Palermo v. Letourneau Technologies, Inc.
| Citation | 542 F.Supp.2d 499 |
| Decision Date | 26 March 2008 |
| Docket Number | Civil Action No. 5:07-cv-78 (DCB)(JMR). |
| Parties | Richard PALERMO and Sheila Palermo, Plaintiffs v. LETOURNEAU TECHNOLOGIES, INC.; Daniel C. Drew d/b/a Nationwide Medical Review; Kristy Brogan; Mississippi Baptist Medical Center; Gene R. Barrett, M.D.; Life Link Tissue Bank, Inc.; and Nutech Medical, Inc., Defendants. |
| Court | United States District Courts. 5th Circuit. Southern District of Mississippi |
Paul Kelly Loyacono, William A. Pyle, Attorneys, Vicksburg, MS, for Plaintiffs.
Robert L. Spell, G. Todd Burwell, Latham & Burwell, PLLC, Ridgeland, MS, for LeTourneau Technologies, Inc., defendant.
S. Craig Panter, Teresa Earley Harvey, Panter & Harvey, PLLC, Madison, MS, for Daniel C. Drew, defendant.
Diane V. Pradat, Wilkins, Stephens & Tipton, P.A., Jackson, MS, L. Carl Hagwood, Wilkins, Stephens & Tipton, PA, Greenville, MS, for Kristy Brogan, defendant.
Mark C. Carlson, Wilkins, Stephens & Tipton, P.A., Jackson, MS, for Life Link Tissue Bank, Inc., defendant.
Eugene R. Naylor, Dudley Collier Graham, Jr., Wise, Carter, Child & Caraway, Jackson, MS, for Mississippi Baptist Medical Center, defendant.
Clifford B. Ammons, Corey D. Hinshaw, Watkins & Eager, Jackson, MS, for Gene R. Barrett, defendant.
Eric Foster Hatten, Burr & Forman, LLP, Jackson, MS, for Nutech Medical, Inc., defendant.
This matter is before the Court on the plaintiffs' Motion to Remand (docket entry 19). Having reviewed the motion and response thereto, the memoranda and the applicable law, and being otherwise fully advised in the premises, the Court finds as follows:
I. BACKGROUND AND PROCEDURAL HISTORY
On February 12, 2007, the plaintiffs filed a complaint in the Circuit Court of Warren County, Mississippi, against LeTourneau Technologies, Inc. (hereinafter "LTI"), Daniel C. Drew d/b/a Nationwide Medical Review, Kristy Brogan, Fall Creek Health and Safety, Inc., Mississippi Baptist Medical Center, Gene R. Barrett, M.D., Life Link Tissue Bank, Inc., NuTech Medical, Inc., and Ace Property and Casualty Insurance Co. On March 7, 2007, LTI filed a notice of removal to this Court, based on federal question jurisdiction, 28 U.S.C. § 1331, diversity of citizenship, 28 U.S.C. § 1332, and supplemental jurisdiction, 28 U.S.C. § 1367, as well as pendent jurisdiction and ancillary jurisdiction. The removed action was given cause number 5:07-cv-52(DCB)(JMR).
In support of its assertion of federal question jurisdiction, defendant LTI alleged that the plaintiffs' complaint arose under the laws of the United States, namely the Longshoremen and Harbor Workers Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq. Among the allegations in the Complaint against LTI were the following:
COUNT II
WRONGFUL DISCHARGE
* * * * * *
36. It is the public policy of both the State of Mississippi and the United States of America that employees who are injured while acting within the scope and course of their employer's business, including the Plaintiff, be provided workers' compensation benefits or, in this case, benefits under the Longshoreman's and Harbor Workers' Act.
37. LeTourneau's actions aforesaid, both in terminating the Plaintiffs employment with the Defendant and in terminating the Plaintiffs aforesaid benefits associated with and caused by the Plaintiffs work-related injury herein, were in retaliation for the Plaintiff applying for, seeking, and receiving benefits caused by or associated with his work-related injury.
38. The aforesaid wrongful and retaliatory discharge of the Plaintiff by Le-Tourneau is in violation of the public policy of both the State of Mississippi and the United States of America.
39. LeTourneau had a duty to refrain from seeking to create and to refrain from creating false reasons to justify or attempt to justify its discharge of the Plaintiff from Defendant's employment.
40. LeTourneau violated its aforesaid duty by intentionally or negligently attempting to create and/or creating false reasons to discharge or attempt to justify Defendant's discharge of the Plaintiff from the Defendant's employment. Le-Tourneau also wrongfully interfered with the Plaintiffs right to unemployment benefits, stating that Palermo's unemployment was due to his use of cocaine and violation of LeTourneau's work rules.
* * * * * *
Compl. in Cause No. 5:07-C52(DCB)(JMR), ¶¶ 36-40.
