Snadon v. Sew-Eurodrive Inc.

• Decision Date: 15 November 2019
• Docket Number: Civil Action No. 1:19-CV-02915-SDG
• Citation: 421 F.Supp.3d 1360
• Parties: Tiffany SNADON, Plaintiff, v. SEW-EURODRIVE INC., Joseph Tetzel, John Doe 2 and John Doe 3, and Vinion L. Robinson, Jr., Defendants.
• Court: U.S. District Court — Northern District of Georgia

421 F.Supp.3d 1360

Tiffany SNADON, Plaintiff,

v.SEW-EURODRIVE INC., Joseph Tetzel, John Doe 2 and John Doe 3, and Vinion L. Robinson, Jr., Defendants.

Civil Action No. 1:19-CV-02915-SDG

United States District Court, N.D. Georgia, Atlanta Division.

Signed November 15, 2019

Andrew Lee Hagenbush, Christopher J. Graddock, Keenan R. S. Nix, Morgan & Morgan, PLLC, Atlanta, GA, for Plaintiff.

Andrew D. Horowitz, Trevor Everton Brice, Drew Eckl & Farnham, Atlanta, GA, for Defendants.

ORDER

Steven D. Grimberg, United States District Court Judge

This case comes before the Court on Plaintiff's Motion to Remand [ECF 11], Defendant Vinion Robinson's Motion for Summary Judgment [ECF 4], Plaintiff's Motion to Stay Adjudication of Defendant Robinson's Motion for Summary Judgment [ECF 5], Defendants' Motion to Strike or Disregard Affidavit of Andrew Hagenbush [ECF 19], and Defendants' Motion for Leave to File Sur-Reply regarding the same [ECF 20]. For the reasons stated below, Plaintiff's motion to remand is DENIED WITHOUT PREJUDICE , Defendant Robinson's motion for summary judgment is DENIED WITHOUT PREJUDICE , Plaintiff's motion to stay adjudication is DENIED AS MOOT , Defendants' motion to strike or disregard the affidavit is GRANTED, and Defendants' motion to file a sur-reply is GRANTED .

I. BACKGROUND

This matter stems from an incident at the Georgia World Congress Center ("GWCC") on April 6, 2018 [ECF 3]. According to the Amended Complaint, on the date of the incident Plaintiff was employed by Nth Degree [ECF 3, ¶ 8]. As part of her responsibilities for Nth Degree, she was helping Defendant SEW-Eurodrive's employees assemble a trade show booth at the GWCC [ECF 3, ¶ 10]. While working with the SEW-Eurodrive employees, Plaintiff helped construct a latticework structure [id. ]. One of the specialized tools used in the construction was left on the structure when the structure was elevated to a height of at least ten feet [ECF 3, ¶ 14]. The tool then fell from its elevated height and hit Plaintiff on the head, causing her injuries [ECF 3, ¶ 16].

On July 11, 2018, Plaintiff filed a negligence action against Defendants SEW-Eurodrive, Inc.; Joseph Tetzel; William Huffstetler; and John Doe 1 through John Doe 3 in the State Court of Fulton County, Georgia [ECF 1-1]. Fulton County then granted Defendants' motion to transfer the action to Oconee County because (now former Defendant) Huffstetler, the only Defendant named in the original complaint who is a Georgia resident, lived in Oconee County [ECF 1, ¶ 7-9]. Plaintiff agreed to voluntarily dismiss Huffstetler from the case after depositions and affidavits demonstrated that Huffstetler could not be held liable for the incident that led to this lawsuit [ECF 1, at 5-8; ECF 1-9; ECF 5, at 5]. Before Huffstetler was dismissed, Plaintiff filed the Amended Complaint naming Vinion Robinson as one of the John Doe defendants [ECF 3]. Defendant Robinson is also a Georgia resident [ECF 3, ¶ 6].

On June 25, 2019, Defendants removed the case to this Court pursuant to 28 U.S.C. § 1441 based on diversity jurisdiction under 28 U.S.C. § 1332 [ECF 1].¹ Defendants' removal was timely following Huffstetler's dismissal from the case. See 28 U.S.C. § 1446 (allowing removal within 30 days after case first becomes removable, as long as it has not been more than one year following commencement of the action). Defendants concede that 28 U.S.C. § 1332 requires complete diversity of citizenship between the parties, which is not present here since Defendant Robinson and Plaintiff are both Georgia residents [ECF 1, ¶ 27]. However, Defendants claim that Robinson was fraudulently joined in order to prevent complete diversity and that the Court should therefore disregard his citizenship for purposes of diversity jurisdiction [ECF 1, ¶ 28].

On July 24, 2019, Plaintiff filed her Motion to Remand [ECF 11], arguing that the Court does not have diversity jurisdiction because Defendants have not shown that Robinson was fraudulently joined [ECF 11]. Defendants filed their opposition brief on August 2 [ECF 14]. On August 9, Plaintiff filed her reply [ECF 16]. On August 23, Defendants filed a Motion for Leave to File Sur-Reply [ECF 20] because, as Defendants point out, Plaintiff's reply brief raises new arguments.

