Hawkins v. Cottrell Inc.

• Decision Date: 19 May 2011
• Docket Number: Civil Action No. 2:10–CV–00268–WCO.
• Citation: 785 F.Supp.2d 1361
• Parties: Vincent HAWKINS and Tammy Hawkins, Plaintiffs,v.COTTRELL, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

785 F.Supp.2d 1361

Vincent HAWKINS and Tammy Hawkins, Plaintiffs,
v.
COTTRELL, INC., Defendant.

Civil Action No. 2:10–CV–00268–WCO.

United States District Court, N.D. Georgia, Gainesville Division.

May 19, 2011.

[785 F.Supp.2d 1363]

Darl Champion, Michael J. Warshauer, Warshauer Law Group PC, Atlanta, GA, for Plaintiffs.Amy Lorenz–Moser, Daniel J. Carpenter, Armstrong Teasdale, LLP, St. Louis, MO, Abbott S. Hayes, Jr., Hulsey, Oliver & Mahar, Gainesville, GA, for Defendants.ORDER WILLIAM C. O'KELLEY, Senior District Judge.

The captioned case is before the court for consideration of plaintiff's “Motion to Remand” [6].

[785 F.Supp.2d 1364]

I. Factual and Procedural Background

This case was originally filed on December 9, 2010, in Hall County Superior Court, docketed as case number 2010–CV–4162A. The complaint alleged that plaintiff Vincent Hawkins had suffered a number of permanent injuries caused by the defective design of defendant's car haulers. Additionally, plaintiffs asserted a loss of consortium claim and a punitive damages claim. The complaint did not plead a specified amount of damages.

On December 14, 2010, defendant filed a notice of removal in this court seeking to remove the action based on diversity of citizenship. At the time of removal, defendant had not yet been served in the state action.¹ Plaintiffs are both Tennessee residents and defendant is a Georgia corporation with its principal place of business located in Hall County, Georgia. Thus, defendant is a forum defendant, a resident of the state where the action was filed. Defendant also contended that the $75,000 amount in controversy requirement was met.

Plaintiffs filed the pending motion to remand on January 11, 2011, arguing that removal was improper for two reasons. First, plaintiffs claim a forum defendant is never entitled to remove an action based on diversity of citizenship. Plaintiffs also contend that defendant has not met its burden of establishing the amount in controversy.

II. Removal by an Unserved Forum Defendant

Under the current removal statute, 28 U.S.C. § 1441, “any 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.” Id. A federal court has subject-matter jurisdiction over a diversity of citizenship case pursuant to 28 U.S.C. § 1332, but not every diversity case is removable. A non-federal question case “shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b) (emphasis added).² The application of this rule, the so-called “forum defendant” restriction, is the subject of this litigation.³

[785 F.Supp.2d 1365]

A. The Rules of Statutory Construction

Defendant contends that the forum defendant rule contained in § 1441(b) only applies if the forum defendant has been both joined and served. Until both of these conditions are satisfied, defendant claims that the plain meaning of the statutory text permits a forum defendant to remove an action based on diversity of citizenship. Plaintiffs do not directly assert that the statute is ambiguous, and apparently concede that the plain meaning favors defendant's interpretation. Plaintiffs argue that remand is appropriate because defendant's reading of the statute produces absurd results.

This disagreement turns on statutory construction. “The first rule in statutory construction is to determine whether the ‘language at issue has a plain and unambiguous meaning with regard to that particular dispute.’ ” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir.2003) (quoting United States v. Fisher, 289 F.3d 1329, 1337–38 (11th Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 903, 154 L.Ed.2d 786 (2003)). A court must not “start from the premise that [the statutory] language is imprecise” but must instead “assume that in drafting legislation, Congress said what it meant.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir.2001) (quotation omitted).

The Eleventh Circuit has emphasized that “[w]hen the import of the words Congress has used is clear ... we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.” Harris v. Garner, 216 F.3d 970, 976 (11th Cir.2000) (en banc). As the Supreme Court has “repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.” Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).⁴ For this reason, “ambiguity in statutory language [must] be shown before a court delves into legislative history.” CBS, 245 F.3d at 1224 (emphasis original).

