Turner v. Ford Motor Co.
| Decision Date | 16 October 2000 |
| Docket Number | No. Civ.A. 5:00CV163BN.,Civ.A. 5:00CV163BN. |
| Parties | Wanza TURNER as Administrator of The Estate of Jim Turner, Jr., and on Behalf of the Wrongful Death Beneficiaries of Jim Turner, Jr., Namely Herself, Tucumcari Baiseq'Kqwi Turner, A Minor Child, Orricca Venika Tarquie Turner, A Minor Child; By and Through Their Mother Wanza Turner and Jim Turner, III, A Minor, By and Through His Mother, Virginia Hawkins, Plaintiff, v. FORD MOTOR COMPANY, Eric Knight, John Givens, David Mo, Tom Cheng and Lee McCoy, Jr., Valley Industries, Fulton Manufacturing, Big Boy and Dutton Lainson Company, Ford Motor Company and John Does 1-5, Defendant. Lee McCoy, Jr., Cross-Plaintiff, v. Ford Motor Company, Eric Knight, John Givens, David Mo, Tom Cheng and Valley Industries, Fulton Manufacturing, Big Boy and Dutton Lainson Company, Ford Motor Company and John Does 1-5, Defendant. |
| Court | U.S. District Court — Southern District of Mississippi |
Deborah McDonald, Natchez, MS, Patricia F. Dunmore, Patricia F. Dunmore, Natchez, MS, for Wanza Turner.
Gregory K. Davis, David, Goss & Williams, Jackson, MS, Halbert E. Dockins, Jr., Law Offices of Halbert E. Dockins Jr., Jackson, MS, H. Lanier Brown, II, D. Alan Thomas, Huie, Fernambucq & Stewart, Birmingham, AL, Mark Douglas Herbert, McGlinchey Stafford, Jackson, MS, for Ford Motor Company.
J. Tucker Mitchell, John E. Gough, Jr., Copeland, Cook, Taylor & Bush, Ridgeland, MS, for David Mo.
L. Clark Hicks, Jr., Lawrence C. Gunn, Jr., Attorney, Hattiesburg, MS, for Tom Cheng.
John D. Brady, McCoy, Wilkins, Stephens & Tipton, Jackson, MS, John E. Mulhearn, Jr., Mulhearn & Mulhearn, Natchez, MS, for Lee McCoy, Jr.
Roger C. Riddick, Upshaw, Williams, Biggers, Beckham & Riddick, Jackson, MS, for Valley Industries.
Robert B. Virden, Campbell, Delong, Hagwood & Wade, Greenville, MS, for Fulton Manufacturing.
This cause is before the Court on the Motion to Remand filed by Wanza Turner, et al. ("Turner Plaintiffs"). Cross-Plaintiff Lee McCoy's motion ore tenus to join in the Turner Plaintiff's Motion to Remand was granted by this Court in an Order entered on July 5, 2000. The Court has considered the Motion, Responses, Rebuttals, supporting and opposing authority, and all attachments to each, and finds that the Turner Plaintiffs' Motion to Remand, to which Cross-Plaintiff Lee McCoy has joined, is well taken and should be granted.
The Turner Plaintiffs have also filed a Motion for Rule 11 Sanctions against Defendants Ford Motor Company and Fulton Performance Products, and their attorneys, alleging that the Notice to Remove this case to federal court was filed in bad faith. The Court has considered the Motion, Responses, and supporting and opposing authority, and finds that the Turner Plaintiffs' Motion for Rule 11 Sanctions is not well taken and should be denied.
The subject cause of this action is based on a motor vehicle/trailer collision that occurred on June 7, 1998. The parties agree that on the date in question, Defendants Eric Knight ("Knight") and Jim Givens ("Givens") were traveling north on U.S. Highway 61 in Jefferson County, Mississippi. The truck in which they traveled was towing a trailer owned by Defendants Tom Cheng ("Cheng") and David Mo ("Mo"). Defendant Fulton Performance Products ("Fulton") manufactured the coupler on the trailer for Defendant Big Boy Products ("Big Boy").
The trailer apparently disengaged from the hitch ball that secured it to the truck in which Knight and Given traveled and entered the south-bound lane of Highway 61 where it collided with a Ford F-150 pickup traveling south on Highway 61. The Plaintiffs' decedent, Jim Turner, Jr. ("Turner") was a passenger in the F-150 pickup truck. The truck was driven by Lee McCoy, Jr. ("McCoy"). Both McCoy and Turner were injured in the collision, Turner died as the result of the injuries he sustained.
The Turner Plaintiffs filed a wrongful death action in the Circuit Court of Jefferson County, Mississippi on June 4, 1999. The Defendants1 named in the Complaint are:
Defendant Citizenship Date Process Served
Ford Delaware Corporation; September 28, 1999
Principle Place of
Business: Michigan
Fulton Delaware Corporation; September 28, 1999
Principle Place of
Business: Wisconsin
Knight Mississippi January 7, 20002
Givens Mississippi September 28 or 29, 1999
Cheng Mississippi September 28 or 29, 1999
Mo Mississippi September 28 or 29, 1999
McCoy3 Louisiana September 28 or 29, 1999
Big Boy Indiana Corporation Never served process
With regard to the Mississippi Defendants, the Turner Plaintiffs and McCoy reached a settlement with Mo on May 19, 2000. See Turner Plaintiffs' Rebuttal In Support Of Their Motion To Remand, Exhibit 9 (Letter confirming settlement between Plaintiffs and Mo). After settling with Mo, the Turner Plaintiffs and McCoy continued their efforts to reach a settlement with Cheng. See Id., Exhibit 10 (May 22, 2000, letter to Cheng's counsel confirming rejection of offer to settle); Exhibit 11 (June 30, 2000, letter to Cheng's counsel indicating that the parties had attended a mediation conference regarding the Plaintiffs' offer to settle). A settlement among the Turner Plaintiffs, McCoy and Cheng was reached on June 30, 2000. See Id., Exhibit 12 (June 30, 2000, letter from Cheng's counsel confirming settlement).
