Peterson v. BMI Refractories, Inc.

• Decision Date: 26 June 1996
• Docket Number: No. CV-95-N-2260-S.,CV-95-N-2260-S.
• Citation: 938 F. Supp. 767
• Parties: Jimmie L. PETERSON, et al., Plaintiffs, v. BMI REFRACTORIES, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

938 F. Supp. 767

Jimmie L. PETERSON, et al., Plaintiffs, v. BMI REFRACTORIES, INC., Defendant.

No. CV-95-N-2260-S.

United States District Court, N.D. Alabama, Southern Division.

June 26, 1996.

Samuel Fisher, Elizabeth Evans Courtney, Gordon Silberman Wiggins & Childs, Birmingham, AL, for plaintiffs.

John J. Coleman, III, Marcel L. Debruge, Balch & Bingham, Birmingham, AL, Richard A. Meelheim, Meelheim & Alexander PC, Birmingham, AL, for defendant.

Memorandum of Opinion

EDWIN L. NELSON, District Judge.

I. Introduction.

This matter comes before the court on motion of the defendant to stay certain proceedings in the Circuit Court of Montgomery County, Alabama. The motion was filed on May 22, 1996 and, because of the urgent nature of the relief requested, the court conducted a hearing on the following day, Thursday, May 23, 1996. After a telephone conference with the undersigned, the state court judge who was conducting the proceedings that were the subject of the motion agreed to withhold further action until this court's ruling. Since the aforesaid hearing, plaintiffs' counsel has been allowed an opportunity to file a written response to the motion and has done so. The defendant has replied to that response.

In addition to matters raised directly by the parties, the court believes it is compelled sua sponte to address other matters, including questions regarding its own jurisdiction.¹

II. Findings of Fact.

A. Proceedings in the Circuit Court of Jefferson County, Alabama.

Plaintiffs Jimmie L. Peterson and Alonzo Reese initiated this action by filing a complaint in the Circuit Court of Jefferson County, Alabama on February 2, 1995, case number CV-00797. They asserted claims for race discrimination under the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981. They also asserted breach of contract and assault and battery claims. Mr. Samuel Fisher, their attorney, listed the defendant's address as being "B.M.I. Refractories, Inc., 268 Oxmoor Court, Birmingham, Al. 35209." The clerk of the Jefferson County court notified Mr. Fisher by mail dated April 12, 1995, that the summons and complaint had been returned "not found" and requested that he furnish the court with a "corrected address." An alias summons listing the defendant's address as "BMI Refractories, Inc., 4120 Wall Street, Montgomery, Alabama 36106" was issued on April 25, 1995. It was returned unserved on April 28, 1995, with the notation that "BMIR Inc. Not agent." Judge Wayne Thorn entered an order on June 9, 1995, by which the action was dismissed without prejudice for plaintiffs' failure to perfect service within the allowed time.

The court clerk notified Mr. Fisher on June 23, 1995, that the action had been dismissed and, on June 28, 1995, the plaintiffs moved the court to reinstate the action and for the appointment of a special process server. Judge Thorn granted the motions by order of July 31, 1995, and also ordered that the case be "transferred to the Circuit Court of Montgomery, Alabama." The case was transferred on August 10, 1995.² Meanwhile, on August 3, 1995, the summons and complaint, issued out of the Circuit Court of Jefferson County, Alabama, were properly served upon the defendant in Jefferson County, Alabama.

On September 1, 1995, attorney Richard Meelheim filed a notice of removal in this court, asserting original jurisdiction under 28 U.S.C. § 1331 and removal jurisdiction under 28 U.S.C. § 1441. More or less simultaneously Mr. Meelheim filed a document entitled "Notification of Filing Notice of Removal" with the Clerk of the Circuit Court of Jefferson County, Alabama. The notice was addressed to "The Plaintiffs and Their Attorneys and the Clerk of Courts, Circuit Court for Jefferson County, State of Alabama." The notice contained no certificate of service but had the case numbers from both this court and the Circuit Court of Jefferson County, Alabama.³

B. Proceedings in the Circuit Court of Montgomery County, Alabama.

Records of proceedings had in the Circuit Court of Montgomery County, Alabama demonstrate the following pertinent facts:

On October 2, 1995, Circuit Judge Sally Greenhaw wrote to Mr. Fisher, "The Summons and Complaint have not been served in the above styled case. The Plaintiff shall respond within ten days of the court's letter, or the case will be dismissed." A copy was sent to "P.O. Box 1667, Mont. 36102, 832-4950." The record does not show where this address came from or the identity of the intended addressee. A docket entry dated October 3, 1995, reflected the letter as an "Order." On October 12, 1995, Mr. Fisher responded with his own letter, stating, "This will confirm our telephone conversation of this date with the Clerk in which we advised that the above referenced case has been removed to Federal Court by the Defendants (sic)."

