Watson v. Gen. Elec., Inc., Civil Action No. CV-12-S-2661-NE
| Decision Date | 26 November 2012 |
| Docket Number | Civil Action No. CV-12-S-2661-NE |
| Parties | KENNETH JOE WATSON, Plaintiff, v. GENERAL ELECTRIC, INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This action is before the court on a motion to remand filed by plaintiff, Kenneth Joe Watson.1 Plaintiff commenced this action in the Circuit Court of Morgan County, Alabama on May 16, 2012.2 Defendant General Electric, Inc. ("GE"), was the only party named as a defendant in the original complaint, which alleged that plaintiff's hand had been crushed in machinery while he was working in the line and scope of his employment for GE, and asserted a single claim for damages under Alabama's Workers' Compensation Act.3
Plaintiff filed an amended complaint in the state court on July 2, 2012.4 That complaint added a second defendant, RWC, Inc. ("RWC"), and alleged new claimsfor negligence, breach of warranty, and products' liability against RWC and various fictional defendants.5 RWC was served with the amended complaint on July 10, 2012.6
RWC filed a notice of removal on August 8, 2012,7 and alleged that the parties' complete diversity of citizenship was the basis for jurisdiction in this court.8 Neither RWC's notice of removal, nor any other document filed with this court, indicated that GE consented to the removal. Even so, RWC asserted that the claims against it were fraudulently joined with the claims against GE, and that GE had not been served.9 As a result, RWC believed that GE's citizenship or consent was not relevant to removal.10
Plaintiff moved to remand the case to state court on August 15, 2012.11 Plaintiff argued that there was no fraudulent joinder, and asserted that "[t]here is no complete diversity of citizenship[,]" although he did not explain why that is true.12 RWCopposed the motion.13 Upon consideration, the motion will be granted.
Motions to remand are governed by 28 U.S.C. § 1447(c), which contemplates "two grounds for remanding a removed case: (1) lack of subject matter jurisdiction; or (2) procedural defect in the removal of the case." Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1043 (11th Cir. 2001) (citing Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995); Florida Polk County v. Prison Health Services, Inc., 170 F.3d 1081, 1083 (11th Cir. 1999)).14
District courts are "'empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution,' and which have been entrusted to them by a jurisdictional grant authorized by Congress." University of South Alabama v. The American Tobacco Co., 168 F.3d 405, 409 (11thCir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)); see also, e.g., Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1260-61 (11th Cir. 2000) () (citing University of South Alabama, 168 F.3d at 409-10).
RWC's notice of removal asserted that jurisdiction was proper under 28 U.S.C. § 1332.15 Jurisdiction under that provision requires "complete diversity": i.e., the citizenship of every plaintiff must be diverse from the citizenship of every defendant. See, e.g., Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1564 (11th Cir.1994). The amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a).
It is well settled that the removal statutes should be narrowly construed. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 766 (11th Cir. 2010). Moreover, the Eleventh Circuit recognizes that "there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Russell Corp., 264 F.3d at 1050 (citing Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994)). The removingdefendant bears the burden of showing that removal is appropriate. See Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001); Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1281 n.5 (11th Cir. 2001); Murphree v. American Federation of Government Employees, AFL-CIO, 4:11-CV-2563-KOB, 2012 WL 1058358, at *2 (N.D. Ala. Mar. 27, 2012) (citing Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir.2002)).
The "unanimity rule" mandates that, in cases involving multiple defendants, all defendants properly joined and served must consent to removal. See 28 U.S.C. § 1446(b); see also Russell Corp., 264 F.3d at 1044 (citing Chicago, Rock Island, and Pacific Railway Co. v. Martin, 178 U.S. 245, 247-48 (1900); In re Ocean Marine Mutual Protection and Indemnity Ass'n, Ltd., 3 F.3d 353, 355-56 (11th Cir.1993); In re Federal Savings & Loan Insurance Corp., 837 F.2d 432, 434 (11th Cir.1988)); Beard v. Lehman Brothers Holdings, Inc., 458 F. Supp. 2d 1314, 1319 (M.D. Ala. 2006).
