Horton v. Scripto-Tokai Corp.

• Citation: 878 F. Supp. 902
• Decision Date: 09 March 1995
• Docket Number: Civ. A. No. 3:94-cv414WS.
• Court: U.S. District Court — Southern District of Mississippi
• Parties: Tiffany HORTON, Individually and On Behalf of Her Deceased Daughter Cladisha Horton, and On Behalf of All Wrongful Death Beneficiaries of Cladisha Horton, Plaintiff, v. SCRIPTO-TOKAI CORPORATION and Capitol Tobacco & Specialty Company and Doe, Inc., 1-10, Defendants.

878 F. Supp. 902

Tiffany HORTON, Individually and On Behalf of Her Deceased Daughter Cladisha Horton, and On Behalf of All Wrongful Death Beneficiaries of Cladisha Horton, Plaintiff, v. SCRIPTO-TOKAI CORPORATION and Capitol Tobacco & Specialty Company and Doe, Inc., 1-10, Defendants.

Civ. A. No. 3:94-cv414WS.

United States District Court, S.D. Mississippi, Jackson Division.

March 9, 1995.

Shane F. Langston, Jackson, MS, for plaintiff.

Ross F. Bass, Jr., Jackson, MS, for defendants.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court is the motion of the plaintiff, Tiffany Horton, to remand this matter to the Circuit Court for the First Judicial District of Hinds County where the case originated before defendants Scripto-Tokai Corporation ("Scripto") and Sysco Corporation d/b/a Cochran-Sysco Food Services ("Sysco") removed it here under Title 28 U.S.C. 1441¹ and 1446.² Also before the court is defendant Scripto's motion to strike and retain jurisdiction of this matter. Submitted pursuant to Title 28 U.S.C. § 1447(c),³ plaintiff's motion to remand contends that complete diversity does not exist in this case because Mississippi residents are on both sides of this litigation.

Defendants take issue with plaintiff's motion and assert the following: firstly, that plaintiff's motion to remand was not timely filed; secondly, that the originally-named non-diverse defendant in this action was fraudulently joined by plaintiff; thirdly, that this court's diversity of citizenship jurisdiction was confirmed when, after removal, plaintiff voluntarily dismissed this non-diverse defendant; and, fourthly, that plaintiff's amendment of her complaint to add a different non-diverse defendant was improper and did not deprive this court of diversity jurisdiction.

After briefing was complete, this court allowed oral argument in this matter. For the reasons which follow, this court is persuaded to grant plaintiff's motion to remand this matter to state court and to deny defendant's motion to strike and to retain jurisdiction of this matter.

Plaintiff filed this wrongful death action on June 30, 1994, in the Circuit Court of Hinds County, First Judicial District, seeking recovery of damages for the death of her daughter, Cladisha Horton, who was killed in a house fire allegedly caused by a defective Scripto lighter. Named as defendants were Scripto-Tokai Corporation ("Scripto"); Sysco Corporation d/b/a Cochran-Sysco Food Services ("Sysco"); Wydett Hawkins d/b/a Wasco Town Enterprises; and Doe,⁴ Inc., 1-10, unknown individuals, corporations, and other entities that participated in the design, manufacture, and marketing of the subject Scripto lighter. Scripto, a Delaware corporation, is the manufacturer of the defective lighter. Sysco, a foreign corporation, was originally believed to be the distributor of the lighter. Wydett Hawkins, a Mississippi resident, was the retailer and/or distributor of the lighter.

Defendant Scripto filed a Notice of Removal pursuant to Title 28 U.S.C. § 1441 and 1446 with this court on July 18, 1994, alleging that the sole non-diverse defendant, Wydett Hawkins, was fraudulently joined in order to defeat diversity jurisdiction. Sysco joined in the removal.

Shortly after filing the original complaint in this cause, plaintiff learned that Capitol Tobacco & Specialty Company ("Capitol Tobacco"), not Sysco, was the distributor of the defective product. So, on July 19, 1994, plaintiff filed an amended complaint naming as defendants Scripto, Capitol Tobacco, and Doe, Inc., 1-10. Capitol Tobacco is a Mississippi corporation. Plaintiff also filed a notice dismissing without prejudice defendants Wydett Hawkins d/b/a Wasco Town Enterprises and Sysco.

Capitol Tobacco filed its answer to the amended complaint in August, 1994. Defendant Scripto filed its answer and counterclaim on August 26, 1994. In its counterclaim, Scripto named as an indispensable party defendant Jacqueline Horton, a resident of Jackson, Mississippi. Jacqueline Horton, the sister of Tiffany Horton, also lived at the house where the fire occurred. Her son, Demond Horton, was killed and her other son, Justin Horton, was injured by the fire.

On August 30, 1994, plaintiff moved to remand this case to state court. This motion was filed 42 days after the notice of removal.

