Lewis v. Armstrong Steel Erectors, Inc.
| Decision Date | 02 February 1998 |
| Docket Number | No. Civ.A. 2:97-1108.,Civ.A. 2:97-1108. |
| Citation | 992 F.Supp. 842 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | Daniel J. LEWIS, et al., Plaintiffs, v. ARMSTRONG STEEL ERECTORS, INC., et al., Defendants. |
Stuart Calwell and David Carriger, Calwell and McCormick, Charleston, WV, for Plaintiffs.
Eric J. Hulett, Brown & Levicoff, Beckley, WV, for Armstrong.
David L. Campbell, Baker, Lancianese & Smith, Huntington, WV, for Mahan.
Pending are Plaintiffs' motion to remand and Defendant Armstrong's motion to compel. Having been informed by Armstrong that its motion to compel is withdrawn, the Court DENIES the motion as moot. For reasons that follow, the Court DENIES Plaintiffs' motion to remand.
On November 18, 1996 Daniel J. Lewis filed a wrongful death action against Defendants Armstrong Steel Erectors, Inc. ("Armstrong"), C.J. Mahan Construction Company ("Mahan") and the West Virginia Department of Transportation, Division of Highways ("WVDOH") in the Circuit Court of Kanawha County. Plaintiff's decedent, Daniel J. Lewis II, an ironworker, suffered a fatal fall from a construction job on the Chelyan Bridge project. Mahan was the project's general contractor and Armstrong, the decedent's employer, was the subcontractor.
On January 3, 1997 WVDOH filed a motion to dismiss Plaintiffs' claims against WVDOH, claiming sovereign immunity from suit because WVDOH's applicable insurance policy would not provide coverage given the factual circumstances of Lewis's fall. See, e.g., Shrader v. Holland, 186 W.Va. 687, 688, 414 S.E.2d 448, 449 (W.Va.1992) ().
On October 15, 1997 the state court ordered dismissal of WVDOH ("the Order"). It held the insurance policy specifically excluded coverage "for situations where employees of the State of West Virginia are inspecting work being performed by others." Ex. 1 at 2. After considering Plaintiffs' arguments, the state court found no evidence that brought the event within the policy's coverage. Specifically, the Court rejected Plaintiffs' arguments that (1) Mahan or Armstrong could be deemed WVDOH employees and (2) the insurance policy provided coverage for Plaintiffs' other claims of negligent selection of a contractor and negligent approval of a subcontractor. The Court concluded WVDOH "is entitled to rely on the State's constitutional sovereign immunity from suit for damages payable from State funds." Id. at 3.
On November 13, 1997 Armstrong and Mahan filed a notice of removal. On December 11, Plaintiffs filed a motion to remand, arguing (1) the notice for removal was not timely filed, (2) removal was improper because WVDOH was involuntarily dismissed, and (3) there is a reasonable possibility that the state court's Order will be reversed on appeal.
The procedure for removal is stated in 28 U.S.C. § 1446.1 The United States Supreme Court has reviewed the procedure for removal.
When a plaintiff files in state court a civil action over which the federal district courts would have original jurisdiction based on diversity of citizenship, the ... defendants may remove the action to federal court, 28 U.S.C. § 1441(a) .... In a case not originally removable, a defendant who receives a pleading or other paper indicating the post-commencement satisfaction of federal jurisdictional requirements — for example, by reason of the dismissal of a nondiverse party — may remove the case to federal court within 30 days of receiving such information. § 1446(b).
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 472-473, 136 L.Ed.2d 437 (1996) (emphasis added). This Court has cautioned, " " Watson v. Appalachian Power Co., 934 F.Supp. 191, 193 (S.D.W.Va.1996) (Haden, C.J.) (citations omitted).
Plaintiffs argue the case should be remanded because it was not removed within thirty days of Defendants' receiving copies of the complaint. Plaintiffs' argument is as follows: if WVDOH were fraudulently joined, such joinder dates back to the complaint. Thus the complaint itself was the first paper that allowed Defendants to ascertain the case was removable. This argument fails. The complaint showed the case not to be removable because the State was a party. Martin Sales & Processing, Inc. v. W.V. Dept. of Energy, 815 F.Supp. 940, 942 (S.D.W.Va.1993) (Haden, C.J.) (citations omitted).
