Thompson v. Quality Carriers, Inc.

• Decision Date: 24 April 2015
• Docket Number: CIVIL ACTION NO. 5:14CV127
• Court: U.S. District Court — Northern District of West Virginia
• Parties: BERNARD L. THOMPSON, Plaintiff, v. QUALITY CARRIERS, INC., CHEMICAL LEAMAN TANK LINES, INC., UNION CARBIDE CORP., E.I. DUPONT DE NEMOURS AND CO., MONSANTO CO., FMC CORP., HONEYWELL INT'L INC., and HOWARD MAX GALLOWAY, Defendants.

BERNARD L. THOMPSON, Plaintiff, v. QUALITY CARRIERS, INC., CHEMICAL LEAMAN TANK LINES, INC., UNION CARBIDE CORP.,

E.I. DUPONT DE NEMOURS AND CO., MONSANTO CO., FMC CORP., HONEYWELL INT'L INC.,

and HOWARD MAX GALLOWAY, Defendants.

CIVIL ACTION NO. 5:14CV127

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

April 24, 2015

(Judge Keeley)

MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO. 32] AND GRANTING MOTION TO DISMISS [DKT. NO. 9]

Pending before the Court are the motion to remand filed by the plaintiff, Bernard L. Thompson ("Thompson") (Dkt. No. 32), and the motion to dismiss filed by the defendant, Howard Max Galloway ("Galloway") (Dkt. No. 9). For the reasons that follow, the Court DENIES the motion to remand (Dkt. No. 32), GRANTS the motion to dismiss (Dkt. No. 9), and DISMISSES Galloway.

BACKGROUND

Thompson worked for defendant Chemical Leaman Tank Lines ("Chemical Leaman") as a tank truck driver from the early 1960s until 1989.¹ In his capacity as a tank truck driver, Thompsontransported and was allegedly exposed to benzene and chlorobenzene, among other harmful chemicals, at the Chemical Leaman facility in Institute, West Virginia, as well as at other facilities owned by the co-defendants.

Thompson transported chemicals from Chemical Leaman's place of business to the facilities of defendant Union Carbide Corporation ("Union Carbide") in Institute and South Charleston, West Virginia; of defendant E.I. du Pont de Nemours and Co. ("DuPont") in Belle, West Virginia; of defendant FMC Corporation ("FMC") in South Charleston, West Virginia; of defendant Honeywell International f/k/a AlliedSignal, Inc. ("Honeywell") in Nitro and Moundsville, West Virginia; and, of defendant Monsanto Company ("Monsanto") in Nitro, West Virginia.

Galloway was the Superintendent of Environmental Health, Safety and Product Acceptability at Monsanto's Nitro, West Virginia, plant from 1977 until his retirement in 1985. In Count Four, Thompson alleges that Galloway negligently caused Thompson's exposure to impermissibly high and chronic levels of benzene, and negligently failed to provide adequate respiratory or other protective equipment. As a result, Thompson alleges that hedeveloped anemia and myelofibrosis, and has suffered severe illness and incurred medical expenses as a consequence.

On August 8, 2014, Thompson filed suit in the Circuit Court of Marshall County, West Virginia (Dkt. No. 1-3). On September 19, 2014,² Monsanto removed the case to this Court, invoking its diversity jurisdiction. Monsanto claimed that all corporate defendants were diverse from Thompson, who resides in West Virginia (Dkt. No. 1 at 3-4). Although Galloway is a citizen of West Virginia, Monsanto's removal papers alleged that had been fraudulently joined as a party in order to defeat diversity. Id. at 4.

On September 26, 2014, Galloway filed a motion to dismiss, claiming he owed no duty to Thompson because he was not responsible for the safety of third parties delivering materials to the Monsanto plant, and asserting that such responsibility belonged to another Superintendent (Dkt. No. 9). In his response to that motion, Thompson asserted that Galloway owed him a common law duty of care because he had affirmatively created an unreasonable risk of harm by exposing him to benzene vapors (Dkt. No. 30 at 3-4). Galloway's reply argued that the only duties he could possibly haveowed to Thompson stemmed from Galloway's job duties, which expressly excluded the safety of third parties (Dkt. No. 31 at 2).

On October 17, 2014, while the motion to dismiss was still pending,³ Thompson filed a motion to remand the case to state court (Dkt. No. 32). Monsanto opposed the motion, again relying on this Court's diversity jurisdiction and its argument that Galloway had been fraudulently joined (Dkt. No. 34). Later, on December 12, 2014, pursuant to an order of the Court, Thompson provided a more definite statement of the factual basis of his claims against Galloway (Dkt. No. 38). All motions are now fully briefed and ready for disposition.

LEGAL STANDARD

When an action is removed from state court, a federal district court must determine whether it has original jurisdiction over the plaintiff's claims. Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377, 114 S.Ct. 1673 (1994). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree." Id.

