Gasper v. Swick & Son Maint. Specialists, Inc., CIVIL ACTION NO. 1:20cv212
| Decision Date | 28 April 2021 |
| Docket Number | CIVIL ACTION NO. 1:20cv212 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | KIMBERLY I. GASPER and ANDY FOSTER, husband, Plaintiffs, v. SWICK & SON MAINTENANCE SPECIALISTS, INC., individually doing business as Chesapeake Mechanical & Coatings, CONWAY-PHILLIPS HOLDINGS, LLC, PROCESS COMBUSTION CORPORATION, WEYERHAEUSER COMPANY, WEYERHAEUSER NR COMPANY, CHRIS CORDER, JOHN DOES 1-5, and XYZ CORPORATIONS 1-5, Defendants. |
(KLEEH)
Pending before the Court is a Motion to Remand filed by Plaintiffs Kimberly I. Gasper and Andy Foster. ECF No. 15. Plaintiffs filed the Motion to Remand pursuant to 28 U.S.C. §§ 1441 and 1446 and move to remand the instant action to the Circuit Court of Harrison County, West Virginia, alleging that Defendants have failed to satisfy its burden of proving the diversity jurisdiction requirement under 28 U.S.C. § 1441. Defendant Swick & Son Maintenance Specialists, Inc., d/b/a Chesapeake Mechanical & Coatings ("Chesapeake") filed a Notice of Removal to remove the matter from the Circuit Court of Harrison County, West Virginia, to the United States District Court for the Northern District of West Virginia alleging against Plaintiffs fraudulent joinder of the individual defendant, Chris Corder. For the reasons discussed herein, the Motion to Remand is GRANTED. [ECF No. 15].
Plaintiffs Kimberly I. Gasper and Andy Foster ("Plaintiffs") filed a Complaint in the Circuit Court of Harrison County, West Virginia, on June 26, 2020. ECF No. 1-1. Plaintiffs' Complaint was served on Defendant Chris Corder on June 27, 2020, by certified mail. ECF No. 1-1. Plaintiff's Complaint was served on Defendant Swick & Son Maintenance Specialist, Inc., individually doing business as Chesapeake Mechanical & Coatings, on July 31, 2020, by certified mail. ECF No. 1-3. The West Virginia Secretary of State effectuated service of Plaintiffs' Complaint on Defendants Weyerhaeuser Company, Process Combustion Corporation, Conway-Phillips Holdings, LLC, and Weyerhaeuser NR Company on August 3, 2020. Id. Defendant Chris Corder moved to dismiss the action pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure on July 28, 2020. ECF No. 1-2. Chesapeake timely filed the Notice of Removal pursuant to 28 U.S.C. § 1446(b)(2)(B) on August 25, 2020. ECF No. 1.
When an action is removed from state court, the district court must determine whether it has original jurisdiction over theplaintiff's claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Id. (citations omitted). "Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citation omitted).
Federal courts have original jurisdiction over two types of cases: those involving federal questions under 28 U.S.C. § 1331 and those involving diversity of citizenship under 28 U.S.C. § 1332. When a party seeks to remove a case based on diversity of citizenship, that party bears the burden of establishing that "the matter 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. Generally, § 1332 requires complete diversity among parties, which means that the citizenship of all defendants must be different from the citizenship of all plaintiffs. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). For purposes of diversity of citizenship jurisdiction under 28 U.S.C. § 1332, "an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized." 28 U.S.C. § 1332(d)(10).
It is required that an action "be fit for federal adjudication at the time the removal petition is filed." See 28 U.S.C. § 1441(a); Moffitt v. Residential Funding Co., LLC, 604 F.3d 156, 159 (4th Cir. 2010) (quoting Caterpillar Inc., 519 U.S. at 73). If the complaint does not contain a specific amount in controversy and the defendant files a notice of removal, "the defendant bears the burden of proving that the claim meets the requisite jurisdictional amount," and "the court may consider the entire record" to determine whether that burden is met. Elliott v. Tractor Supply Co., No. 5:14CV88, 2014 WL 4187691, at *2 (N.D.W. Va. Aug. 21, 2014) (citation omitted). If the defendant sufficiently proves by a preponderance of the evidence that the amount in controversy exceeds $75,000 and the parties are diverse, then removal is proper. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87-88 (2014). "[A]bsent a binding stipulation signed by [the plaintiff] that he will neither seek nor accept damages in excess of $75,000, the Court must independently assess whether the defendants [have] proven by a preponderance of the evidence that [the plaintiff's] complaint seeks damages in excess of $75,000." Virden v. Altria Group, Inc., 304 F.Supp.2d 832, 947 (N.D.W. Va. 2004). Where diversity jurisdiction is doubtful, remand is required. Maryland Stadium Authority v. Ellerbe Becket Incorporated, 407 F.3d 225, 260 (4th Cir. 2005).
