Lowery v. Honeywell Intern., Inc.
| Decision Date | 24 October 2006 |
| Docket Number | Civil Action No. 06-AR-1370-S. |
| Citation | 460 F.Supp.2d 1288 |
| Parties | Katie LOWERY, et al., Plaintiffs, v. HONEYWELL INTERNATIONAL, INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Becky Thomason, Bill Thomason, Thomason Maples & Allsup LLC, Bessemer, AL, Honora M. Gathings, Lloyd W. Gathings, II, Richard Warren Kinney, III, Gathings Law, Birmingham, AL, for Plaintiffs.
Adam K. Peck, Jackson R. Sharman, III, W. Larkin Radney, IV, William Earl Bonner, Lightfoot Franklin & White LLC, Brian M. Blythe, Joel M. Kuehnert, Joseph B. Mays, Jr., Sid J. Trant, Bradley Arant Rose & White LLP, Kevin T. Shires, Law Office of Kevin T. Shires LLC, Robert H. Sprain, Jr., Sprain & Associates PC, John E. Getty, Steven F. Casey, Balch & Bingham LLP, James C. Huckaby, Jr., John W. Scott, Huckaby Scott & Dukes PC, Christopher J. Williams, H. Thomas Wells, Jr., J. Alan Truitt, Maynard Cooper & Gale PC, J. Alan Truitt, Christopher C. Haug, Patricia Clotfelter, Baker Donelson Bearman Caldwell & Berkowitz PC, Alfred F. Smith, Jr., Sela E. Stroud, Bainbridge Mims Rogers & Smith LLP, De Martenson, Frank E. Lankford, Jr., S.A. Bradley Baker, III, Huie Fernambucq & Stewart LLP, Michael D. Freeman, Spencer M. Taylor, Teresa G. Minor, Tyrell Jordan, Balch & Bingham LLP, Tyrell Jordan, Patrick Patronas, W. Hill Sewell, Lloyd Gray & Whitehead PC, Birmingham, AL, for Defendants.
Before the court is the motion of Katie Lowery and her 418 fellow plaintiffs ("plaintiffs") to remand their above-entitled conjoined action to the Circuit Court of Jefferson County, Alabama, from which it was removed by one defendant, Alabama Power Company ("Alabama Power"), as a purported "mass action" under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. §§ 1453 and 1332(d). Also before the court is plaintiffs' motion for reconsideration of the court's order of August 16, 2006, requiring them to state their opinions of the fair values of their respective 419 individual claims and whether or not an aggregation of their claims can reasonably be expected to reach the $5,000,000 in controversy necessary for a CAFA removal. For the reasons that follow, the court will grant both the motion for reconsideration and the motion to remand.
Plaintiffs own and occupy numerous parcels of real property situated in Jefferson County, Alabama. On January 24, 2003 Ms. Lowery and eight other individuals filed a complaint against eleven named alleged polluters and multitudinous fictitious defendants in the Circuit Court of Jefferson County, Alabama, Bessemer Division, seeking damages under Alabama law for trespass to person and realty; negligent, wanton or intentional injury; nuisance; and outrageous conduct. If any tort was committed by any defendant, it arose out of the discharge of pollutants into the air of Jefferson County. There is nothing in the original complaint to distinguish between a plaintiff who may be claiming severe lung disease from one who may be claiming grit in her grits. The original complaint included the following demand:
[E]ach Plaintiff demands judgment against said Defendants in the sum of One Million Two Hundred Fifty Thousand Dollars and costs.
On October 31, 2005, after the case had been transferred from the Bessemer Division to the Birmingham Division, plaintiffs filed an amended and recast complaint, in which 533 individuals were named as plaintiffs and an additional defendant was named, and the preposterous demand for $1,250,000 for each plaintiff was eliminated and replaced with the following enigma:
[T]he plaintiffs demand judgment against said defendants in an amount of compensatory and punitive damages to be determined by a jury in excess of the jurisdictional minimum of this [state] Court, together with interest from the date of injury, and the costs of this proceeding.
