Sullivan v. Leaf River Forest Products, Inc., Civ. A. No. S91-0028(G)

• Decision Date: 29 August 1991
• Docket Number: Civ. A. No. S91-0028(G),S91-0033(G).
• Citation: 791 F. Supp. 627
• Parties: Horace T. SULLIVAN, et al., Plaintiffs, v. LEAF RIVER FOREST PRODUCTS, INC., et al., Defendants. Horace T. SULLIVAN, et al., Plaintiffs, v. LEAF RIVER FOREST PRODUCTS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

791 F. Supp. 627

Horace T. SULLIVAN, et al., Plaintiffs, v. LEAF RIVER FOREST PRODUCTS, INC., et al., Defendants.

Horace T. SULLIVAN, et al., Plaintiffs, v. LEAF RIVER FOREST PRODUCTS, INC., et al., Defendants.

Civ. A. Nos. S91-0028(G), S91-0033(G).

United States District Court, S.D. Mississippi, S.D.

August 29, 1991.

Robert A. Pritchard, Pascagoula, Miss., William McDaniel, John F. McDaniel, Birmingham, Ala., John J. Barrow, Franklin L. Lewis, Gene Mac Winburn, Athens, Ga., Richard W. Hamilton, Pascagoula, Miss., Irwin W. Stolz, Jr., David N. Baker, Seaton D. Purdom, Atlanta, Ga., for plaintiffs.

Joe Colingo, Pascagoula, Miss., for Bill Brabston.

James H. Heidelberg, Pascagoula, Miss., for Van Best.

Lee Davis Thames, Jackson, Miss., for Leaf River Forest Products, Richardson, Smith, Great Northern Nekoosa, Georgia Pacific.

R.T. Beard, III, Little Rock, Ark., for Intern. Paper Co.

MEMORANDUM OPINION

GEX, District Judge.

These causes are presently before the Court on the motion of the plaintiffs to remand these cases to the Chancery Court for Jackson County, Mississippi. The Court has duly considered the record in this action, in addition to the briefs of counsel, and, being fully advised in the premises, concludes as follows:

Plaintiffs filed this suit initially in the Chancery Court of Jackson County on December 20, 1990. The suit contains over 1,800 plaintiffs that seek damages and injunctive relief for alleged discharges by the named defendants of 2,3,7,8-tetrachlorodibenzo-p-dioxin and other compounds into the Leaf, Pascagoula and Escatawpa Rivers. The claims include negligence, nuisance, strict liability and purpresture. Defendants are named jointly and severally liable.

Petition for removal was filed on January 16, 1991 by the International Paper Co., Inc. (IP) defendants, based on diversity jurisdiction and the presence of a separate and independent claim. On the same day, the Georgia-Pacific Corporation (GP) defendants filed their notice for removal on federal question grounds. A joint consent to remove was filed on the same day. Plaintiffs filed a motion to remand on February 4, 1991. Plaintiffs assert several grounds for remanding their actions to state court, each of which will be discussed separately.

I. Timeliness of Removal Notice

First, the plaintiffs argue that remand is necessary because all defendants did not consent to removal within 30 days of service of the complaint on the first defendant. Plaintiffs correctly state that notice of removal must be filed within 30 days after the service of the summons upon the defendant. 28 U.S.C. § 1446(b). Where there are multiple defendants, all defendants must consent to the removal within 30 days after the first defendant is served. Getty Oil Corp. v. Insurance Co. of N.Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988).

Plaintiffs contend there was not a timely filed joint consent as required by 28 U.S.C. § 1446. If one defendant in a multiple defendant case files a timely removal petition, and subsequent to this filing and within the 30-day time limit, the other defendants file their own removal petitions or consent to the original petition, the requirements of § 1446 are met. Albonetti v. GAF Corp. Chemical Group, 520 F.Supp. 825, 828 (S.D.Tex.1981). Since defendants signed the joint consent to remove within a day of the first removal petition, removal was timely.

Plaintiffs also contend that because the joint consent was not served on plaintiffs until January 21, 1991, the date it was dispatched by mail, the late service makes the petition not timely perfected. The meaning of "prompt notice" is set out in Alpena Power Co. v. Utility Workers Union Local 286, 674 F.Supp. 1286, 1287 (E.D.Mich.1987). Relying on Rule 6(a) of the Federal Rules of Civil Procedure, the Alpena court held that notice filed within a period of less than 11 days fell within the purviews of promptness.¹ Note that under Rule 6(a), when computing time for periods of less than 11 days, intermediate Saturdays, Sundays, and legal holidays are excluded. Id. Since the arrival of the removal notice was on January 21, 1991, within six days of filing the notice of removal on January 16, 1991, the plaintiffs were timely notified of the removal and the removal was timely perfected.