Federal courts have original jurisdiction over primarily two types of cases, (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving diversity of citizenship under 28 U.S.C. § 1332. When a party seeks to remove a case based on diversity of citizenship, that party bears the burden of establishing "the amount in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between citizens of different states." 28 U.S.C. § 1332. Courts should resolve any doubt "about the propriety of removal in favor of retained state court jurisdiction." Marshall v. Manville Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993).

The doctrine of fraudulent joinder is a narrow exception to the complete diversity requirement. Jackson v. Allstate Ins. Co., 132 F.Supp.2d 432, 433 (N.D.W. Va. 2000). If the doctrine applies, the Court can exercise removal jurisdiction even though a non-diverse party is a defendant. Id. (citing Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). The Court can disregard the citizenship of and dismiss the non-diverse defendant, thereby retaining jurisdiction over the case. Mayes, 198 F.3d at 461.

The removing party bears the "heavy burden of showing that there is no possibility of establishing a cause of action against[a] non-diverse party" by clear and convincing evidence. Jackson, 132 F.Supp.2d at 433 (citing Hartley v. CSX Transp. Inc., 187 F.3d 422, 424 (4th Cir. 1999)); Clutter v. Consolidation Coal Co., 2014 WL 1479199 at *4 (N.D.W. Va. Apr. 15, 2014). In the alternative, the removing party can establish that "there has been outright fraud in the plaintiff's pleading of jurisdictional facts." Pritt v. Republican Nat. Committee, 1 F.Supp.2d 590, 592 (S.D.W. Va. 1998). "[F]raudulent joinder claims are subject to a rather black-and-white analysis in this circuit. Any shades of gray are resolved in favor of remand." Adkins v. Consolidation Coal Co., 856 F.Supp.2d 817, 820 (S.D.W. Va. 2012).

The Court must resolve all issues of fact and law in the plaintiff's favor, but, in doing so, "is not bound by the allegations of the pleadings." Marshall, 6 F.3d at 232-33; AIDS Counseling and Testing Centers v. Group W Television, Inc., 903 F.3d 1000, 1004 (4th Cir. 1990). Instead, the Court can consider "the entire record, and determine the basis of joinder by any means available." AIDS Counseling, 903 F.3d at 1004 (quoting Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir. 1964)). The standard for fraudulent joinder is more favorable to the plaintiffthan the standard for a Rule 12(b)(6) motion to dismiss. Mayes, 198 F.3d at 464.

ANALYSIS

As an initial matter, Thompson is not precluded from suing Galloway by any form of statutory immunity. Musgrove v. Hickory Inn, Inc., Syl. Pt. 3, 281 S.E.2d 499, 500-501 (W. Va. 1981) (quoting State ex rel. Bumgarner v. Sims, 79 S.E.2d 277 (1953)) ("In this jurisdiction a joint action of tort may be instituted against a master and servant in a case in which plaintiff's injuries were occasioned solely by the negligence of the servant. . . ."). Thompson was a contract truck driver employed by Chemical Leaman, whereas Galloway was employed by Monsanto. Therefore, the West Virginia Workers' Compensation Act scheme is not in effect.⁴ W. Va. Code § 23-2-1a. The Court must "simply appl[y] traditional principles of tort and agency law to hold both [the individual employee] and his employer liable for [his] bad behavior. . . ."Grubbs v. Westfield Ins. Co., 430 F.Supp.2d 563, 569 (N.D.W. Va. 2006).

Additionally, Monsanto's allegation that Thompson joined Galloway solely to defeat federal jurisdiction is not controlling. "The practice of joining an agent, employee or accomplice of a corporation as a party defendant is becoming more common every day. The device is frankly used by counsel as a method to defeat federal diversity jurisdiction and it often succeeds. It succeeds because the federal courts of appeals have adopted rigorous standards governing the issue of fraudulent joinder." Fleming v. United Teachers Associates Ins. Co., 250 F.Supp.2d 658, 661 (S.D.W. Va. 2003). The Court must remand the case unless Monsanto shows, by clear and convincing evidence, that there is no possibility Thompson can establish a cause of action against Galloway. Jackson, 132 F.Supp.2d at 433. Monsanto attempts to do so by arguing that Galloway owed no legal duty to Thompson, and, therefore, cannot be liable in tort to him (Dkt. No. 34 at 7).

To assert a cause of action for negligence, the plaintiff must prove by a preponderance of the evidence "that the defendant owed a legal duty to the plaintiff, and that by breaching that duty the defendant proximately caused the injuries of the plaintiff." Neelyv. Belk Inc., 668 S.E.2d 189, 197 (W. Va. 2008) (quoting Strahin v. Cleavenger, 603 S.E.2d 197 (W. Va. 2004)). The defendant must be "guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Parsley v. General Motors Acceptance Corp., 280 S.E.2d 703, 706 (W. Va. 1981).

Duty, however, is a flexible concept, and is "not absolute, but is always relative to some circumstance of time, place, manner, or person." Dicken v. Liverpool Salt & Coal Co., Syl. Pt. 1, 23 S.E. 582 (W. Va. 1895). A person who "engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a...