Kimmons v. IMC Fertilizer, Inc., 93-2038-CIV-T-17C.

• Decision Date: 14 February 1994
• Docket Number: No. 93-2038-CIV-T-17C.,93-2038-CIV-T-17C.
• Citation: 844 F. Supp. 738
• Parties: Elli KIMMONS, individually as Personal Representative of the Estate of Reece M. Kimmons, Jr., Deceased, and as mother and next of friend of Reece M. Kimmons, III, Plaintiff, v. IMC FERTILIZER, INC., a Delaware corporation doing business in Florida, and L.F. Thurner, Defendants.
• Court: U.S. District Court — Middle District of Florida

844 F. Supp. 738

Elli KIMMONS, individually as Personal Representative of the Estate of Reece M. Kimmons, Jr., Deceased, and as mother and next of friend of Reece M. Kimmons, III, Plaintiff, v. IMC FERTILIZER, INC., a Delaware corporation doing business in Florida, and L.F. Thurner, Defendants.

No. 93-2038-CIV-T-17C.

United States District Court, M.D. Florida, Tampa Division.

February 14, 1994.

Gary W. Sawyer, Robert Fraser, Sawyer & Pilka, P.A., Brandon, FL, for plaintiff.

Gregory Paul Hansel, Stephen F. Myers, Shackleford, Farrior, Stallings & Evans, P.A., Tampa, FL, for defendants.

ORDER DENYING PLAINTIFF'S MOTION TO REMAND

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiff's Motion to Remand (Docket No. 14), and Defendant's response thereto (Docket No. 16).

Plaintiff, Elli Kimmons ("Kimmons"), initiated this action in both her individual capacity as Personal Representative of the Estate of Reece M. Kimmons, Jr., deceased, and as the mother and next of friend of Reece M. Kimmons, III, against Defendants, IMC Fertilizer, Inc. ("IMC") and L.F. Thurner ("Thurner") in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. Kimmons seeks to recover for the wrongful death of her husband and for the resulting loss of consortium and mental anguish. The deceased was killed in a tragic accident while servicing a bulldozer owned and located upon facilities operated by IMC. Kimmons, a Florida resident, alleges that IMC, a Delaware corporation, was negligent by failing to provide the deceased with a safe workplace and that such negligence directly and proximately resulted in her husband's death. Kimmons also sued Thurner, a Florida resident and Vice President and General Manager of the IMC facility where the accident occurred, alleging that Thurner individually owed a duty to provide a safe work place for the deceased.

Subsequent to the filing of the instant action in the Florida state court, IMC removed the action to the Middle District of Florida, Tampa Division. IMC has since filed an Amended Notice of Removal (Docket No. 11). IMC asserts that Kimmons fraudulently joined Thurner as a defendant in order to defeat complete diversity as required by 28 U.S.C. § 1332(a)(1), to invoke federal jurisdiction. IMC asserts that there exists no reasonable basis by which to impose liability upon Thurner under Florida law, and thus the joinder of Thurner is fraudulent and does not serve to prevent removal.

Alternatively, Kimmons argues that Florida law indeed provides a reasonable basis upon which to impose liability upon Thurner in his capacity as a corporate officer of IMC. Kimmons additionally argues that remand is appropriate because Thurner failed to join in the Notice of Removal within the thirty (30) day period required by 28 U.S.C. § 1446(b).

Where state law provides no reasonable basis on which to impose liability upon a non-diverse defendant, the joinder of such a party is deemed fraudulent and does not defeat diversity for federal jurisdictional purposes. Tedder v. F.M.C. Corp., 590 F.2d 115, 116 (5th Cir.1979).¹ Defendants allege in pleadings and affidavit that Thurner had neither personal participation in or knowledge of the accident nor knowledge of the attendant working conditions. Defendants also assert through affidavit that Thurner was approximately seventeen (17) miles from the facility at the time of the accident. Kimmons does not oppose these assertions in pleadings or affidavit.

Kimmons asserts that Florida law provides an "arguably reasonable basis" on which to impose liability upon Thurner. In support thereof, Kimmons cites Woods v. Firestone Tire & Rubber Co., 560 F.Supp. 588 (S.D.Fla.1983), in which the plaintiff was injured while inflating a Firestone tire at a service station. In addition to Firestone, the plaintiff joined the service station owner as a non-diverse defendant. Id. Firestone subsequently removed the case to federal district court, alleging that the plaintiff fraudulently joined the non-diverse defendant solely for purposes of defeating diversity. Id.

An important distinction between Woods and the instant action is that the Woods court found that since the defendants did not argue "that Plaintiff's claim against the non-diverse defendant ... has no `arguably reasonable basis' in Florida law, this Court must presume that Plaintiff can state such a claim." Id. at 591 (emphasis added) (citing Tedder, 590 F.2d at 117). Here, IMC specifically argues that Kimmons' claim against Thurner has no such reasonable basis in Florida law. Therefore, the Court will not presume that Kimmons can maintain its claim against Thurner, and must look to Florida substantive law in order to determine if such a basis indeed exists.

Kimmons cites several Florida cases for the proposition that individual officers can be liable for their tortious conduct performed...