There was no request, express or implied, for status as a class action in the original or any subsequent amended complaint. The only excuse offered for conglomerating the separate, individual complaints into one suit was that the claims shared common questions of fact and law. On March 16, 2006, plaintiffs filed a second amended and recast complaint, which named 417 plaintiffs and in which the indeterminate demand for judgment and damages was not changed.
On June 20, 2006, plaintiffs filed a third amended and recast complaint, naming 419 plaintiffs and adding as defendants, Alabama Power and Filler Products Company, Inc. ("Filler Products"). No new theories of liability or new acts of tortious conduct were added, and plaintiffs' demand for an unspecified amount in damages was identical to that contained in their first and second amended and recast complaints. On July 17, 2006, Alabama Power removed the case to this court. In its supplemental notice of removal it invoked 28 U.S.C. § 1446 and the removal provisions of CAFA, 28 U.S.C. §§ 1453 and 1332(d), asserting that the action constitutes a "mass action", which, under 28 U.S.C. § 1332(d)(11)(B)(i), is removable. Paragraph 3 of the supplement to the notice of removal began with this sentence: "Plaintiffs did not specify their damages in the complaint". On August 3, 2006, plaintiffs filed the motion to remand now under consideration. Although plaintiffs initially withdrew their motion to remand, they thereafter asked that it be reinstated, and the court reinstated it.1
On August 11, 2006, defendants, Filler Products, Hanna Steel Corporation, United States Steel Corporation, Butler Manufacturing Company, Honeywell International, Inc., Fritz Enterprises, Inc., CertainTeed Corporation, Vulcan Materials Company, Baily-PVS Oxides, LLC, and W.J. Bullock Inc., purported to join Alabama Power's notice of removal, although they deny that they were required to do so. They take the position that the entire case was effectively removed by the filing of Alabama Power's notice of removal.
CAFA expressly provides that "[t]he amendment made by this Act shall apply to any civil action commenced on or after the date of enactment of this act." (emphasis added). The date of CAFA's enactment was February 18, 2005. According to CAFA, then, to the extent this action was "commenced" before February 18, 2005, CAFA provided no removal opportunity.
Although plaintiffs filed their original complaint before CAFA's enactment, the amendment that added Alabama Power and Filler Products, and that precipitated this removal, came after CAFA's effective date. This procedural fact creates two potentially dispositive removability questions: (1) did the filing of the third amended complaint "commence" a new suit for purposes of CAFA; and (2) if so, did the new suit, by retroactive effect, "commence" as to all defendants, or only as to Alabama Power and Filler Products. Filler Products did not join the removal until more than thirty days after service of the third amended complaint, as required by 28 U.S.C. § 1446(b), and for aught appearing, it never filed a copy of a removal notice with the clerk of the state court as required by 28 U.S.C. § 1446(d). Therefore, the purported joinder by Filler Products in the removal by Alabama Power presents a timeliness issue not shared by Alabama Power or any of the original defendants.
After the court heard oral argument on plaintiffs' motion to remand, the Eleventh Circuit followed the Fifth Circuit's decision in Braud v. Transport Service Co. of Illinois, 445 F.3d 801, 803 (5th Cir.2006), and held that state law determines when an action is "commenced" for the purposes of CAFA. Tmesys, Inc. v. Eufaula Drugs, Inc., 462 F.3d 1317, 1319 (11th Cir.2006). In Braud, the Fifth Circuit had earlier explained that the date upon which an action is "commenced" in a state court is ascertained from that state's rules of procedure. 445 F.3d at 803. Accordingly, this court must look to the Alabama Rules of Civil Procedure to find out when this action was "commenced." Alabama's rules provide that "[a] civil action is commenced by filing a complaint with the court." Ala. R. Civ. P. 3(a). The fact, then, is that unless there is a way for defendants to escape the clutches of this procedural rule, this action was "commenced" on January 24, 2003, when the original complaint was filed.
