Watson v. Appalachian Power Co.

• Citation: 934 F. Supp. 191
• Decision Date: 09 August 1996
• Docket Number: Civil Action No. 2:96-0583.
• Parties: Rose WATSON, Plaintiff, v. APPALACHIAN POWER CO., et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

934 F. Supp. 191

Rose WATSON, Plaintiff, v. APPALACHIAN POWER CO., et al., Defendants.

Civil Action No. 2:96-0583.

United States District Court, S.D. West Virginia, Charleston Division.

August 9, 1996.

Stuart Calwell and Mary McQuain, Calwell & McCormick, Charleston, WV, for plaintiff.

Richard J. Bolen, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, Judith A. Villines, W. Patrick Stallard, Jason P. Thomas, Stites & Harbison, Louisville, KY, for Appalachian Power Co. and Central Operating Company.

Charles M. Love, III, Bowles, Rice, McDavid, Graff & Love, Charleston, WV, Gerald H. Davidson, Jr., Smith, Helms, Mulliss & Moore, Greensboro, NC, for Monsanto Company.

Dennis C. Sauter, Jackson & Kelly, Charleston, WV, Steve R. Kuney, Williams & Connolly, Washington, DC, David K. Hendrickson, Hendrickson & Long, Charleston, WV, Barry M. Klayman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, for General Electric Company, Westinghouse Electric Corporation.

Thomas S. Sweeney, Meyer, Darragh, Buckler, Bebenek & Eck, Charleston, WV, Dennis C. Sauter, Jackson & Kelly, Charleston, WV, for ITT Corporation.

Steven P. McGowan, Steptoe & Johnson, Charleston, WV, for Kuhlman Corporation.

Mary Braza, Foley & Lardner, Milwaukee, WI, for Allis Chalmers Corp.

Thomas E. Scarr, Jenkins, Fenstermaker, Krieger, Kayes & Agee, Huntington, WV, for Acme Electric Corp.

Michael B. Victorson, Robinson & McElwee, Charleston, WV, for A.B. Chance Co.

Joseph R. Cullens, Freeman & Hawkins, Atlanta, GA, Marc E. Williams, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, for Kearney-National, Inc.

Joseph L. Luciana, III, Kirkpatrick & Lockhart, Pittsburgh, PA, Thomas E. Johnson, Schrader, Byrd, Companion & Gurley, Wheeling, WV, Walter A. Bunt, Jr., Kirkpatrick & Lockhart, Pittsburgh, PA, for Delta Star.

Scott A. Damron, Pettit & Damron, Huntington, WV, for Line Manufacturing, Inc.

MEMORANDUM OPINION AND REMAND ORDER

HADEN, Chief Judge.

Pending is Plaintiff's Motion to Remand. The Court GRANTS the motion and cancels the Scheduling Conference of which counsel was given notice on August 8, 1996. Also pending are Defendant Kuhlman Electric's Motion to Dismiss and Defendant ITT's Motion for a More Definite Statement, both of which were originally filed in state court, and which now may be resolved there.

Plaintiff's complaint was originally filed in the Circuit Court of Putnam County, West Virginia on December 29, 1995.¹ The action was removed to this Court on June 17, 1996. All Defendants, except Central Operating Company, are foreign corporations with citizenship diverse to Plaintiff's. Defendants argue Plaintiff fraudulently named Central Operating as a Defendant to defeat federal diversity jurisdiction. Plaintiff contends she has a viable claim against Central Operating.

The Court has recognized on more than one occasion that "removal statutes must be strictly construed against removal. Any doubts concerning the propriety of removal must be resolved in favor of retained state court jurisdiction." Scott v. Greiner, 858 F.Supp. 607, 610 (S.D.W.Va.1994) (Haden, C.J.) (citations omitted). Fraudulent joinder to avoid federal jurisdiction, on the other hand, "will be found when there is no arguably reasonable basis for predicting that state law might impose liability on the facts involved." Arthur v. E.I. du Pont, 798 F.Supp. 367, 369 (S.D.W.Va.1992) (Haden, C.J.) (quotation marks and citations omitted).²

The instant complaint is vague about many of the causes of action asserted or assertable against Central Operating, but it clearly asserts a claim based on Plaintiff's belief, at the time of filing, that Central Operating was the owner of the premises where the decedent's injuries occurred. Defendants have raised serious and possibly fatal questions about that proposition and the validity of the premises liability cause of action against Central Operating. Plaintiff contends, however, that the complaint asserts additional causes of action not based on a premises liability theory. Thus, assuming failure of the premises liability claim, the complaint may state, currently or by amendment, other viable claims against Central Operating. Although it is not clear from the complaint whether Plaintiff intended at filing to assert causes of action against Central Operating unrelated to premises liability, the Memorandum in Support of her Motion to Remand unambiguously states Plaintiff's current intent to pursue alternate theories of liability against Central Operating.

Our Court of Appeals placed a heavy burden on those who would establish fraudulent joinder. The removing party must establish either:

that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts. The burden on the defendant claiming fraudulent joinder is heavy: the defendant must show that the plaintiff cannot establish a claim against the non-diverse defendant even after resolving all issues of fact and law in the plaintiff's favor. A claim need not ultimately succeed to defeat removal; only a possibility of a right to relief need be asserted.

Marshall v. Manville Sales Corp., 6 F.3d 229, 232-33 (4th Cir.1993) (citations omitted). Because Defendants have not shown outright fraud in Plaintiff's pleadings, they must show there is no possibility Plaintiff could...