Freeman v. Bragunier Masonry Contractors, Inc.

• Decision Date: 14 June 1996
• Docket Number: No. AMD 96-1140.,AMD 96-1140.
• Citation: 928 F. Supp. 611
• Parties: John E. FREEMAN, Plaintiff, v. BRAGUNIER MASONRY CONTRACTORS, INC., et al., Defendants.
• Court: U.S. District Court — District of Maryland

928 F. Supp. 611

John E. FREEMAN, Plaintiff, v. BRAGUNIER MASONRY CONTRACTORS, INC., et al., Defendants.

No. AMD 96-1140.

United States District Court, D. Maryland.

June 14, 1996.

William B. Whiteford, Anne Talbot Brennan, Thomas J. Whiteford, Whiteford, Taylor & Preston, L.L.P., Towson, MD, for plaintiff.

Terrence M.R. Zic, Wright, Robinson, Osthimer & Tatum, Washington, D.C., for defendant Sverdrup Facilities, Inc.

Joel M. Savits, Jordan, Coyne & Savits, Washington, D.C., for defendant Lynchburg Steel & Specialty Company.

Richard T. Sampson, Semmes, Bowen & Semmes, P.C., Baltimore, MD, for defendant Bragunier Masonry Contractors, Inc.

MEMORANDUM

DAVIS, District Judge.

This personal injury action arises out of an accident that occurred during the construction of a federal courthouse in Alexandria, Virginia. The plaintiff, John E. Freeman, filed this suit in the Circuit Court for Baltimore City, Maryland, alleging common law damage claims on negligence and strict liability theories against Bragunier Masonry Contractors, Inc., Lynchburg Steel and Specialty Company, and Sverdrup Facilities, Inc., all of which were contractors employed on the courthouse project. Sverdrup timely removed the case to this Court on the basis that, but for the fraudulent joinder of Bragunier, there was complete diversity between the parties, and that removal jurisdiction was therefore proper under 28 U.S.C. §§ 1332 and 1441(b).

Pending before the Court are several motions: Sverdrup's motion to dismiss, Freeman's motion to remand, and Lynchburg's motion for summary judgment. The gravamen of the issues presented in all these motions is whether the law applicable in this case is that of the Commonwealth of Virginia, where the accident occurred, or that of the State of Maryland, the domicile of the plaintiff and defendant Bragunier. This choice of law issue, however, need not be addressed here, for the Court's jurisdictional inquiry, necessitated by the motion to remand, reveals that Sverdrup has failed to satisfy its burden to show that Freeman fraudulently joined Bragunier in an effort to defeat diversity jurisdiction. Thus, the Court shall grant Freeman's motion to remand on the basis that removal was demonstrably improvident. Sverdrup's motion to dismiss and Lynchburg's motion for summary judgment shall not be reached, and those motions remain open for determination in state court.

To be sure, the choice of law issue largely overlaps the jurisdictional issue. In other words, if Virginia law applies, then plaintiff does not have a viable claim against any defendant by virtue of an immunity granted by the Virginia workers' compensation scheme. On the other hand, if Maryland law applies, then it seems equally clear that Freeman has alleged viable common law claims, based upon joint and several liability, at least against Bragunier and Sverdrup.¹ Although in this Court's view, the defendants appear to have the more persuasive argument (that Virginia law and not Maryland law should apply), the correct answer to the question of which state's law should apply is not so clearly dictated by Maryland caselaw that Freeman's reliance upon Maryland law can reasonably be called "fraudulent" under the "fraudulent joinder" doctrine. Since the question of which state's law should apply is a fairly debatable question, Sverdrup cannot bootstrap this Court's subject matter jurisdiction via the underlying choice of law question.

Generally, a defendant may remove from state court any civil action over which the federal district court has original jurisdiction. 28...