On March 30, 2007, the plaintiffs filed a motion for voluntary non-suit, alleging "fatal technical defects" in the complaint against certain defendants, the receipt of information from other defendants which would result in dismissal of those defendants, and the plaintiffs' desire to remove any reference to federal law, namely the LHWCA, in order to foreclose the issue of whether the plaintiffs are seeking recovery under federal law. On the same day, March 30, 2007, the plaintiffs filed a new complaint against all but two of the original defendants in the Circuit Court of Warren County, Mississippi, which is the case presently before this Court.
On April 5, 2007, the plaintiffs filed a motion to remand cause number 5:07-cv-52(DCB)(JMR). On September 25, 2007, the Court issued a Memorandum Opinion and Order granting the plaintiffs' motion for voluntary non-suit, which the Court construed as a Motion for Voluntary Dismissal by Order of Court under Fed. R.Civ.P. 41(a)(2), and denying the motion to remand as moot.
The present action, cause number 5:07cv-78(DCB)(JMR) was removed to this Court on April 18, 2007. As with the former action, removal is based on federal question jurisdiction, 28 U.S.C. § 1331, diversity of citizenship, 28 U.S.C. § 1332, and supplemental jurisdiction, 28 U.S.C. § 1367, as well as pendent jurisdiction and ancillary jurisdiction.
The present Complaint names all of the original defendants except for Fall Creek Health and Safety, Inc., and Ace Property and Casualty Insurance Co. The plaintiffs, Richard and Sheila Palermo, are both citizens of the State of Mississippi. Compl., ¶ 1. Defendant Mississippi Baptist Medical Center ("MBMC") is a resident corporation of the State of Mississippi. Compl, ¶ 5. Defendant Gene R. Barrett, M.D. ("Barrett") is a citizen of the State of Mississippi. Compl., ¶ 6. Defendant Life Link Tissue Bank, Inc. ("Life Link")/ is a resident corporation of the State of Florida. Compl., ¶ 7. Defendant NuTech Medical, Inc. ("NuTech") is a resident corporation of the State of Alabama. Compl., ¶ 8. Defendant LTI is a resident corporation of the State of Texas. Compl., ¶ 2. Defendant Daniel C. Drew d/b/a/ Nationwide Medical Review ("Drew") is a citizen of the State of Indiana. Compl., ¶ 4. Defendant Kristy Brogan ("Brogan") is a citizen of the State of Texas.1 Not. of Remov., ¶ 6(B).
The Court notes, as an initial matter, that the Fifth Circuit interprets 28 U.S.C. §§ 1446(a) and (b) as imposing a "rule of unanimity," i.e., a requirement that all properly served defendants join in a notice of removal within the relevant thirty-day period as defined in the statute. Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.2002); Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir.1992); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir.1988). The rule requires "some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have authority to do so, that it has consented to such action." Getty Oil, 841 F.2d at 1262 n. 11.
In this case, not all of the defendants joined in the Notice of Removal filed by LTI. Joinders were filed by Barrett (docket entry 4), Drew (docket entry 5), Brogan (docket entry 6), and MBMC (docket entry 7). Defendants Life Link and NuTech did not join in the Notice of Removal. However, the failure of these defendants to join in the removal within the statutory thirty-day period is a nonjurisdictional defect that can be waived. See Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir.1990) (). Although they filed a timely motion to remand, the plaintiffs did not timely object to removal based on the procedural defect arising from Life Link's and NuTech's failure to join in the Notice of Removal, and they have therefore waived it. See 28 U.S.C. § 1446(c)("A motion to remand the case on the basis of any defect in removal procedure must be made within thirty days after the filing of the notice of removal under 1446(a).").
In their new complaint, the plaintiffs allege that plaintiff Richard Palermo was employed by LTI from February 1996 to September 21, 2006. On March 2, 2005, he sustained an injury to his right knee in an accident at work, and subsequently was treated by Dr. Barrett at MBMC. The Complaint alleges that during the course of this treatment, an allograft2 was furnished by Life Link and transported by NuTech to MBMC. The plaintiffs allege that the allograft was contaminated because of the negligence of Life Link and NuTech, and that Barrett and MBMC knew or should have known of the contamination prior to the insertion of the allograft into Palermo's right leg. Palermo alleges that he suffered disabilities because of the defendants' negligence, and that he had to undergo additional surgeries.
After he was cleared to return to work with his employer, Palermo was tested for drugs by LTI on September 9, 2006. The plaintiffs allege that the drug test violated LTI's published work rules, and that LTI knew Palermo was still undergoing treatment and taking medication as a result of his work-related injury. The Complaint alleges that although the tests came back negative, LTI told Palermo and others that Palermo had tested positive for cocaine and that he was being terminated. Defendant Brogan, who administered the test, and defendant Drew, who furnished the results, are alleged...
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