McKinney v. Rodney C. Hunt Co., SH-C-78-134.

• Decision Date: 26 October 1978
• Docket Number: No. SH-C-78-134.,SH-C-78-134.
• Citation: 464 F. Supp. 59
• Court: U.S. District Court — Western District of North Carolina
• Parties: Kenneth C. McKINNEY, Plaintiff, v. RODNEY C. HUNT COMPANY, WSF Industries, Incorporated, Automatic Switch Company, and Allen Bradley Company, Defendants.

464 F. Supp. 59

Kenneth C. McKINNEY, Plaintiff, v. RODNEY C. HUNT COMPANY, WSF Industries, Incorporated, Automatic Switch Company, and Allen Bradley Company, Defendants.

No. SH-C-78-134.

United States District Court, W. D. North Carolina, Shelby Division.

October 26, 1978.

COPYRIGHT MATERIAL OMITTED

Simpson, Baker, Aycock & Beyer by Dan R. Simpson, Morganton, N. C., Triggs & Hodges by C. Gary Triggs, Morganton, N. C., for plaintiff.

Hedrick Parham, Helms, Kellam & Feerick by Richard T. Feerick, Charlotte, N. C., for Allen-Bradley Co.

Helms, Mulliss & Johnston by W. Donald Carroll, Jr., E. Osborne Ayscue, Jr., Charlotte, N. C., for Rodney Hunt Co.

Golding, Crews, Meekins, Gordon & Gray by Fred C. Meekins and Rodney Dean, Charlotte, N. C., Ragsdale, Liggett & Cheshire, Raleigh, N. C., for WSF Industries.

MEMORANDUM AND ORDER

WOODROW WILSON JONES, Chief Judge.

The Plaintiff commenced this action in the General Court of Justice, Superior Court Division of the State of North Carolina, naming Rodney C. Hunt Company; WSF Industries, Incorporated; Automatic Switch Company and Allen Bradley Company as Defendants. The Plaintiff alleged that he was injured in an industrial accident when the door of a dye beck vessel opened resulting in eruption of hot material from the vessel, which knocked him to the floor and covered his body with the hot steam, dying solution and cloth. Plaintiff seeks compensatory damages in the amount of five hundred thousand dollars ($500,000.00) from each Defendant.

As set forth in the complaint, the Plaintiff alleged negligence on the part of each Defendant as follows:

"That the Defendant, Rodney C. Hunt Company, did negligently design, manufacture, assemble, label, market and install the aforesaid Hue-Master dye beck vessel, and failed to warn foreseeable third parties of the foreseeable and latent dangers attendant upon the proper and intended use of said vessel;

"That the Defendant, WSF Industries, Incorporated, did negligently design, manufacture, label and market the aforesaid Rapidoor dye beck vessel door, and failed to warn foreseeable third parties of the foreseeable and latent dangers attendant upon the proper and intended use of said door;

"That the Defendant, Automatic Switch Company, did negligently manufacture, design and market its aforesaid ASCO 4-Way Dual Solenoid Valve;

"That the Defendant, Allen Bradley Company, did negligently manufacture, design and market the aforesaid Allen Bradley Pressure Switch, and did negligently misrepresent said switch as being waterproof;

"That as a proximate result of the aforesaid unexpected opening of the Hue-Master dye beck vessel door, the Plaintiff has suffered head injuries from being knocked to the floor by the force of the escaping materials, and serious and painful burns over much of his body from contact with hot steam, dye solution and cloth."

On August 2, 1978, Defendant Allen Bradley Company petitioned the Court for removal of the action from the state court to the United States District Court for the Western District of North Carolina. Subsequently, the Plaintiff filed a Motion to Remand the case to the state court pursuant to 28 U.S.C.A. § 1447, contending "that the case was removed to this court improvidently and without jurisdiction, in that all of the defendants did not join in the Petition for Removal and that the Petition was not verified by any of the Defendants." A hearing on this matter was held on September 25, 1978 in Rutherfordton and after a careful consideration of the record and arguments of counsel, the Court now enters its findings and conclusions.

Examination of the record reveals that counsel for the Allen Bradley Company submitted his affidavit as verification of the contents of the removal petition. Courts have held the verification requirement to be a formal one, with any defect easily curable. Additionally, an attorney's affidavit has been held sufficient to fulfill this requirement for removal. See 1A Moore's Federal Practice ¶ 0.1683.-4 p. 466 (2nd Ed. 1974). Therefore, removal would not be precluded based upon the fact that the Defendant itself did not verify the contents of the petition.