The court's inquiry is thus initially limited to determining a statute's plain meaning.⁵ If the statute's plain meaning is clear, the court is bound to give effect to its language. Occasionally, however, a statute may be unclear or imprecise, making its plain meaning difficult to discern. “[W]here the statutory language is not entirely transparent,” a court must turn to the other “tools at its disposal,” namely “the canons of construction.” CBS, 245 F.3d at 1225.

[785 F.Supp.2d 1366]

The traditional canons of construction include several principles applicable here. A court does “not look at one word or one provision [of a statute] in isolation, but rather look[s] to the statutory scheme for clarification and contextual reference.” United States v. McLemore, 28 F.3d 1160, 1162 (11th Cir.1994) (citing Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)). “Statutory construction ... is a holistic endeavor” and “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” United Sav. Ass'n v. Timbers of Inwood Forest Assoc., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). Additionally, “[a] statute should be interpreted so that no words shall be discarded as meaningless, redundant, or mere surplusage.” United States v. DBB, Inc., 180 F.3d 1277, 1285 (11th Cir.1999) (quotation omitted).

A court is permitted to look beyond the plain meaning of a statute to extrinsic materials in only two circumstances: (1) the statute's language is ambiguous; or (2) applying the statute's plain meaning would lead to an absurd result. Id. at 1281.⁶ The first of these circumstances, ambiguity in the statute's language, “is really just a restatement of the plainness requirement of the plain meaning rule.” CBS, 245 F.3d at 1227. In other words, “[i]f the statutory language is ambiguous, its meaning is not plain.” Id.

The second exception, known as the “absurd results” doctrine, applies when “giving the words of a statute their plain and ordinary meaning produces a result that is not just unwise but is clearly absurd.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir.1997). For this exception to apply, however, the result produced must be “truly absurd.” Id. This limitation ensures that use of this doctrine is rare. Otherwise, “clearly expressed legislative decisions” are at risk of being replaced by “the policy predilections of judges.” Id.⁷

B. Relevant Decisions of Other Courts

There is no Eleventh Circuit decision that addresses whether § 1441(b) permits

[785 F.Supp.2d 1367]

an unserved forum defendant to remove a case based on diversity of citizenship. Similarly, no persuasive authority exists in any other federal circuit court of appeals. This dearth of authority is the result of the restriction on appellate review of remand orders contained in 28 U.S.C. § 1447(d). Holmstrom v. Peterson, 492 F.3d 833, 835–36 (7th Cir.2007).⁸

The lack of appellate opinions obscures the fact that the federal district courts have been inundated with a flood of cases addressing this issue, although this is apparently the first such case in the Northern District of Georgia. The courts faced with this question have reached differing results. Due to the divergent authority and because this is an issue of first impression in this district, the court will undertake a comprehensive analysis.

The split of authority broadly parallels the parties' respective positions. The cases adopting defendant's general argument hold that the text of the removal statute is not ambiguous. Since there is no ambiguity, there is no need to resort to the legislative history. The plain meaning of the statute permits an unserved forum defendant to remove an action based on diversity. Moreover, this result is not absurd.

An exemplar of a decision in this vein is Yocham v. Novartis Pharmaceuticals Corp., No. 07–1810–JBS, 2007 WL 2318493, at *1–2 (D.N.J. Aug. 13, 2007), which is factually analogous to this case. In Yocham, a Texas plaintiff filed suit against a New Jersey defendant in New Jersey superior court. Prior to service, the New Jersey defendant filed a notice of removal premised on diversity. The district court ruled that the case was properly removed.

As support for this conclusion, the Yocham court cited several other opinions from the District of New Jersey. See Thomson v. Novartis Pharms. Corp., No. 06–6280–JBS, 2007 WL 1521138, at *4, 2007 U.S. Dist. LEXIS 37990, at *15 (D.N.J. May 22, 2007) (Simandle, J.) (allowing removal by a forum defendant where all defendants were unserved New Jersey residents and plaintiffs were Georgia residents); Frick v. Novartis Pharms. Corp., No. 05–5429–DRD, 2006 WL 454360, at *2–3, 2006 U.S. Dist. LEXIS 9178, at *6–7 (D.N.J. Feb. 22, 2006) (Debevoise, J.) (relying on “literal language of the statute” to allow removal by single unserved forum defendant).⁹ The conclusion of all three decisions is that § 1441(b) is not ambiguous. The statute's plain meaning prevents removal by a forum...