Ford filed a Notice of Removal, in which Fulton joined, on July 3, 2000. Ford contends that even though the case was not removable to federal court as initially plead, it became removable pursuant to 28 U.S.C. §§ 1441(a) and 1446(b) when complete diversity was established between the Plaintiffs and remaining Defendants as required by 28 U.S.C. § 1332. Specifically, Ford alleges that the Mississippi Defendants should not be considered for the purpose of diversity analysis because the Plaintiffs have abandoned all claims against Knight and Givens and have settled all claims against Mo and Cheng. See Amended Notice of Removal, ¶ 16-19.
The Turner Plaintiffs responded to the Notice of Removal by filing: (1) a Motion for a Temporary Restraining Order and/or Preliminary Injunction and, (2) a Motion to Remand, with this Court on July 5, 2000. After a hearing on the issues, the Court denied the Plaintiffs' Motion for injunctive relief and granted the Defendants' request for additional time to fully brief the issues presented in the Turner Plaintiffs' Motion to Remand. See Order of July 5, 2000. The Court also granted McCoy's motion ore tenus to join in the Turner Plaintiff's Motion to Remand.
Plaintiffs, in their Motion to Remand, argue that the case was not removable because: (1) the one-year removal period provided under 28 U.S.C. § 1446(b) had expired, (2) all of the Defendants had not been joined in the removal, and (3) the Chancery Court had not yet approved the settlement agreements reached by the parties. McCoy additionally requests attorney fees and expenses pursuant to 28 U.S.C. § 1447(c). The Turner Plaintiffs have also filed a Motion for Rule 11 Sanctions alleging that Defendants Ford and Fulton, in conjunction with their attorneys, filed the Notice of Removal in bad faith and with an improper purpose thereby violating Rule 11 of the Federal Rules of Civil Procedure.
Federal district courts have original jurisdiction of civil actions that arise "under the Constitution, laws, or treaties of the United States," see 28 U.S.C. § 1331, or in which the "matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States." See 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1441(a), a "civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States for the district and division embracing the place where such action is pending." If removal is predicated on diversity of citizenship, "none of the parties in interest properly joined and served as defendants [may be] a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).
This case was not removable as initially filed in state court because four of the named Defendants were citizens of the State of Mississippi. Ford, however, contends that removal became proper on or about June 30, 2000, when the Plaintiffs entered a settlement with Cheng thereby dismissing the last Mississippi resident Defendant. Pursuant to 28 U.S.C. § 1446(b):
If a case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable except that a case may not be removed on the basis of jurisdiction conferred by [28 U.S.C. § 1332] more than 1 year after commencement of the action.
The first argument raised by the Plaintiffs in their Motion For Remand is that removal of this case was improper because Ford filed the Notice of Removal more than one year after the Complaint was initially filed in state court.
The plain language of 28 U.S.C. § 1446(b) provides that a case may not be removed to federal district court on the basis of diversity jurisdiction more than one year after the action is commenced. An action, under both Mississippi and federal law, is commenced "by filing a complaint with the court." See, MISS.R.CIV.P. 3(a); FED.R.CIV.P. 3. Federal District Courts in Mississippi have applied literally the one-year removal period, holding that a case...
To continue reading
Request your trial
-
Caudill v. Ford Motor Co.
...knew the one-year clock was ticking, see Sasser v. Ford Motor Co., 126 F.Supp.2d 1333, 1336-37 (M.D.Ala.2001); Turner v. Ford Motor Co., 116 F.Supp.2d 755, 759-62 (S.D.Miss.2000), yet it failed to take action. There is no good reason for a federal court to "create" removal jurisdiction outs......
-
Brown v. Ascent Assurance, Inc., No. 4:01CV157-D-B (N.D. Miss. 2001), 4:01CV157-D-B.
...grounds if the Notice of Removal is filed more than one year after the case is commenced in state court." Turner v. Ford Motor Co., et al., 116 F. Supp. 2d 755, 758 (S.D. Miss. 2000). In this case, as in Jenkins, the court exercises its discretion in favor of awarding to the plaintiff all c......
-
McGraw v. Lone Star Indus., Inc.
...this jurisdiction and beyond, that addresses the meaning of the phrase "commencement of the action," see, e.g., Turner v. Ford Motor Co., 116 F. Supp. 2d 755 (S.D. Miss. 2000); Jenkins v. Sandoz Pharm. Corp., 965 F. Supp. 861 (N.D. Miss. 1997); Morrison v. Nat'l Ben. Life Ins. Co., 889 F. S......
-
Evers v. Cec Ent.
...find it persuasive. Accordingly, in an exercise of its discretion, Ms. Evers' request for fees is denied. See Turner v. Ford Motor Co., 116 F.Supp.2d 755, 763-64 (S.D. Miss. 2000). ...