Harris v. JLG Indus.
| Decision Date | 11 January 2016 |
| Docket Number | CIVIL ACTION NO.15-00365-KD-B |
| Parties | DEMETRIUS HARRIS Plaintiff, v. JLG INDUSTRIES, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
This matter, which was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), is before the Court on Plaintiff's Motion to Remand to State Court (Doc. 6) and Defendant JLG Industries' Motion to Strike (Doc. 17). Upon review of the motions, supporting and opposing briefs and materials, the undersigned recommends that the motions be denied.
Plaintiff Harris filed suit in the Circuit Court of Mobile County, Alabama on July 23, 2014 for injuries he sustained while working as a sandblaster/painter in Coden, Alabama on or about August 11, 2012. (Doc. 1-1 at 3-5). According to Harris, he was performing sandblaster/painter duties for Rodriguez Boat Builders, Inc. (hereafter "Rodriguez Boat") at its Coden facility when a coworker ran over him with a forklift manufactured by JLG Industries, Inc. (Id.). Harris named as Defendants JLG Industries, Inc., Marty McClure and April Rodriquez. He contends that the forklift, which was manufactured by JLG Industries, Inc. was defective and unreasonably dangerous. He further alleges that Defendants McClure and Rodriquez acted willfully, wantonly, recklessly and/or negligently in failing to maintain the safety features on the forklift, and failing to alert him concerning the lack of safety features. Harris avers that he sustained injuries to his left ankle and foot, was diagnosed with left Achilles open avulsion fracture, and required surgery. (Id. at 4). Harris requests punitive damages, compensatory damages, interest and court costs, and any "other relief that the Court may deem just and proper" against all Defendants. (Id. at 10, 13).
Defendant JLG Industries, Inc. ("JLG") removed the action to this Court on July 23, 2015. (Doc. 1). In the Notice of Removal, JLG asserts the existence of diversity jurisdiction pursuant to 28 U.S.C. § 1441(a). According to JLG, Plaintiff Harris is a citizen of Alabama, and JLG is a Pennsylvania corporation with its principal place of business in Pennsylvania. (Id. at 4). JLG contends that the citizenship of Defendants McClure and Rodriquez, who are both alleged to be resident citizens of Alabama, should be disregarded because Harris has settled his claims against these Defendants. (Id.) JLG contends that another reason for disregarding the Alabamacitizenship of McClure and Rodriquez is that they have been improperly joined in this action. JLG avers that Harris requested and received job benefits as an employee of Rodriguez Boat for his injuries pursuant to the Longshore Harbor Compensation Act ("LHWCA"); thus, he is precluded from suing McClure and Rodriquez, who were both employed by Rodriquez Boat at the time Harris sustained his injuries. (Id. at 7-12).
With respect to the amount in controversy, JLG asserts that while Harris has not requested a specific amount, it is clear that his alleged injuries will exceed $75,000 given that Harris has already required one surgery on his ankle, and that his attorney represented at a status conference in state court that there is a subrogation lien exceeding $100,000 for medical and other benefits already paid to Harris, and that his doctors have recommended that Harris undergo a second surgery in the near future. (Id. at 4-7). JLG thus contends that the amount in controversy exceeds the jurisdictional threshold and that there is complete diversity of citizenship. Therefore, the case was properly removed. JLG also asserts that the removal is timely because it was brought within one year of the filing of Harris' state lawsuit, and within 30 days of JLG ascertaining that the case was removable. (Id. at 2-3). JLG avers that during a status conference in state court on July 17, 2015, JLG first learned of Harris' settlement with McClure and Rodriguez. (Id.)
Harris filed a Motion to Remand to State Court on August 21, 2015. (Doc. 6). In his motion, Harris argues that removal is improper because JLG has not asserted nor produced any evidence that the individual Defendants, namely McClure and Rodriguez, consented to the removal. (Id. at 2). Harris further asserts that as of the date that this case was removed, namely July 23, 2015, no settlement agreement had been finalized between him and the individual Defendants; thus, McClure and Rodriguez are still parties to this action, and their status as Alabama residents means that complete diversity is lacking. (Id. at 3). Harris also contends that JLG's fraudulent joinder argument is without merit because at the time of the accident, Harris was employed by Peyton Boat Repair, Inc. (hereinafter "Peyton"), as opposed to JLG. Harris asserts that while Peyton loaned him to Rodriguez Boat to work at the Rodriguez facility, on the date of the accident, he remained a Peyton employee. Harris avers that because McClure and Rodriguez were not his co-workers, his claims against them are not barred. Thus, they have not been fraudulently joined, and their presence in the lawsuit means that complete diversity is lacking. (Id. at 4-5).
