Knudson v. Sys. Painters Inc.

Citation634 F.3d 968
Decision Date11 March 2011
Docket NumberNo. 10–2124.,10–2124.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
PartiesJohn E. KNUDSON, Plaintiff–Appellant,v.SYSTEMS PAINTERS, INC.; Systems Painters & Drywall, LP; Systems Painters & Drywall II, LP, Defendants–Appellees.


Thomas C. Devoto, St. Louis, MO, argued (Robert M.N. Palmer, Springfield, MO, on the brief), for appellant.Christopher Turney, Kansas City, MO, argued (Clayton E. Dickey, Vincent E. Gunter, I, Kansas City, MO, on the brief), for appellees.Before MURPHY, BYE, and MELLOY, Circuit Judges.MELLOY, Circuit Judge.

John E. Knudson alleges he suffered lung injuries while working on a construction site after he inhaled a significant amount of paint particulate. To recover damages, Knudson brought state-law claims in an action in Missouri state court against Randy Long, Systems Painters, Inc., Systems Painters & Drywall, LP, and Systems Painters & Drywall II, LP. (We refer to the last three defendants as a single entity, “Systems Painters.”) Knudson alleges that Long was a co-employee who supervised him at the construction site and that Systems Painters produced the paint particulate at issue. Knudson and Systems Painters agree that Knudson and Long are Missouri citizens and that Systems Painters is a Texas citizen.1

The Missouri district court dismissed Knudson's claim against Long, finding that Missouri's workers' compensation laws provided Long with immunity. Systems Painters then removed the action to the U.S. District Court for the Western District of Missouri. Knudson sought remand, arguing that Long's presence prevented diversity of citizenship. The court denied Knudson's remand motion after finding that he had fraudulently joined Long. However, the court proceeded no further in resolving Knudson's claims against Systems Painters. Instead, the court certified its order denying remand for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Knudson applied for an interlocutory appeal, we granted his application, and we now reverse.

I. Background

Knudson is a former employee of Long Refrigeration, Inc., a Missouri corporation. In 2003, Wal–Mart decided to build stores in Ava and Ozark, Missouri. Wal–Mart awarded the construction contracts to two separate companies, with each company hiring Long Refrigeration to install heating, ventilating, and air-conditioning (“HVAC”) systems for each of the stores. Additionally, each company hired Systems Painters to paint the stores' interiors.

Long Refrigeration began installing the HVAC systems in December of 2003 or 2004. During this same time, Systems Painters began painting. Knudson claims that Systems Painters was supposed to apply its paints and coatings only in “well-ventilated area[s] and that individuals who were working nearby were supposed to have proper equipment to prohibit the inhalation of paint particulate. Knudson claims, however, that the construction sites were “unventilated” and that his equipment did not effectively prevent the inhalation of paint particulate. Specifically, Knudson claims Systems Painters covered the openings of the stores with plastic “to minimize the availability of fresh air” and then used heaters to apply the paint at an elevated temperature. These actions “essentially shrink-wrapped” the stores, according to Knudson. As a result, the paint particulate in the air was so thick that Knudson and others who were installing the HVAC systems would “have difficulty seeing what they were working on,” would “leave the job site completely coated” in paint, and would have “difficulty breathing.”

While working on the HVAC installations, Knudson claims he was “operating under the direct management and control” of Long. Knudson claims he and other Long Refrigeration employees told Long that they were having difficulty breathing and working in the stores as a result of the paint particulate in the air. In response, according to Knudson, Long “demanded” that Knudson and the other employees “get into the [stores] and complete the HVAC contract” because Long Refrigeration did not want to pay any penalties for failing to complete the HVAC systems on time. Long provided the employees with masks, but Knudson claims these were “cheap and inadequate” and became “so clogged with particulate matter [that the employees] would have to remove them in order to be able to breath at all.” As a result, Knudson had to inhale paint particulate. According to Knudson, this caused “severe, permanent, and disabling injury to his lungs” and “a severe loss of lung capacity” that has “rendered [him] permanently and totally disabled from any gainful employment.”

