Hopkins Erecting Co. v. BRIARWOOD APARTMENTS, ETC.
| Decision Date | 10 June 1981 |
| Docket Number | Civ. A. No. 80-38,80-44 and 80-230. |
| Citation | 517 F. Supp. 243 |
| Parties | HOPKINS ERECTING CO., INC., Plaintiff, v. BRIARWOOD APARTMENTS OF LEXINGTON, et al., Defendants. AMERICAN BUILDERS SUPPLY CO., Plaintiff, v. FAIRINGTON APARTMENTS OF LEXINGTON, et al., Defendants. ETHINGTON ELECTRIC, INC., Plaintiff, v. FAIRINGTON APARTMENTS OF LEXINGTON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
W. T. Ingerton, Lexington, Ky., for American Builders Supply Co.
Linda Gosnell, Rosenbaum & Rosenbaum, Lexington, Ky., and Landman & Beatty, Indianapolis, Ind., for Fairington Apartments, Glick, Briarwood Apts. of Lexington, Beatty and GNMA.
C. Edward Hastie, Hastie, Murray & Carter, Lexington, Ky., for Hopkins Erecting Co.
Thomas Meeker, Wyatt, Tarrant & Combs, John M. Longmeyer and Marvin M. Sotsky, Louisville, Ky., for Kentucky Housing Corp.
Stephen A. Watkins, Ogden, Robertson & Marshall, Louisville, Ky., for Tafel Electric & Supply Co. and Louisville Tile Distributors.
Walter C. Cox, Jr., Fowler, Measle & Bell, Lexington, Ky., for Parsons Equipment, Contractors Sales & Rentals, Inc. and Layton, Inc. d/b/a Parsons Equipment.
Stanley M. Saunier, Gess, Mattingly, Saunier & Atchison, Lexington, Ky., for McGrannahan Building & Supply Co. and Winges Co., Inc.
L. Edwin Paulson, Todd & Sherrow, Lexington, Ky., for Lemon Farris.
Joseph H. Miller, Gess, Mattingly, Saunier & Atchison, Lexington, Ky., for Lexington Quarry Co., Inc. and Winges Co., Inc.
Matthew J. Regan, Strother, Oliver & Strother, Lexington, Ky., for Government National Mortgage Association.
Stephen L. Taylor, Hughes, Taylor & Elam, Louisville, Ky., for Ethington Elec. Co., Inc.
Michael W. Kehoe, Newport, Ky., for Rice Electrical Sales, Inc.
Three cases have been removed from the Fayette Circuit Court, Fayette County, Kentucky to this Court, pursuant to 28 U.S.C. Section 1441. This memorandum opinion will address the propriety of removal in each case.
The first action is styled Hopkins Erecting Co., Inc. v. Briarwood Apartments of Lexington, et al., Civil Action No. 80-38 (Briarwood). On May 8, 1981, this Court entered an order denying the pending motions to remand. The Court has decided, sua sponte, to reconsider that order. 28 U.S.C. Section 1447(c). The second case is American Builders Supply Co. v. Fairington Apartments of Lexington, et al., Civil Action No. 80-44 (Fairington I). Motions to remand and for leave to file an amended petition for removal are pending in that case. The final case is Ethington Electric, Inc. v. Fairington Apartments of Lexington, et al., Civil Action No. 80-230 (Fairington II). A motion to remand is pending therein.
I. FACTUAL BACKGROUND
In Briarwood, plaintiff alleges in its complaint that it contracted with and provided to defendant Daggett & Cardinell (Daggett) labor and materials for the construction of Briarwood Apartments of Lexington (Briarwood Apartments). Daggett was a subcontractor of defendant Gene B. Glick Co. (Glick Co.), general contractor for the construction project. Plaintiff ceased to provide labor and materials on or about February 21, 1979, at which time it was owed a sum of money. Within six (6) months thereof, plaintiff executed and filed in the appropriate state office an amended statement and notice of mechanic's and materialman's lien on the real property of Briarwood Apartments. Plaintiff additionally alleges that it provided labor and services to defendant Rice & Jackson (Rice), another subcontractor of defendant Glick Co., for the construction of Briarwood Apartments and has failed to be compensated therefor.
Plaintiff originally prayed for monetary judgments against defendants Rice, Daggett, Glick Co. and Briarwood Apartments alternatively and conjunctively in an amount less than ten thousand dollars ($10,000.00), and that it be adjudged to have a first, prior and superior lien on the real property of Briarwood Apartments and that said property be sold under order of the Court to satisfy the debt, interest and cost owed plaintiff. By agreed order, entered on January 29, 1981, and after removal to this Court, the claims arising out of the Briarwood action between plaintiff and defendant Briarwood Apartments and Glick Co. were dismissed with prejudice.