TIMELINESS

Scripto alleges that plaintiff's motion to remand is untimely in that it was not filed within the 30-day period prescribed by 28 U.S.C. § 1447(c), but instead filed 42 days after defendants' Notice of Removal. The court disagrees with Scripto. Plaintiff's motion is not grounded on a "defect in the removal procedure" under § 1447(c) as Scripto alleges. Rather, plaintiff's motion is grounded on the theory that this court lacks subject matter jurisdiction because of the absence of complete diversity. Unlike defects involving procedural matters, lack of subject matter jurisdiction may be raised at any time, and the 30-day period of § 1447 is not applicable.

In Andrews v. United States Fidelity and Guaranty Corp., 789 F.Supp. 784 (S.D.Miss. 1992), this court expounded on this point. In Andrews, the victim in an automobile accident filed suit against USF & G and the driver of the other car. USF & G removed the case on the ground that the defendant driver was fraudulently joined. Forty-nine days after removal, plaintiff moved for a remand on the ground that the defendant driver was a proper party to the case, and, therefore, the federal court lacked subject matter jurisdiction due to a lack of complete diversity between the defendants. Finding that remand was proper and that the 30-day time limit did not apply, this court stated:

Plaintiff in the case sub judice seeks remand based upon lack of complete diversity, a defect in removal which is, of course, jurisdictional. This court may not take jurisdiction of any matter where one of the plaintiffs and one of the defendants are residents of the same state. See Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992); Ziegler v. Champion Mortgage Company, 913 F.2d 228 (5th Cir.1990); Mas v. Perry, 489 F.2d 1396, 1398-99 (5th Cir.1974), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Therefore, inasmuch as the plaintiff seeks remand based on lack of complete diversity, the matter in question is one of subject matter jurisdiction and the 30-day time limit in 28 U.S.C. § 1447(c) does not apply.

Andrews, 789 F.Supp. 784 at 786-87.

The cases cited by Scripto, Williams v. AC Spark Plugs, 985 F.2d 783, 787 (5th Cir.1993) ("Only in the case of a lack of subject matter jurisdiction—such as no diversity of citizenship, or absence of a federal question if that were the sole ground for removal—may the plaintiff object to removal after the thirty-day limit. Any other objection is procedural and waived after thirty days."); In re Shell Oil, 932 F.2d 1523 n. 6 (5th Cir.1991) ("As amended, § 1447(c) requires that motions for remand must be made within 30 days of removal, except in cases in which the court lacks subject matter jurisdiction.") and Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 (5th Cir.1991) (§ 1447(c) requires motions for remand to be made within thirty days of removal, except in cases in which the court lacks subject matter jurisdiction), all hold that the 30-day time limit applies only to procedural defects, not jurisdictional ones. A procedural defect, according to Baris, 932 F.2d at 1544, "is any defect that does not go to the question of whether the case originally could have been brought in federal district court." Of course, where subject matter jurisdiction is based solely on diversity of citizenship, the existence of a non-diverse defendant would defeat federal jurisdiction. Andrews, 789 F.Supp. at 786; see also Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978). Accordingly, this court finds that pursuant to § 1447(c) plaintiff's motion to remand is timely.

WAS WYDETT HAWKINS FRAUDULENTLY JOINED?

Scripto's notice of removal was based on the alleged fraudulent joinder of defendant Wydett Hawkins ("Hawkins"). Scripto argues that Hawkins was fraudulently joined because he was not served with summons. This argument does not support removal. See Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S.Ct. 347, 350, 83 L.Ed. 334 (1939) (mere fact that non-diverse defendant has not been served does not justify removal); Castner v. Exxon Co. U.S.A., 563 F.Supp. 684, 687 (E.D.Pa.1983) (fact that defendant residing in same state as plaintiff had not yet been served did not mean that federal district court could ignore his residency in determining jurisdiction); Pecherski v. General Motors Corp., 636 F.2d 1156, 1160 (8th Cir. 1981) (in determining propriety of removal, courts must consider all named defendants regardless of service); Doe v. Armour Pharmaceutical Co., 837 F.Supp. 178, 186 n. 1 (E.D.La.1993); Aydell v. Sterns, 677 F.Supp. 877, 881 (M.D.La.1988) ("The simple fact that a resident defendant has not yet been served does not, in and of itself, entitle a non-diverse defendant to remove."); Doe, 837 F.Supp. at 186 n. 1 (same).

Moreover, it appears that at the time of removal Hawkins was a proper party to the lawsuit. Hawkins was sued as the retailer and/or distributor of the lighter. Nevertheless, defendant says that Hawkins was fraudulently joined.

Mere allegations of fraudulent joinder standing alone are not sufficient to divest the state court of jurisdiction over this matter. A claim of fraudulent joinder must be asserted with particularity and supported by clear and convincing evidence. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). "Merely to traverse the allegations upon which the liability of the resident defendant is rested, or to apply the epithet `fraudulent' to the joinder, will not suffice; the showing...