Parse v. Brunswick Cellulose, Inc.
| Decision Date | 14 October 2015 |
| Docket Number | CV 215-43 |
| Court | U.S. District Court — Southern District of Georgia |
| Parties | ANTHONY PARSE and KAYLA PARSE, Plaintiffs, v. BRUNSWICK CELLULOSE, INC. also known as BRUNSWICK CELLULOSE, LLC and GERALD BAKER, Defendants. BRUNSWICK CELLULOSE, INC. also known as BRUNSWICK CELLULOSE, LLC, Third-Party Plaintiff, v. OWENS AND PRIDGEN, INC. and NATIONAL TRUST INSURANCE COMPANY, Third-Party Defendants. |
Third-Party Defendant National Trust Insurance Company ("National Trust") removed this action to this Court on April 3, 2015. Dkt. No. 1. This matter now comes before the Court on two Motions to Remand separately filed by Defendant/Third-PartyPlaintiff Brunswick Cellulose, Inc., also known as Brunswick Cellulose, LLC ("Brunswick Cellulose") (dkt. no. 13), and Plaintiffs Anthony and Kayla Parse ("Plaintiffs") (dkt. no. 14). National Trust has filed a consolidated Response to the Motions to Remand (dkt. no. 17), and Brunswick Cellulose has filed a Reply thereto (dkt. no. 19). Notably, Defendant Gerald Baker ("Baker") and Third-Party Defendant Owens and Pridgen, Inc. ("OPI") have not weighed in or otherwise taken a position on the issue of remand.
For the reasons that follow, Brunswick Cellulose's Motion to Remand (dkt. no. 13) is GRANTED in part and DENIED in part as follows: the Motion is GRANTED to the extent that it requests a remand of this case to state court, and the Motion is DENIED insofar as it seeks to have National Trust pay its costs and expenses, including attorney's fees, incurred as a result of the removal. Additionally, Plaintiffs' Motion to Remand (dkt. no. 14) is GRANTED in its entirety.
BACKGROUND
On September 8, 2014, Plaintiffs filed suit against Brunswick Cellulose and its employee, Baker, in the Superior Court of Glynn County, Georgia. Dkt. No. 1-1, pp. 18-24. Plaintiffs' Complaint alleges that on April 9, 2014, Plaintiff Anthony Parse, an employee of OPI, was injured while performing work at Brunswick Cellulose's pulp mill in Brunswick, Georgia.Id. at p. 19. According to the Complaint, Plaintiff Anthony Parse was to perform work on a chlorate pipeline at the mill, pursuant to an agreement between OPI and Brunswick Cellulose. See id. Plaintiffs seek to hold Brunswick Cellulose and Baker liable, on the grounds of negligence and premises liability, for Plaintiff Anthony Parse's injuries, as well as Plaintiff Kayla Parse's alleged loss of consortium. Id. at pp. 20-22.
Brunswick Cellulose filed an Answer on October 22, 2014, denying that it or any of its agents acted negligently, and asserting that the negligence of Plaintiff Anthony Parse—and perhaps the negligence of other persons or entities for whom Brunswick Cellulose is not responsible—caused Plaintiff Anthony Parse's injuries. Id. at pp. 26-32. Shortly thereafter, Brunswick Cellulose tendered the defense to OPI and its insurance provider, National Trust. Id. at p. 6. OPI and National Trust refused to accept the tender. Id. at p. 10. Accordingly, on February 27, 2015, Brunswick Cellulose filed a Third-Party Complaint against OPI and National Trust alleging that they breached their duties to defend and indemnify Brunswick Cellulose. Id. at pp. 4-14.
Id. at pp. 7-8, 10 (alterations in original) (suspension points in original).1 Paragraph 6(a) further provides that an exception to OPI's contractual duty to indemnify arises if the subject incident resulted "from the sole (100%) negligence of [Brunswick Cellulose]." Id. at p. 36. Additionally, the Third-Party Complaint states that Paragraphs 6 and 11 of the Master Agreement require OPI to procure and maintain, at its own expense, "insurance covering the indemnity provisions" and "nam[ing] [Brunswick Cellulose] as an additional insured." Id. at p. 8 (). The Third-Party Complaint asserts that OPI purchased a Commercial General Liability Policy (the "Policy") from National Trust naming Brunswick Cellulose as an additional insured. Id.