Alternatively, Plaintiffs argue Defendants must have filed the Notice of Removal within thirty days of Defendants' determining WVDOH was fraudulently joined. The rule, however, states the time period begins to run upon "receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."2 28 U.S.C. § 1446(b) (emphasis added). Plaintiffs do not identify any such pleading, motion, order or other paper that Defendants received prior to the state court's Order. From the record before it, the Court finds the Order to be the first such document. Because Defendants filed a Notice of Removal within thirty days of the entry of the Order, the Court finds the Notice was timely.
Plaintiffs allege removal was improper because WVDOH was involuntarily dismissed by the state court. It is well-established that "[i]f the dismissal is voluntary, the action may be removed; if involuntary, removal is improper." Arthur v. E.I. duPont, 798 F.Supp. 367, 368 (S.D.W.Va.1992) (Haden, C.J.). Defendants do not contest that WVDOH was involuntarily dismissed. In Arthur, this Court also stated, however, "a claim of fraudulent joinder is a `well-established exception to the voluntary-involuntary rule.'"3 Id. at 369 (citations omitted). Because Defendants allege fraudulent joinder, the Court turns next to that issue.
Although a court must resolve any doubts concerning the propriety of removal in favor of remand, fraudulent joinder to avoid federal jurisdiction "`will be found when there is no arguably reasonable basis for predicting that state law might impose liability on the facts involved.'" Watson, 934 F.Supp. at 193 (quoting Arthur, 798 F.Supp. at 369). "The Court must decide whether there is any reasonable possibility that the judgment of the circuit court ... will be reversed on appeal." Arthur, 798 F.Supp. at 370. This is a heavy burden for Defendants because the Court resolves all issues of fact and law in favor of Plaintiffs. Id. Plaintiffs argue the state court Order may be reversed on appeal because Armstrong and Mahan either (1) could be found to have been employees of WVDOH or (2) could be found liable under one of Plaintiffs' alternate theories of liability, namely negligent selection or supervision of contractor/subcontractor. Both arguments fail.
It is important to note that in West Virginia there is no appeal of right to the West Virginia Supreme Court of Appeals. Appeals are by petition only. See W.Va. R.App.P. 3, 7. Recent figures show 571 petitions for appeal of civil cases were filed in 1997 and only 168 were granted — less than thirty percent. Office of the Clerk, West Virginia Supreme Court of Appeals, 1997 Statistical Report, at 2. Plaintiffs' appeal will have to survive the rigorous petition process before it possibly could result in the reversal of the state court Order.
The state court specifically addressed each of Plaintiffs' arguments. After reviewing the motion to dismiss and response thereto, as well as hearing oral arguments, the state court found there was no "evidence of participation" by WVDOH in "construction, maintenance, repair or cleaning activities" or evidence of WVDOH employees performing activities other than standard inspection practices. Ex. 1 at 2. The state court specifically described as "unpersuasive" Plaintiffs' argument that Defendants were "employees" of WVDOH. To arrive at this holding, the state court canvassed West Virginia statutory and case law.
Plaintiffs have not provided this Court with evidence to the contrary. Plaintiffs argue they have presented evidence WVDOH employees gave specific direction to Defendants' employees and it was "understood that WVDOH had the authority to exercise such control over the work performed at the job site." Pls.' Mot. at 7. The evidence shows otherwise.
Fred Blackwell, WVDOH Project Supervisor for the Chelyan Bridge project, stated his responsibility was "[t]o, basically, oversee the entire project and make sure the project was built according to the plans and specifications" and to pay the contractor. Blackwell Depo. at 8. When asked particularly about whether an inspector would intervene regarding a contractor employee not wearing a safety belt, Blackwell stated, Id. at 24.
Similarly, Eric Cook, WVDOH Project Engineer on the project at issue, stated his duties were "to inspect the structure work" to make sure it is built "in accordance with the plans and specifications." Cook Depo. at 6. He did not believe he had the authority to stop work based on an observed safety violation because that is not within the scope of his...
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