The record also shows that the Allen Bradley Company is the only Defendant which has filed or joined in a petition for removal of the action from state to federal court. The record reflects that all of the Defendants were notified in advance of the September 25, 1978 hearing in this Court. All of the Defendants except Automatic Switch Company were represented by counsel at the hearing. It was represented to the Court at the hearing that the Automatic Switch Company had filed motions in the action in the state court, and there was no indication that that Defendant wanted the case removed. Counsel for the Defendant, Rodney C. Hunt Company represented to the Court that they did not object to removal. Counsel for WSF Industries, Incorporated appeared specially, arguing that there was no jurisdiction of his client in either state or federal court in North Carolina. Thus, the record and the arguments show that there is one Defendant, Automatic Switch Company which has shown no intention to join in a petition for removal, that one Defendant, WSF Industries, Incorporated has not given its views on removal and a third Defendant, Rodney C. Hunt Company has given only an oral indication that it would join in a removal petition, leaving the Defendant Allen Bradley Company as the only Defendant presently moving formally for the action to be removed.

While 28 U.S.C.A. § 1441 sets forth the jurisdictional requirements for removal, § 1446 provides the procedure for removal of an action from state court to federal court. Assuming the jurisdictional requirements of § 1441 are met, § 1446(a) provides that "a defendant or defendants" desiring removal shall file a petition in the federal district court within which such action is pending. The courts have held as a general rule that "defendants" must be treated collectively. See 1A Moore's Federal Practice ¶ 0.1683.-2 p. 447 (2nd Ed. 1974). As stated in Moore's "... unanimity among all parties substantively entitled to remove is required." Id. at p. 448. See also Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants' Local 349, 427 F.2d 325 (5th Cir. 1970). Thus, each and every defendant who can meet the jurisdictional requirements of 28 U.S.C.A. § 1441 must join in a petition for removal in order for the petition to be valid. A caveat to the general rule is that nominal or formal parties, unknown defendants and defendants fraudulently joined may be disregarded, but proper, necessary and indispensable parties must be considered. See Tri-Cities Newspaper, Inc., supra. Since the Allen Bradley Company is the only Defendant which has filed a petition for removal at this time, the case must be remanded to state court for the failure to join each of the Defendants unless they can show they fall into an exception to § 1441 and § 1446.

The Defendant, Allen Bradley Company, did not contend that the other Defendants were merely nominal or formal parties. However, there was some question asserted by Defendants WSF Industries, Incorporated and Rodney C. Hunt Company that they had not been properly served and therefore it was unnecessary for them to join in a petition for removal. There is some authority for the argument that a nonresident defendant who has not been served can be disregarded for removal purposes since such defendant would be dismissed if the plaintiff failed to obtain jurisdiction over him. See Grivas v. Parmelee Transp. Co., 207 F.2d 334 (7th Cir. 1953), cert. denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069 (1954). Thus, if none of the Defendants, other than the Allen Bradley Company have been served, then there is a possibility the action could be removed upon its petition alone. But there remains at least one Defendant, Automatic Switch Company that did not join in the removal petition or contest the validity of the service of process in this Court. Therefore, without deciding whether or not, Defendants WSF Industries, Incorporated and Rodney C. Hunt Company have been properly served, the Court holds that the case must be remanded to the state court due to the failure of the Defendant Automatic Switch Company to join in the petition for removal.

Defendant, Allen Bradley Company, argued that Plaintiff's claim against it could be removed under § 1441(c) as a "separate and independent claim or cause of action," without the joinder of any other of the Defendants in the petition for removal. However, the facts in the instant case do not indicate the type of independent claim provided for in § 1441(c). Plaintiff has filed an action in tort, alleging negligence on the part of each Defendant. Defendant, Allen Bradley Company, argues that the complaint indicates several liability rather than joint liability among the Defendants and therefore, the claims are separate and independent for purposes of removal. It is unnecessary for the Court to determine whether or not the complaint can be construed as alleging joint as well as several liability, because, where a plaintiff, as in the instant case, joins two or more defendants to recover damages for one injury there is no joinder of separate and independent causes of action within...