Plaintiffs, as masters of the Complaint, determine who to sue and for what to sue the chosen Defendants. See Lincoln Property Co. v. Roche, 546 U.S. 81, 91 (2005) () (quoting 16 J. Moore et al., Moore's Federal Practice § 107.14[2][c], p. 107-67 (3d ed. 2005)).
Complete diversity exists between the parties when "no party shares common citizenship with any party on the other side." Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). The fraudulent joinder doctrine is an exception to the complete diversity requirement, in that it "permits removal when a non-diverse party is (or has been) a defendant in the case." Id. In essence, a defendant may remove a case on the basis of diversity jurisdiction even if a non-diverse defendant is a party to the case, so long as the removing party can prove that the non-diverse defendant was fraudulently joined, by demonstrating either (1) "outright fraud in the plaintiff's pleading of jurisdictional facts" or (2) that "there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court." Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (internal citation omitted) (emphasis omitted). Fraudulent joinder "effectively permits a district court to disregard, forjurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction." Mayes, 198 F.3d at 461 (internal citation omitted).
In the United States Court of Appeals for the Fourth Circuit, "fraudulent joinder claims are subject to a rather black-and-white analysis [and] [a]ny shades of grey are resolved in favor of remand." Hartman v. Caraco Pharmaceutical Laboratories, Ltd., 789 F.Supp.2d 701, 703 (S.D.W. Va. 2011). A removing defendant bears a heavy burden of establishing that the non-diverse defendant has been fraudulently joined. Mayes, 198 F.3d at 464. Under the "no possibility" standard, a removing defendant cannot succeed if there is a "glimmer of hope" that plaintiff's claim against a non-diverse defendant will succeed. Id. at 466.
Plaintiffs Kimberly I. Gasper and Andy Foster, wife and husband, are residents and citizens of Pearl River County, Mississippi. Compl., ECF No. 1-1, ¶ 1. Defendant Chesapeake, a corporation duly organized and existing under the laws of the state of Maryland, with a principal place of business in the state of Maryland, is qualified to do and is doing business in the State of West Virginia. Id. at ¶ 2, ECF No. 1, ¶ 16(b). Defendant Conway-Phillips Holding, LLC, ("Conway-Phillips"), is a limited liability company organized and existing under the laws of the State of West Virginia; however, a limited liability company is considered a citizen of every jurisdiction of which any member is a citizen. Compl., ECF No. 1-1, ¶ 3, Central W. Va. Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011). Because the sole member of Conway-Phillips is an individual who is a resident of the state of Pennsylvania, Conway-Phillips is a citizen of the state of Pennsylvania. ECF No. 1, ¶ 16(c)-(e). Defendant Process Combustion Corporation ("Process Combustion"), is a legally organized corporation and existing under the laws of the state of Pennsylvania, has done business in the state of West Virginia, and is therefore subject to jurisdiction pursuant to W. Va. Code § 31D-15-1510. Compl., ECF No. 1-1, ¶ 4. Defendant Weyerhaeuser Company ("Weyerhaeuser") is a legally organized foreign corporation with residency in the state of Washington, and doing business throughout the state of West Virginia, and within the county of Harrison. Id. at ¶ 5, ECF No. 1, ¶ 16(g). Defendant Weyerhaeuser NR Company ("Weyerhaeuser NR"), a wholly owned subsidiary of Defendant Weyerhaeuser, is a legally organized foreign corporation doing business throughout the state of West Virginia, and within the county of Harrison. Compl., ECF No. 1-1, ¶¶ 6-7. Defendant Chris Corder ("Defendant Corder") is a resident and citizen of Upshur County, West Virginia, and was an employee,representative, or agent of Defendants Weyerhaeuser and Weyerhaeuser NR (collectively "Weyerhaeuser defendants"). Compl., ECF No. 1-1, ¶¶ 8-9.
Plaintiffs allege...
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