Brunswick Cellulose claims that National Trust's and OPI's refusal to defend and indemnify Brunswick Cellulose, whenBrunswick Cellulose denies all liability, constitutes a breach of the Policy and Paragraph 6(a) of the Master Agreement, respectively. Id. at pp. 9-11. Brunswick Cellulose also asserts that if it is not covered under the Policy, then OPI has breached its duty to maintain adequate insurance coverage for Brunswick Cellulose under Paragraphs 6 and 11 of the Master Agreement. Id. at p. 11. Thus, Brunswick Cellulose contends that National Trust and OPI are jointly, severally, or individually liable to Brunswick Cellulose for any judgment entered in favor of Plaintiffs. Id. at p. 12.2
OPI and National Trust received service of the Third-Party Complaint on March 3, 2015, and March 4, 2015, respectively. Id. at p. 2; Dkt. No. 13-1, p. 3. On April 3, 2015, National Trust removed the action to this Court on the basis of diversity of citizenship. Dkt. No. 1. In the Notice of Removal, National Trust states that Brunswick Cellulose (a resident of Delaware and Georgia) asserts third-party claims that are "separate and independent" from Plaintiffs' tort claims, against National Trust (a resident of Indiana and Florida) and OPI (a Georgia resident) for an amount in excess of $75,000. Id. at ¶¶ 3, 5-7, 14. Although Brunswick Cellulose and OPI are both Georgiaresidents, National Trust nevertheless maintains that removal is proper under the fraudulent joinder exception to the complete diversity rule. Id. at ¶ 8. That is, National Trust contends that Brunswick Cellulose joined OPI with National Trust for the sole purpose of destroying complete diversity, as the Third-Party Complaint neither alleges that OPI and National Trust are liable jointly, severally, or in the alternative, nor demonstrates that OPI has any real connection to this case. Id. at ¶¶ 9-13.
On May 4, 2015, Brunswick Cellulose and Plaintiffs separately filed the instant Motions seeking to remand this case to the Superior Court of Glynn County, Georgia. See Dkt. Nos. 13-14. Contemporaneously with the filing of its Motion, Brunswick Cellulose filed a Notice of Intent to Assert Fault pursuant to O.C.G.A. § 51-12-33 against OPI. Dkt. No. 12.
DISCUSSION
An action filed in state court may be removed to federal district court if the case could have been brought in federal district court originally. See 28 U.S.C. § 1441(a) (). Upon the removal of an action to federal district court, 28 U.S.C. § 1447(c) ("Section 1447(c)") "implicitly recognizes two bases upon which a district court may . . . order a remand: when there is (1) a lack ofsubject matter jurisdiction or (2) a defect other than a lack of subject matter jurisdiction." Hernandez v. Seminole Cty., 334 F.3d 1233, 1236-37 (11th Cir. 2003) (quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1252-53 (11th Cir. 1999)).3
Relevant here is that a federal district court has original jurisdiction "over all civil actions where the amount in controversy exceeds $[75,000] and the action is between the citizens of different states." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998) (citing 28 U.S.C. § 1332(a)(1)). Importantly, "[d]iversity jurisdiction requires complete diversity; every plaintiff must be diverse from every defendant." Id. (citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1355 (11th Cir. 1996)).
A "defect other than a lack of subject matter jurisdiction" might include noncompliance with certain procedural requirements for the removal of a case. See Hernandez, 334 F.3d at 1236-37 (quoting Snapper, Inc., 171 F.3d at 1252-53). For example, the"forum-defendant rule" provides that "a state-court action that is otherwise removable to federal court solely on the basis of diversity of citizenship is not removable if any of the 'parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'" Goodwin v. Reynolds, 757 F.3d 1216, 1218 (11th Cir. 2014) (emphasis in original) (quoting 28 U.S.C. § 1441(b)). Additionally, the unanimous consent rule states that "all defendants who have been properly joined and served must join in or consent to the removal of the action." 28 U.S.C. § 1446(b)(2)(A).
Notably, the doctrine of fraudulent joinder provides an exception to the jurisdictional requirement of complete diversity as well as to the aforementioned procedural requirements. See Triggs, 154 F.3d at 1287 (complete diversity requirement); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993) (unanimous consent rule); Yount v. Shashek, 472 F. Supp. 2d 1055, 1059 (S.D. Ill. 2006) (forum-defendant rule). Pursuant to this doctrine, a court evaluating whether a jurisdictional or procedural defect warrants remand must not consider the citizenship or consent—whichever applicable—of a nondiverse defendant that has been joined to the action "solely in order to defeat federal diversity jurisdiction." See Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (citing Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278,1281 (11th Cir. 2006)); see also Triggs, 154 F.3d at 1287; Jernigan, 989 F.2d at 815; Yount, 472 F. Supp. 2d at 1059. In such circumstances, the nondiverse def...
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