Greer v. Skilcraft

• Decision Date: 31 January 1989
• Docket Number: CV 88-P-2188-S,No. CV 88-P-2152-S,CV 88-P-2192-S.,CV 88-P-2152-S
• Citation: 704 F. Supp. 1570
• Parties: Tamara L. GREER, etc., Plaintiff, v. SKILCRAFT, et al., Defendants. John S. KIRKPATRICK, Plaintiff, v. AMERICAN MOTORS CORP., et al., Defendants. Ashley Victoria Barnett, etc., Plaintiff, v. MTD PRODUCTS, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

704 F. Supp. 1570

Tamara L. GREER, etc., Plaintiff, v. SKILCRAFT, et al., Defendants.

John S. KIRKPATRICK, Plaintiff, v. AMERICAN MOTORS CORP., et al., Defendants.

Ashley Victoria Barnett, etc., Plaintiff, v. MTD PRODUCTS, INC., Defendant.

Nos. CV 88-P-2152-S, CV 88-P-2188-S, CV 88-P-2192-S.

United States District Court, N.D. Alabama, S.D.

January 31, 1989.

Hillard R. Reddick, Jr., L. Andrew Hollis, Jr., John A. Taber, Hardin and Taber, Birmingham, Ala., Harvey B. Morris, Cleary, Lee, Morris, Evans & Rowe, Huntsville, Ala., for Tamara L. Greer by and through William B. Greer, Tina Greer.

James C. King, Wilson & King, Jasper, Ala., Jerry K. Selman, Selman, Beaird & Selman, Jasper, Ala., for John S. Kirkpatrick.

Edgar M. Elliott, IV, Rives & Peterson, Birmingham, Ala., for Skilcraft, Sears, Roebuck & Co., Inc., Dr. Winston Guthrie, and Wife Barbara, Scott Guthrie, et al.

William R. Lucas, Jr., Sid J. Trant, Bradley, Arant, Rose & Whitt, Birmingham, Ala., for American Motors Corp., American Motors Sales Corp., Jeep Corp., et al.

Roger D. Burton, Jaffe, Burton & Digiorgio, Birmingham, Ala., for Ashley Victoria Barnett, by and through Teresa Myer's Barnett.

James W. Gewin, Joseph S. Bird, Bradley, Arant, Rose & White, Birmingham, Ala., for Columbia Mfg. Co., Inc., et al.

OPINION

POINTER, Chief Judge.

More than 150 civil actions were removed to this court on December 15, 16, and 19, 1988. Most were cases with fictitious parties that had been pending in state court for months or even years, and were being removed on the basis of Section 1016 of the Judicial Improvements and Access to Justice Act, P.L. 100-702 (the "Act"). This flurry of activity resulted from the defendants' belief that this Section — which in part provides that the citizenship of defendants sued under fictitious names is to be disregarded for purposes of removal — became effective on November 19, 1988, applied to cases pending in state court on that date, and might be available as a basis for removal of pending cases for a period of only 30 days. Recognizing that under another provision of the Section they too might have only 30 days to act, plaintiffs in many of the cases promptly filed motions to remand.

For two reasons it is desirable for the basic issues to be considered and resolved jointly by all of the judges of this court to whom civil cases are regularly assigned.¹ First, there should, if possible, be uniformity within the court in ruling on these common and potentially recurring questions. Second, consideration by several judges is desirable since, by virtue of 28 U.S.C. § 1447(d), orders remanding a case to state court are not ordinarily subject to review by an appellate court.

To facilitate a joint ruling, many of the briefs filed in the various cases have been exchanged among the various judges of the court. In addition, on January 6, 1989, several judges of this court heard the oral arguments regarding remand of the cases assigned to the undersigned.

I. Facts of the Cases.

In order to evaluate the issues in differing factual contexts, the court has selected three cases to address specifically in this opinion. The court will consider, however, not only the arguments made by parties in these cases, but also alternative or additional arguments made by counsel in other cases. The pertinent facts of the three cases are as follows:

Greer v. Skilcraft (CV 88-P-2152-S): This action, based upon the explosion of a toy chemistry set, was commenced in state court on January 11, 1984. Plaintiffs are Alabama citizens. Originally named as defendants were the manufacturer and seller of the set (neither a citizen of Alabama); the parents of the child to whom the toy had been entrusted, and the child (all citizens of Alabama); and numerous fictitious defendants. The named defendants were served in 1984. The Alabama defendants were voluntarily dismissed on January 30, 1986, pursuant to a settlement. The case was scheduled for trial in state court for January 9, 1989, but was removed by the remaining named defendants on December 16, 1988. On December 20, 1988, plaintiffs moved to remand. There has been no dismissal or substitution of the fictitious parties.