In its response in opposition to Harris' Motion to Remand (Doc. 13), JLG argues that it is undisputed that Harris sought and received benefits from Rodriguez Boat under the LHWCA, and that Harris' admission that on the date of the accident, he was"on loan" or in essence, a borrowed employee, with respect to Rodriguez Boat is sufficient to establish that his claims against individual Defendants Rodriguez and McClure, both employees of Rodriguez Boat, are covered under the LHWCA. (Id. at 3-7). Relying on Rodriguez-Flores v. U.S. Coatings, Inc., 133 So.3d 874 (Ala. 2013), JLG asserts that the LHWCA acts as an absolute bar against co-worker claims except where the employer had a specific intent or desire to injure the employee. According to JLG, individual Defendants Rodriguez and McClure have been fraudulently joined in Harris' lawsuit as the complaint is devoid of any assertion of a specific intent or desire to injure Harris. (Id.) Thus, the citizenship of Defendants Rodriguez and McClure should be disregarded. JLG further asserts that Rodriguez and Harris' consent was not required because they were fraudulently joined, and that in any event, Defendants Rodriguez and McClure did in fact consent through their counsel.
Finally, JLG asserts that the individual Defendants should be realigned as Plaintiffs because their employer Rodriquez Boats has asserted a lien against any proceeds received by Harris in this action based on the LHWCA benefits it paid to and on behalf of Harris, and due to the fact that the individual Defendants paid Harris a nuisance amount to settle this case. (Id. at 7-8).
In Harris' reply (Doc. 15), he argues, for the first time, that JLG's removal comes too late or too early. According to Harris, JLG was on notice regarding the LHWCA benefits paid to him as early as December 2014, when the settlement order was tendered to JLG's counsel in discovery; however, JLG did not seek to remove this case based on the LHWCA benefits until seven (7) months later. (Id. at 3-4). Harris further asserts that to the extent that JLG sought to remove this case based on his settlement with the individual Defendants, JLG did not come into possession of any 'other paper' justifying removal as required by 28 U.S.C. § 1446(b), until two (2) months after the motion was filed. Thus, the removal should be denied because it came too soon. (Id. at 6-7). Harris also argues that the individual Defendants did not file a motion to dismiss the claims against them; thus, JLG lacks standing to attack Harris' claims against Rodriguez and McClure. (Id. at 5).
JLG filed a Motion to Strike Harris' reply, and argues that Harris' newly raised arguments attacking the timeliness of the removal should not be allowed. (Doc. 17). According to JLG, Harris failed to raise his timeliness argument within 30 days of JLG's Notice of Removal; thus, his argument is untimely under Section 1447(c). JLG also argues that Harris should not be permitted to raise new arguments in his reply. (Id.) In the alternative, JLG requested an opportunity to file a sur-reply toaddress the timeliness arguments. (Id.) JLG's request to file a sur-reply was granted, and in its sur-reply (Doc. 23), JLG argued that Harris' timeliness arguments have been waived because Harris failed to include them in his Motion to Remand. JLG also asserted that circuit precedent establishes that arguments raised for the first time in a reply are deemed waived. JLG further asserted that even if the Court concludes that Harris did not waive the timeliness arguments, the arguments should nevertheless be rejected because JLG filed its Notice of Removal within thirty days of receiving the Department of Labor's Order approving Rodriguez Boat and Harris' settlement under LHWCA. (Id.) JLG also avers that its Notice of Removal was filed within thirty days of receiving written confirmation from counsel for the individual Defendants that a settlement with Harris had been reached. Finally, JLG argues that a defendant's right to remove an action does not hinge on the actions of improperly joined state defendants. (Id.)
In his response to JLG's Motion to Strike, Harris argues that in his Motion to Remand, he preserved all of his arguments relating to the procedural and subject matter deficiencies with respect to JLG's removal. (Doc. 22) He further contends that he did not raise any new issues in his reply, but instead, simply pointed out the procedural problems with the documents that JLG seeks to rely upon in support of its Notice of Removal. (Id.).
The sum of these pleadings is now before the Court for analysis.
A removing defendant has the burden of proving proper federal jurisdiction. See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290,...
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