Plaintiff joined as co-defendants Kentucky Housing Corp., assignee of a mortgage on the real property of Briarwood Apartments, Contractors Sales & Rentals, Inc., Lexington Quarry Co., Inc., Lemon Farris d/b/a Ornamental Iron and Metal Co. and Tafel Electric and Supply Co., all holders of duly recorded mechanic's and materialman's liens on said property (and most of them are Kentucky citizens). (Government National Mortgage Association was added as a defendant in plaintiff's First Amended Complaint as assignee of the interest held by Kentucky Housing Corp.) Plaintiff demands that they be required to come forth and assert their claims, if any they have, to the said real property.
Tafel Electric & Supply Co.'s responsive pleading included a cross-claim that asserted a lien on the real property of Briarwood Apartments in an amount in excess of ten thousand dollars ($10,000.00). Defendants Briarwood Apartments and Glick Co. removed the entire case to this Court on the basis of Tafel Electric's claim, pursuant to 28 U.S.C. Section 1441(c). The Court denied the motions to remand on May 8, 1981. It now reconsiders pursuant to 28 U.S.C. Section 1447(c) whether the case was removed improvidently and without jurisdiction.
In Fairington I, plaintiff American Builders Supply Co. alleges in its complaint that it furnished building materials to defendant Barry Philyaw d/b/a Southern Pressure Seal Co. (Barry Philyaw), pursuant to contractual arrangement, for the construction of Fairington Apartments of Lexington. Barry Philyaw was a subcontractor of defendant Glick Co., general contractor for the construction project. Plaintiff ceased to provide building materials to defendant Barry Philyaw on or about June 28, 1978. Plaintiff filed a lien in the appropriate state office against the real property of defendant Fairington Apartments within six (6) months after it ceased furnishing building materials to defendant Barry Philyaw. Plaintiff prays for judgment against defendant Fairington Apartments in the amount of the lien (an amount less than ten thousand dollars ($10,000.00)) plus interest and further prays that it be adjudged to have a lien on said real property superior to all other claims against said property except for any tax liens, and that the property be sold to satisfy the indebtedness.
Two other lien holders and the assignee of the mortgage on the property are named as parties to the action. Four additional lien holders intervened as defendants in the action. All the lienholders, including plaintiff, are Kentucky citizens. One intervenor, Tafel Electric & Supply Co., asserted a lien on the real property of Fairington Apartments in an amount exceeding ten thousand dollars ($10,000.00). Defendants Fairington Apartments and Glick Co. filed a petition for removal in this Court, basing jurisdiction on the claim of the intervenor Tafel Electric & Supply Co.
Two motions to remand were filed, one by defendant Hopkins Erecting Co. and one by intervenor Winges Co., Inc. The argument in support of those motions is that the petition is defective because (1) it was filed out of time as to all defendants but intervenor Tafel Electric & Supply Co., (2) it fails to state that defendant Glick Co. was not a citizen of the Commonwealth of Kentucky at the time of the filing of the original action for removal and at the time of the filing of the petition for removal, (3) it fails to state the principal place of business of defendant Glick Co. at the time of filing of the original action and at the time of filing of the petition for removal, and (4) the petition contains no allegation of the citizenship of the individuals who comprise the limited partnership of Fairington Apartments of Lexington. Defendants Fairington Apartments and Glick Co. respond with a motion for leave to file an amended petition for removal and tender an amended petition for removal that corrects the defects in the original petition.
Fairington II concerns the same construction project as Fairington I, that is, the construction of Fairington Apartments of Lexington. Ethington Electric, Inc. filed its complaint in Fairington II on November 25, 1980, wherein it alleges that it executed and appropriately filed a lien on the real property of Fairington Apartments for materials furnished and labor performed in the construction of Fairington Apartments, pursuant to a contract between plaintiff and defendant Glick Co. The amount due plaintiff pursuant to said contract and as set forth in the Statement of Mechanic's Lien is in excess of ten thousand dollars ($10,000.00). Plaintiff demands judgment, jointly and severally, against defendants Fairington Apartments, James Beatty, and Glick Co. for the amount due plus interest, costs and attorney's fees; that it be adjudged a lien upon the real property of defendant Fairington Apartments, prior and superior to all the right, title and interest of the defendants; that the property be sold under orders of the Court to satisfy the lien of plaintiff; and that a receiver be appointed to take charge of the real property of defendant Fairington Apartments.
Plaintiff named as additional defendants six (6) other parties who hold liens against the real property of defendant Fairington Apartments plus the Government National Mortgage Association, holder of a mortgage on said real property, and one (1) other party. Five (5) of the six (6) lienholders are parties to Fairington I. Defendant Winges Co., Inc. has moved to remand on the grounds that petitioners, defendants Fairington Apartments and Glick Co., have failed to allege a separate and independent cause of action, and the diversity of...
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