Haber v. Massey

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation904 F.Supp.2d 136
Docket NumberC.A. No. 12–CV–30076–MAP.
PartiesElizabeth HABER, Plaintiff v. Joseph W. MASSEY and CSX Transportation, Inc., Defendants.
Decision Date01 November 2012

904 F.Supp.2d 136

Elizabeth HABER, Plaintiff
Joseph W. MASSEY and CSX Transportation, Inc., Defendants.

C.A. No. 12–CV–30076–MAP.

United States District Court,
D. Massachusetts.

Nov. 1, 2012.

[904 F.Supp.2d 138]

Cynthia A. Spinola, Michael D. Hashim, Jr., Hashim & Spinola, Pittsfield, MA, for Plaintiff.

Heather M. Gamache, Lori A. Wirkus, Flynn Wirkus Young, P.C., Quincy, MA, for Defendants.


PONSOR, District Judge.

This is a personal injury case, originally filed in state court, in which Plaintiff claims that she was struck by Co–Defendant Joseph W. Massey while he was employed by Co–Defendant CSX Transportation, Inc. As a result, Plaintiff suffered very serious injuries, including the loss of her leg.

Defendants removed the case to this court following Massey's filing of a Petition for Bankruptcy. Plaintiff thereafter filed a Motion to Remand, citing lack of subject matter jurisdiction, and requesting, alternatively, that the court abstain from adjudicating this case. See Dkt. No. 5.

This motion was referred to Magistrate Judge Kenneth P. Neiman for ruling. As Judge Neiman noted in his memorandum (Dkt. No. 10), the First Circuit has yet to indicate definitively whether a ruling by a Magistrate Judge on a Motion to Remand should be treated as a Report and Recommendation. Out of an abundance of caution, Judge Neiman fashioned his memorandum in the form of a Report and Recommendation.

Judge Neiman's detailed memorandum carefully outlines the underlying facts and legal principles in this case. For this reason, it is not necessary for the court to go on at length. The recommendation is to the effect that the Motion to Remand should be allowed on abstention grounds. SeeDkt. No. 10 at 147. This recommendation will be adopted. Abstention is fully warranted in this case.

Having reviewed the substance of the Report and Recommendation and finding it meritorious, the court, upon de novo review, hereby ADOPTS the Report and Recommendation (Dkt. No. 10). Based upon this, Plaintiff's Motion to Remand (Dkt. No. 5) is hereby ALLOWED. The clerk is ordered to return this case to the Berkshire County Superior Court. This case may now be closed.

It is So Ordered.

NEIMAN, United States Magistrate Judge.

Elizabeth Haber (“Plaintiff”) filed a personal injury lawsuit in state court against Joseph W. Massey (“Massey”) and CSX Transportation, Inc. (“CSX”) (together,

[904 F.Supp.2d 139]

“Defendants”). Subsequent to Massey's filing of a petition for bankruptcy, Defendants removed the action to this court pursuant to, inter alia,28 U.S.C. §§ 1334, 1452, which permit the removal of claims related to bankruptcy cases. In response, Plaintiff filed a motion to remand, asserting a lack of subject matter jurisdiction and, alternatively, seeking abstention, which motion Defendants have opposed.

Plaintiff's motion to remand has been referred to this court for action. The First Circuit, however, has yet to resolve the question of whether a magistrate judge has the authority to “hear and determine” motions to remand, 28 U.S.C. § 636(b)(1)(A), or may only issue “proposed findings of fact and recommendations,” 28 U.S.C. § 636(b)(1)(B). See Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 12–13 (1st Cir.1992). Absent definitive guidance, this court's practice has been to proceed via a report and recommendation. See Valley Mgmt., Inc. v. Boston Rd. Mobile Home Park Tenants Ass'n., Inc., 736 F.Supp.2d 344, 346–47 (D.Mass.2010) (detailing the split in authority regarding whether motions to remand are dispositive or non-dispositive motions and concluding that “the most practical solution is to ... offer the district court a recommendation on the remand motion pursuant to Rule 72(b) and section 636(b)(1)(B).”). For the reasons detailed below, the court will recommend allowing Plaintiff's motion to remand on grounds of abstention.

I. Background

Plaintiff filed her complaint against Defendants in Berkshire County Superior Court on January 12, 2012. Plaintiff alleged that while she was crossing the street, Massey, an employee of CSX, hit her with his truck and caused her to suffer serious injuries, including the loss of her leg. (Complaint ¶¶ 4–5; Motion to Remand at 1.) On March 30, 2012, Massey filed a Chapter 7 Voluntary Petition for Bankruptcy with the United States Bankruptcy Court for the District of Massachusetts. (Motion to Remand at 2.) Massey's filing of the petition automatically stayed the state court proceedings. (Ex. E (Attached to Defendant's Opposition to Motion to Remand (“Defs. Opp.”)).) Nonetheless, on April 12, 2012, Defendants removed the action to federal court, asserting, pursuant to 28 U.S.C. § 1334(b), that this court has jurisdiction to hear Plaintiff's claims because they are “related to” Massey's bankruptcy proceedings.