On August 25, 2005, Knudson filed a claim for his lung injuries with Missouri's Division of Workers' Compensation. On July 1, 2008, Knudson filed a suit against Long and Systems Painters in Missouri state court. Knudson claimed that the conduct of both Long and Systems Painters caused his lung injuries. Missouri's workers' compensation laws ordinarily immunize co-employees like Long from negligence liability for failing to maintain a safe working environment, but co-employees may be liable for damages caused by “affirmative acts of negligence” outside the scope of an employer's responsibility to provide a safe workplace. Thus, Knudson alleged that Long committed affirmative acts of negligence by providing inadequate breathing masks and by instructing him to continue installing the HVAC systems despite knowing that the construction sites were very poorly ventilated. Knudson claimed these actions were “deliberate[ ], intentional [ ], and in conscious disregard for [his] safety.”

On October 14, 2008, Long filed a motion to dismiss, arguing that he was immune from suit because Knudson's allegations were insufficient to establish that Long had committed an affirmative act of negligence. On November 5, the Missouri district court granted the motion.

On December 4, 2008, Systems Painters removed the case to the U.S. District Court for the Western District of Missouri. On December 29, Knudson filed a motion to remand, arguing that because Long is a Missouri citizen, “there [was] not complete diversity of citizenship at the time of the filing of this matter in [Missouri state court].” On April 5, 2009, the district court issued an order denying Knudson's motion to remand. The court found that it had original jurisdiction based upon diversity of citizenship because Knudson had fraudulently joined Long.

In this interlocutory appeal, Knudson argues that the district court erred in denying his motion to remand because (1) Systems Painters's notice of removal was not timely and (2) the district court lacked original jurisdiction over this case.

II. Discussion
A. Whether Systems Painters's Removal Was Timely

Knudson first argues that the district court erred in denying his remand motion because Systems Painters's notice of removal was not timely. The removal statutes provide a thirty-day deadline by which a defendant must file a notice of removal. 28 U.S.C. § 1446(b). The event that triggers the running of this thirty-day deadline depends upon whether the case stated by the initial pleading” is removable. Id. Both parties agree that this case, as “stated by the initial pleading,” was not removable. Thus, the running of the thirty-day deadline was triggered when—and if—Systems Painters received “through service or otherwise, ... a copy of an amended pleading, motion, order, or other paper from which it may first [have been] ascertained that the case is one which is or has become removable.” Id.

The district court ruled that Systems Painters's notice of removal was timely, and we review this ruling de novo. Lovern v. Gen. Motors Corp., 121 F.3d 160, 161 (4th Cir.1997).

On appeal, Knudson argues that when Systems Painters received Knudson's complaint on July 1, 2008, it could have ascertained that the case was removable because it could have ascertained that diversity of citizenship existed 2 and that the amount-in-controversy requirement was met. Systems Painters argues that it could not ascertain whether Knudson's action satisfied the amount-in-controversy requirement until November 13, 2008, when it received records from Missouri's Department of Workers' Compensation which quantified some of Knudson's alleged damages. In response, Knudson argues that even though his complaint did not explicitly state that the case met the amount-in-controversy requirement, Systems Painters had to “glean from the general allegations of damages [in his complaint] whether a jury could conceivably render a verdict in excess of $75,000.” Knudson argues that since he alleged in his complaint that he suffered permanent lung damage and that he will be unable to be gainfully employed in the future, it is apparent that a jury could conceivably render a verdict in his favor in excess of $75,000.

This case raises a similar issue to the one we faced in In re Willis, 228 F.3d 896 (8th Cir.2000). In that case, a Missouri plaintiff brought a personal-injury action against a Virginia defendant in Missouri state court. Id. at 897. The plaintiff sought damages for pain and suffering, permanent disability, and wage loss, but the plaintiff's complaint did not explicitly disclose the amount of damages sought. The defendant removed the case to federal court. The plaintiff filed a motion to remand, arguing that the defendant's removal was untimely because he filed his removal notice more than thirty days after he received a copy of the plaintiff's complaint. Id. at 897.

We disagreed that the defendant's removal was untimely and stated, We find the thirty-day time limit of section 1446(b) begins running upon receipt of the initial complaint only when the complaint explicitly discloses the plaintiff is seeking damages in excess of the federal jurisdictional amount.” Id. at 897; see also Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (...

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