As the Braud court recognized, a distinct issue appears when a complaint is amended to add a defendant. Following the Seventh Circuit's dicta from Schillinger v. Union Pac. R.R., 425 F.3d 330 (7th Cir.2005), the Fifth Circuit in Braud held that "as to the new defendant, removability is determined as of the date of receipt of service of the amended complaint, not as of the date on which the original suit was filed in state court." 445 F.3d at 805. (emphasis added). This language is pregnant with meaning. It means that as to Alabama Power and Filler Products for the purposes of CAFA this action was not "commenced" until June 20, 2006, while as to the original defendants, it was "commenced" on January 24, 2003. There is no basis for artificially applying the concept of "retroactivity" so as to make June 20, 2006, the "commencement" date as to original defendants against whom no new claims were made in the amended complaint filed on June 20, 2006. Accordingly only Alabama Power and Filler Products could, by filing notices of removal within thirty days after June 20, 2006, and notifying the state court clerk of the removal, avail themselves of the removal provisions of CAFA. This leaves for discussion only the question of whether the procedural and substantive requisites for a CAFA removal were met by Alabama Power and Filler Products.
All defendants strenuously argue that a CAFA removal by a single defendant added after CAFA's enactment operates to effect the removal of the entire...
To continue reading
Request your trial
-
Lowery v. Alabama Power Co.
...court granted the motion and issued a substitute order and accompanying memorandum opinion on October 24, 2006. Lowery v. Honeywell Int'l Inc., 460 F.Supp.2d 1288 (N.D.Ala.2006).18 In its October 24 memorandum opinion, the district court held that, as a threshold matter, it lacked jurisdict......
-
Pretka v. Kolter City Plaza II, Inc.
...nor any other concrete information about the value of plaintiffs claims." (emphasis added)); see also Lowery v. Honeywell Int'l, Inc., 460 F.Supp.2d 1288, 1291 (N.D.Ala.2006) ("There is nothing in the original complaint to distinguish between a plaintiff who may be claiming severe lung dise......
-
McAtee v. Capital One, F.S.B.
...reached if "the relation back test were used"). A number of district courts, however, have not done so. See Lowery v. Honeywell Intern., Inc., 460 F.Supp.2d 1288, 1292 (N.D.Ala.2006); Comes v. Microsoft Corp., 403 F.Supp.2d 897, 903 (S.D.Iowa 2005); Weekley v. Guidant Corp., 392 F.Supp.2d 1......
-
Cordell v. W.W. Williams Co.
...nor any other concrete information about the value of plaintiffs' claims.” (emphasis added)); see also Lowery v. Honeywell Int'l, Inc., 460 F.Supp.2d 1288, 1291 (N.D.Ala.2006) (“There is nothing in the original complaint to distinguish between a plaintiff who may be claiming severe lung dis......
-
Trial Practice and Procedure - John O'shea Sullivan and Ashby L. Kent
...for more than $5 million. Id. at 1189. 57. Id. at 1190. 58. Id. at 1191. 59. Id. at 1191-92 (quoting Lowery v. Honeywell Int'l, Inc., 460 F. Supp. 2d 1288, 1296 (N.D. Ala. 2006)). 60. Id. at 1192. The district court also held, as a threshold matter, that it lacked jurisdiction over the clai......
-
Removal Jurisdiction Over Mass Actions
...(9th Cir. 2014) (en banc). 18. Lowery v. Ala. Power Co., 483 F.3d 1184, 1198 (11th Cir. 2007). 19. Lowery v. Honeywell Intern., Inc., 460 F. Supp. 2d 1288, 1293 (N.D. Ala. 2006). 20. Cooper v. R.J. Reynolds Tobacco Co., 586 F. Supp. 2d 1312, 1314 (M.D. Fla. 2008). 21. See, e.g.,In re Abbott......