Kirkpatrick v. American Motors Corp. (CV 88-P-2188-S): This action, based upon a motor vehicle accident, was commenced in state court on November 30, 1987. Plaintiff is an Alabama citizen. Originally named as defendants were the manufacturers and designers of the motor vehicle (neither a citizen of Alabama) and several fictitious parties described as others who manufactured, designed or assembled the vehicle or were responsible for its allegedly defective condition. The named defendants were served in December 1987. The case was removed by the only named defendants on December 16, 1988. On January 11, 1989, plaintiff moved to remand. There has been no dismissal or substitution of the fictitious parties, but the named defendants assert that, prior to November 19, 1988, they could have removed the case because they had determined there were no persons fitting the description of the fictitious parties who were citizens of Alabama.

Barnett v. MTD Products, Inc. (CV 88-P-2192-S): This action, based upon injuries sustained in a motorbike accident, was commenced in state court on August 10, 1984. Plaintiff is an Alabama citizen. Originally named as defendants were the manufacturer of the motorbike (not a citizen of Alabama) and numerous fictitious defendants. The named defendant was not served until March 1988. The case was removed by the only named defendant on December 16, 1988. On January 12, 1989, plaintiff moved to remand. There has been no dismissal or substitution of the fictitious parties.

II. Effective Date.

The Act specifies an effective date for many of its titles and particular sections, but not for Section 1016, for the title in which Section 1016 is found (Title X), or for the Act as a whole. Therefore, the effective date of Section 1016 is the date the Act was enacted, i.e., November 19, 1988, the day it was signed by the President. See, e.g., United States v. Clizer, 464 F.2d 121 (9th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d 673 (1972). This is the one proposition on which all parties in these cases appear to agree.

III. Application to Pending Cases.

The parties disagree, however, as to the extent various parts of Section 1016 apply to cases pending in state court on the effective date of the Act, a question not explicitly addressed in the Section or in the sparse legislative history. Some of the plaintiffs contend that Section 1016(a) — providing that the citizenship of fictitious defendants shall be disregarded — applies only to cases filed after November 19, 1988. Defendants potentially affected by Section 1016(b)(2)(B) — providing that a case may not be removed on the basis of diversity-of-citizenship jurisdiction more than one year after commencement of the action — contend that this provision does not apply to cases pending on November 19, 1988, or that this provision does not apply to cases made removable for the first time by Section 1016(a). The primary arguments are directed towards interpretation of the legislation, rather than constitutionality of retroactive application.²

A. General Principles.

The basic rule is that courts should apply laws in effect at the time they are called upon to render decisions unless "manifest injustice" would result. Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) (upholding award of attorneys' fees based on legislation enacted during pendency of appeal). According to Bradley, 416 U.S. at 717, 94 S.Ct. at 2019, the assessment of manifest injustice centers on three factors: (a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights. In explaining the second factor, the Bradley court referred to cases in which application of legislation to pending cases would have deprived a party of a "right that had matured or become unconditional." 416 U.S. at 720, 94 S.Ct. at 2020.³

A somewhat different formulation of the rule, apparently intended to broaden retrospective application, has been adopted with respect to procedural legislation: such changes are to be applied to pending litigation "absent some contrary indications by the Congress and absent any procedural prejudice to either party." Denver & Rio Grande Western Railroad Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 563, 87 S.Ct. 1746, 1750, 18 L.Ed.2d 954 (1967) (upholding judgment rendered in a district where, but for intervening legislation, venue would have been improper). The cases cited by the Supreme Court for this principle indicate that "procedural prejudice" should be given a rather narrow meaning: United States v. Alabama, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960) (allowing action to proceed against State as a defendant on basis of legislation passed after suit was filed); Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949) (allowing transfer of FELA action on basis of legislation enacted after case filed); American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189 (1921) (applying to case on appeal new legislation regarding injunctions in labor disputes).

The Eleventh Circuit has noted that the court need not find specific language in the statute or legislative history before applying new legislation to pending cases:

In general, it is unnecessary to find affirmative support in a statute or its legislative history for applying it to pending cases. A statute will be assumed to apply to cases pending at the time of its passage unless there is a "clear indication" that it is not to apply.

United States v. Marengo County Comm'n, 731 F.2d 1546, 1553 (11th Cir.), cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984) (emphasis in original).

The...