, because plaintiff's Motion to Remand was filed more than thirty days after the case was removed, the court must address the effect of the late Motion to Remand on both the workers' compensation claim and the remaining common law claims.

Timeliness of Motion to Remand

Formosa argues that § 1445(c) prohibits removal of actions arising under a state's worker's compensation laws, and “[b]ecause the Plaintiff has alleged a workers' compensation claim against Co–Defendant Lowe's Home Centers, Inc. in her Complaint, the case is due to be remanded.” (Doc. 9 at 3.) A motion to remand on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal. 28 U.S.C. § 1447(c). Formosa's Motion to Remand was filed 35 days after the case was removed. L.G. Sourcing argues that the entire case cannot be remanded because Formosa's Motion to Remand was untimely. Specifically, L.G. Sourcing argues that a motion to remand under § 1445 is procedural in nature, and, therefore, Formosa waived her right to contest the procedural defect by failing to move for remand within thirty days of removal. (Doc. 10 at 2.) If the basis of Formosa's Motion to Remand—that is, the improper removal of the worker's compensation claim is “any defect other than lack of subject matter jurisdiction,” such as a procedural defect, Formosa's objection to removal is indeed untimely and would be considered waived. However, if the basis of remand is a lack of subject matter jurisdiction, which cannot be waived, the 30 day deadline is irrelevant and the claim must be remanded.

The Second, Fourth, Fifth, Eighth, and Ninth Circuits have held that the wrongful removal of a case in violation of an anti-removal provision is procedural in nature and does not create a substantive jurisdictional defect. These courts have held that, under § 1447, such objections to removal are waived if not made within thirty days of removal, and the district court may keep the case as long as subject matter jurisdiction otherwise exists. See Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025 (8th Cir.2006) (implicitly holding that § 1445(c) is not jurisdictional and stating that plaintiff's attempt to remand under this provision was waived when she did not timely move for remand in district court); Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411 (2d Cir.2004), cert. dismissed, KFC U.S. Props., Inc. v. Williams, 544 U.S. 1012, 125 S.Ct. 1967, 161 L.Ed.2d 795 (2005) (noting “if removal was statutorily improper, a party opposing removal must move to remand within the 30 day limitation or the objection will be forfeited”); Vasquez v. N. County Transit Dist., 292 F.3d 1049, 1062 (9th Cir.2002) (in case originally filed in district court, noting that, when § 1445(c) does apply, “its bar against removal is nonjurisdictional and may be waived”); Wiley v. United Parcel Service, 11 Fed.Appx. 176 (4th Cir.2001) (per curiam) (“[A] party seeking to invoke § 1445(c) must object to removal within thirty days after the filing of a notice of removal.”); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1117 (5th Cir.1998) (“[A] plaintiff must make a motion to remand based on the wrongful removal of a state worker's compensation claim within thirty days after notice of removal or the plaintiff waives the opportunity to move for remand.”).

However, the Eleventh Circuit has held that federal courts lack subject matter jurisdiction over removed worker's compensation claims. Reed v. Heil Co., 206 F.3d 1055 (11th Cir.2000); New v. Sports & Recreation, Inc., 114 F.3d 1092, 1097 (11th Cir.1997) (“Section 1445(c) is a jurisdictional-based limitation on the district court's removal power”). In Reed, an employee sued his employer in state court for retaliatory discharge under a state statute and the ADA. Id. at 1056–57. The defendant employer removed the case to federal court, which granted summary judgment for the defendant on all claims. Id. at 1057. The Eleventh Circuit held that the retaliation claim fell under the class of nonremovable claims in § 1445(c), and that the district court therefore lacked subject matter jurisdiction over the retaliation claim. Id. at 1061. Accordingly, the court reversed the grant of summary judgment on the retaliation claim and remanded it to state court. Id. at 1063. However, the court affirmed the grant of summary judgment on the ADA claim. Id.

Further, in an unpublished per...