On February 22, 1996, Circuit Judge Eugene Reese entered an order setting the case for a "STATUS/SCHEDULING" conference at 2:00 p.m. on March 20, 1996. Copies of the order were sent to "Samuel Fisher" and "BMI Refractories, 220 Greenleaf Dr., Montgomery, AL 36108." There is a handwritten note on one copy of the order which states, "Peg called & talked w/ law clerk & she said disregard the notice. 3/R/98." A docket entry dated February 22, 1996, reflects the entry of this order.

On March 12, 1996, "Vonda McLeod," apparently an employee of Judge Reese, communicated by facsimile to Mr. Fisher's office, "Peggy — this case is currently on our pending list here in Mtgy. Circuit Court. We have no notice of removal in our office, the Circuit Clerks (sic) office or the court file. Please advise!" The next document in the record submitted to this court is entitled "Application, Affidavit, and Entry of Default and Default Judgment," which was submitted by Mr. Fisher to the court in Montgomery. Under oath, Mr. Fisher stated: "That the defendant was served with a copy of the Statement of Claim or Complaint on (date) August 3, 1995.... and has failed to answer or otherwise defend itself against the plaintiff's (sic) claim in this case (although a defective removal was attempted on September 1, 1995.)"

On April 10, 1996, there was a letter from Peggy B. Turner as "Secretary to Samuel Fisher" to Debra P. Hackett at the Montgomery court in which she stated, "Pursuant to my telephone conversation with Vonda in Judge Reese's office, please find enclosed a copy of the summons in the above referenced case, showing that service was perfected on August 3, 1995. It is my understanding that your office does not have a copy of this summons." Judge Reese entered a default judgment against the defendant on May 9, 1996, and set a hearing on damages for May 29, 1996, at 11:00 a.m. Copies were sent to Samuel Fisher and "BMI Refractories, 268 Oxmoor Court, Birmingham, Al. 35209."

C. Proceedings in the United States District Court.

Following removal to this court on September 1, 1995, the parties have engaged in extensive litigation. A copy of the clerk's docket entries is attached to this opinion as Exhibit A. Editor's Note: Exhibit A not included for purposes of publication On October 18, 1995, the plaintiffs were allowed to amend their complaint. On November 29, 1995, counsel participated in a Rule 16(b) scheduling conference and an order setting a schedule was entered.

On December 28, 1995, after receiving briefs from both sides, the court granted the defendant's motion for judgment on the pleadings as to one claim. The plaintiffs, through Mr. Fisher, filed a notice of appeal on January 25, 1996. On February 6, 1996, Mr. Fisher designated the record on appeal.

The court referred the case to mediation on April 3, 1996; a mediator was selected; and the case was unsuccessfully mediated on June 3, 1996. Additionally, the parties have apparently engaged in trial preparations with a view toward an established trial date of November 12, 1996.

The defendant filed its motion to stay the state court proceedings at 5:05 p.m. on Wednesday, May 22, 1996, alleging that it had "discovered Judge Reese's May 9, 1996, order by accident when one copy was forwarded to it from a former Jefferson County Address." As noted earlier, Judge Reese had set the damages hearing for 11:00 a.m. on Wednesday, May 29, 1996. Intervening between the filing of the motion and the scheduled hearing was Friday, May 24, when the court was scheduled to be out of town; the weekend; and Monday, May 27, 1996, the Memorial Day holiday. The court conducted a hearing on the motion at 1:30 p.m. on Thursday, May 23, 1996.

At no time before the defendant's motion to stay was filed did plaintiffs' counsel undertake to inform the court that this action was claimed to have remained pending in the Circuit Court of Montgomery County, Alabama. This court's jurisdiction was never questioned by motion to remand or otherwise until the hearing of May 23, 1996. The defendant claims, and Mr. Fisher does not deny, that Mr. Fisher never informed defendant's counsel that proceedings were ongoing in Montgomery, even though he was aware that the defendant was represented by the attorney who filed the motion to stay.

III. Discussion.

A. Removal Jurisdiction.

In the face of Mr. Meelheim's affidavit and a stamped and dated copy of the notice of removal, Mr. Fisher insists that defendant's counsel did not effectively remove the action to this court because notice of the removal was not given to the state court as required by 28 U.S.C. § 1446(d). As noted above, the record evidence is that the notice was filed in the Circuit Court of Jefferson County, Alabama, the court from which the summons and complaint issued. He asserts that after investigation, he reached the conclusion that the action had not been properly removed and that jurisdiction remained in the state court.

With respect to Mr. Fisher, that claim is simply not credible. The action was removed to this court on September 1, 1995. The plaintiffs did not within thirty (30) days, or at...