On June 5, 2012, Plaintiff informed the court via her counsel's affidavit that on May 1, 2012, the trustee of Massey's bankruptcy estate reported that “there is no property available for distribution from the estate over and above that exempted by law,” that the estate had been “fully administered,” and that the trustee requested that he “be discharged from any further duties as trustee.” (Document No. 9); In re Massey, U.S. Bankr.Ct. (D.Mass.) (Dkt. Sheet, May 1, 2012 entry). Plaintiff further attested that on May 17, 2012 the bankruptcy court lifted the automatic stay that had been in place since Massey filed his bankruptcy petition. (Document No. 9.)

II. Discussion

The parties initially focused their arguments on whether Plaintiff's state law claims were sufficiently related to Massey's bankruptcy proceedings under 28 U.S.C. § 1334(b), given Defendants' removal on such grounds, as to provide this court with subject matter jurisdiction. However, in opposition to Plaintiff's motion to remand, Defendants asserted for the first time that diversity would also provide a basis for this court's jurisdiction and asked for permission to amend their notice

[904 F.Supp.2d 140]

of removal accordingly. If diversity jurisdiction indeed exists, there would be no need for the court to address the somewhat thornier questions associated with jurisdiction and abstention under section 1334. See Veldekens v. GE HFS Holdings, Inc., 362 B.R. 762, 766 (S.D.Tex.2007) (noting that because “[d]iversity jurisdiction is an independent basis for district court jurisdiction,” such jurisdiction can be “established without the need to adjudicate difficult questions about bankruptcy jurisdiction and abstention.”). Accordingly, the court has chosen to address the diversity question first. Since it will conclude that, on the record before it, Defendants have not established diversity jurisdiction, the court will then proceed to address the questions arising under section 1334.

A. Diversity Jurisdiction1. Defendants' Request to Amend their Notice of Removal

Section 1446(b) requires that a state court defendant wishing to remove a case to federal court do so by filing a notice of removal “within 30 days after the receipt by the defendant ... of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). In some contrast, section 1452, the bankruptcy removal statute, does not impose a thirty-day time limit on removal; rather, courts have determined that a number of different deadlines govern such removal as set forth in Rule 9027 of the Federal Rules of Bankruptcy Procedure. See New England Wood Pellet, LLC v. New England Pellet, LLC, 419 B.R. 133, 146 (D.N.H.2009); Shared Network Users Group v. Worldcom Tech., 309 B.R. 446, 449 (E.D.Pa.2004) (“[W]e disagree [with the plaintiff] that the 30 day deadline under § 1446(b) is applicable when removal is predicated on § 1452.”).

Here, Plaintiff has raised no objection to the timing of Defendants' removal pursuant to section 1452. Still, Defendants seek leave to amend their notice of removal to add diversity as a basis for federal jurisdiction; in essence, Defendants assert that CSX is a diverse defendant and that Massey, who is not diverse, is nonetheless a dispensable party, thereby creating complete diversity. By amending their notice of removal, the court notes, Defendants could avoid a possible remand challenging the original grounds of removal under section 1334, i.e., that Plaintiff's state law claims are related to Massey's bankruptcy proceedings.

Defendants, it must be understood, do not dispute that, Plaintiff being a Massachusetts resident, Massey's continued presence in this lawsuit as a Massachusetts citizen would defeat complete diversity as required by section 1332.1 Nevertheless, Defendants wish to amend their notice of removal on the basis of Plaintiff's representation, both here and in the bankruptcy court, that she will not seek to enforce any judgment against Massey. Based on this representation, Defendants argue, Massey should be dismissed from the action, thereby creating diversity jurisdiction and, in turn, grounds for amending their notice of removal. Such an amendment is permissible at this late date, Defendants appear to argue, because the basis for removal—Massey's dispensability and the resulting diversity—arguably did not exist until the expiration of the thirty-day period established by section 1446.

[904 F.Supp.2d 141]

Courts generally allow a defendant to amend a notice of removal after the thirty day time limit for “technical defects in the jurisdictional allegations, but not to add a new basis for federal jurisdiction.” In re Pharm. Indus. Average Wholesale Price, 509 F.Supp.2d 82, 95 (D.Mass.2007). The authorization for such “technical” amendments derives from 28 U.S.C. § 1653, which states that “[d]efective allegations of jurisdiction may be amended ... in the trial or appellate courts.”...

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