II. Separate removals

Plaintiffs assert that because IP's and GP's removal petitions contain separate removal theories that this is not truly a jointly consented petition but rather alternative petitions. Courts are not required to limit their considerations to the allegations of jurisdictional fact contained within the removal petition. Rosario v. Waterman S.S. Corp., 158 F.Supp. 537 (S.D.N.Y. 1957). See McKinney v. Board of Trustees, 713 F.Supp. 185 (W.D.N.C.1989). Adams v. Lederle Lab., 569 F.Supp. 234, 242-46 (W.D.Mo.1983). A court may consider all applicable jurisdictional grounds sua sponte whether or not the grounds were raised by a party to the lawsuit. Since all applicable avenues of removal should be considered by the Court in deciding whether remand is proper, the differences in defendants' removal petitions do not affect the propriety of the removal petitions.

III. Plaintiffs Deny that Requisite Diversity Exists Between All Defendants and Plaintiffs

The two sets of defendants contain different bases for diversity jurisdiction. Each group of defendants will be separately addressed.

IP, Bill Brabston and Vance Best comprise one set of defendants. IP is a New York corporation, with its principal place of business in New York. Vance Best is the Superintendent-Technical & Environmental Services of the Moss Point Mill of IP. He is a resident of Alabama. Bill Brabston is Mill Manager at IP's Moss Point facility, and also an Alabama resident. IP's removal petition is based on diversity of citizenship under 28 U.S.C. § 1332(a) and the presence of a separate and independent claim joined with an otherwise non-removable claim under 28 U.S.C. § 1441(b) and (c).

Leaf River Forest Products (Leaf River), Warren Richardson, Acker Smith, Great Northern Nekoosa Corporation (Great Northern), and GP comprise the other set of defendants. GP's removal petition is based on federal question jurisdiction under 28 U.S.C. § 1441(a) and (b).

A. IP's Position Regarding Diversity

IP's removal is based on the federal diversity statute, 28 U.S.C. § 1332, which states in relevant part:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between — (1) citizens of different States; * * *

It is axiomatic that there must be complete diversity of citizenship (i.e., no plaintiff and no defendant may be a citizen of the same state) before a district court accepts diversity jurisdiction pursuant to the removal statute, 28 U.S.C. § 1441. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). The plaintiffs assert that this Court must remand these actions because the Court lacks subject matter jurisdiction. Plaintiffs contend that the presence of defendants Brabston and Best destroys the Court's diversity jurisdiction since the plaintiffs allege that these defendants are citizens of Mississippi. The defendants have the burden of proving that complete diversity exists since they are the ones seeking to invoke this Court's diversity jurisdiction. See Getty Oil Co., 841 F.2d at 1259; Aetna Casualty & Sur. Co. v. Hillman, 796 F.2d 770, 775 (5th Cir.1986). Plaintiffs' pleadings state that the individual defendants Brabston and Best are resident citizens of Mississippi. IP provides affidavit evidence that, in fact, Brabston and Best are residents of Alabama; therefore the potential for diversity jurisdiction exists.

However, IP states that plaintiffs manipulated the facts of their pleadings in an effort to defeat the appearance of diversity. Plaintiffs' complaint names all plaintiffs as residents of Mississippi. Defendant contends that the "false" allegation in plaintiffs' pleadings that Brabston and Best are "resident citizens" of Mississippi; the "failure to investigate or deliberate misstatement of citizenship" of Brabston and Best; and the fact that several plaintiffs are residents of Alabama, while the pleadings state that all plaintiffs are residents of Mississippi, amounts to a "fraudulent attempt to divert diversity jurisdiction".

Of course, the citizenship of fraudulently joined defendants is to be disregarded when determining if a court has diversity jurisdiction. See Miami Pipe Line Co. v. Panhandle E. Pipeline Co., 384 F.2d 21, 27 (10th Cir.1967); Dew v. Illinois Cent. Gulf R.R., 621 F.Supp. 153, 155 (S.D.Miss. 1985). IP asserts that the Court should ignore the citizenship of Brabston and Best which would allow the Court to retain jurisdiction. However, if fraudulent joinder is not found, and there is no diversity between the IP defendants and plaintiffs, the Court must remand the case.

Federal courts must find a defendant properly joined if there is a possibility that a state court would find a cause of action stated against the in-state defendants. Gray v. United States Fidelity and Guar., 646 F.Supp. 27, 29 (S.D.Miss.1986). The Fifth Circuit has discussed the burden of proving fraudulent joinder extensively, stating:

The burden of proving a fraudulent joinder is a heavy one. The removing party must prove that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court.

Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983) (citations omitted), reh'g denied 714 F.2d 137, cert. denied 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984). In other words, could a state court possibly enter a valid judgment against the defendant who is alleged to have been fraudulently joined?

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