On August 22, after the completion of primary briefing on the motion to remand, Plaintiff filed the Affidavit of Andrew Hagenbush [ECF 18], ostensibly to support her motion. The next day, Defendants objected and moved to strike or disregard the affidavit [ECF 19]. Plaintiff did not respond to Defendants' motion.

II. MOTION TO STRIKE OR DISREGARD AFFIDAVIT

The Court begins by addressing the pending motion to strike or disregard the Hagenbush affidavit, as the outcome of this motion determines the evidence before the Court on the pending motion to remand. As a preliminary matter, the Court notes that motions to strike apply only to pleadings. Fed. R. Civ. P. 12(f). Therefore, the Court will consider Defendants' motion as a motion to disregard the affidavit and grant it. See Exceptional Mktg. Grp., Inc. v. Jones , 749 F. Supp. 2d 1352, 1358 (N.D. Ga. 2010).

In order to understand the Court's decision to disregard the Hagenbush affidavit, some discussion of the arguments made by the parties about remand is necessary. The motion to remand alleges that removal based on fraudulent joinder is premature because Plaintiff has not had the opportunity to depose Defendant Robinson and, thereby, gather evidence of his involvement in the incident [ECF 11, at 2]. However, before Defendants filed their opposition to removal, Defendant Robinson was deposed [ECF 14, at 2 n.1]. That deposition testimony and a prior affidavit submitted by Defendants state that Robinson was not present at the convention on the date of the accident and he was not involved in the construction of the booth or oversight thereof [ECF 14-1, ¶¶ 4, 5; ECF 21, lns. 20:20, 31:19–21]. Plaintiff's reply in support of remand alludes to the fact that Defendant Robinson was recently deposed [ECF 16, at 3]. She then modifies the argument made in her opening brief (i.e. , seeking time to depose Robinson) to requesting more time to conduct discovery in order to rebut Defendant Robinson's deposition testimony [ECF 16, at 3].²

Neither the original remand motion nor Plaintiff's reply brief mention the possibility of providing additional affidavits to support Plaintiff's claims against Robinson. Nevertheless, thirteen days after Plaintiff submitted her reply brief, Plaintiff's counsel filed an affidavit in which he himself is the affiant [ECF 18]. The affidavit attests that counsel had spoken to Lee-Micah Alexander, a witness who claims that he saw Defendant Robinson at the construction site on the date of Plaintiff's accident [ECF 18; ECF 18-1]. Notably, during her deposition, Plaintiff stated that Alexander is her boyfriend and they live together [ECF 1-5]. Defendants' motion to disregard the affidavit argues that the affidavit should not be considered by the Court because it was untimely filed and consists of inadmissible hearsay [ECF 19, at 2]. Plaintiff did not respond to the motion to disregard.

As indicated above, the Court agrees with Defendants that the Hagenbush affidavit should be disregarded. First, the affidavit was untimely and improper. Plaintiff did not file it with her original motion or her reply brief. Fed. R. Civ. P. 6(c)(2) ("Any affidavit supporting a motion must be served with the motion.") (emphasis added). Moreover, the affidavit was filed 20 days after Defendants filed their response. It was therefore filed six days after the deadline for Plaintiff's reply. LR 7.1(C), NDGa ("[T]he reply must be served not later than fourteen (14) days after service of the responsive pleading."). Nor did Plaintiff seek leave of Court to file the affidavit or provide any excusable explanation for her failure to timely file the affidavit. Fed. R. Civ. P. 6(b) ("[T]he court may, for good cause, extend the time ... on motion made after the time has expired if the party failed to act because of excusable neglect."). Therefore, the Court concludes that the affidavit was untimely and improperly filed.

Second, the affidavit contains inadmissible hearsay. Hearsay is a statement made by the declarant, not while testifying at the current trial or hearing, that is offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801. Hearsay is generally inadmissible. Fed. R. Evid. 802. While there are many hearsay exceptions, Plaintiff has not suggested that there is any applicable exception here as she failed to respond to Defendants' motion to disregard the affidavit. Plaintiff has not shown why it would be appropriate for the Court to consider the affidavit. Additionally, given that Alexander was likely subject to Plaintiff's control, it is unclear why Plaintiff's counsel served as the affiant instead of Alexander, when counsel did not have personal knowledge of the underlying facts. Fed. R. Evid. 602 (requiring testifying witnesses to have personal knowledge of the matter); see also Exceptional Marketing , 749 F. Supp. 2d at 1358 (declaration may only be considered to extent it is based on personal knowledge). While Plaintiff's counsel has personal knowledge of what Alexander told him, he lacks personal knowledge of what Alexander saw on the day in question.

For all of the reasons stated above, the Court GRANTS Defendants' motion to disregard the affidavit [ECF 19].

III. MOTION TO REMAND

a. Legal Standard

"[W]hen an action is removed from state court, the district court first must determine whether it has original jurisdiction over the plaintiff's claims." Univ. of S. Ala. v. Am. Tobacco Co. , 168 F.3d 405, 410 (11th Cir. 1999). Federal courts are courts of limited jurisdiction. District courts have original jurisdiction over all civil actions arising under the United States Constitution, as well as its laws and treaties (i.e. , federal question jurisdiction). 28...