A defendant's failure to obtain unanimous consent of all defendants to the notice of removal "is a defect in the removal procedure." In re Bethesda Memorial Hospital, Inc., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997) (). The unanimity rule "must be strictly interpreted and enforced because of the significant federalism concerns arising in the context of federal removal jurisdiction." Russell Corp., 264 F.3d at 1049 (11th Cir. 2001).
Despite the foregoing discussion, the unanimity rule "is not violated when the alleged offender of the rule has not been served at the time the removal petition is filed: 'A defendant that has not been served with process need not join in or consent to removal.'" Harris v. Pacificare Life & Health Insurance Co., 514 F. Supp. 2d 1280, 1286 (M.D. Ala. 2007) (quoting GMFS, L.L.C. v. Bounds, 275 F. Supp. 2d 1350, 1354 (S.D. Ala. 2003)).
The unanimity rule, as well as the requirement for complete diversity of citizenship, does not apply when the non-diverse defendant is fraudulently joined for the purpose of preventing removal. See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The burden of showing fraudulent joinder is a heavy one that rests on the removing party. See Pacheco de Perez v. AT&T Company, 139 F.3d 1368, 1381 (11th Cir. 1998); Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). Fraudulent joinder is deemed to exist in three situations: (1) when there is no possibility that a plaintiff can establish a cause of action against a non-diversedefendant; (2) when there is outright fraud in the pleading of jurisdictional facts; or (3) when a diverse defendant is joined with a non-diverse defendant, but there is no joint, several, or alternative liability, and the claims against the respective defendants have no real connection. Triggs, 154 F.3d at 1287 (citing Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996); Coker v. Amoco Oil Co., 709 F. 2d 1433, 1440 (11th Cir. 1983)).
This case is factually similar to Formosa v. Lowe's Home Centers, Inc., 806 F. Supp. 2d 1811 (N.D. Ala. 2011), a case currently pending before Chief Judge Sharon Lovelace Blackburn after removal from state court. In Formosa, the plaintiff filed a complaint in state court that alleged a claim against Lowe's for worker's compensation benefits under the Workers' Compensation Act of Alabama for injuries sustained after plaintiff fell off of a stool at work. Id. at 1183-84; see also Ala. Code 1975 § 25-5-80 (1975). Plaintiff also asserted claims for negligent design, failure to warn, and breach of warranty against an entity named "L.G. Sourcing." Id. at 1184. L.G. Sourcing removed the case to federal court based on diversity jurisdiction, and argued that the plaintiff's worker's compensation claim was fraudulently joined with the state-law claims asserted against L.G. Sourcing. Id. L.G. Sourcing moved to sever and remand the workers' compensation claim, while Formosa moved to remandthe entire case. Id. Chief Judge Blackburn severed the worker's compensation claim against Lowe's and remanded it to state court, but retained jurisdiction over the tort claims against L.G. Sourcing. Id. at 1193.
There is, however, at least one important procedural difference between this case and Formosa.16 The plaintiff in Formosa waived her right to remand by not moving to remand within thirty days of removal; thus, the removal was procedurally proper, and the Court possessed subject matter jurisdiction based on diversity of citizenship. Id. at 1192 (citing Lowrey v. Alabama Power Co., 483 F.3d 1184, 1215 n.65 (11th Cir. 2007)). As a result, Chief Judge Blackburn's opinion in Formosa did not consider "the question of whether remand of the entire case would have been warranted if Formosa had filed her Motion to Remand within thirty days of removal." Id. at 1193.
In the instant case, however, plaintiff did timely file his motion to remand: i.e., RWC filed its notice of removal on August 8, 2012, and plaintiff moved to remand on August 15, 2012.17 Thus, if this court has subject matter jurisdiction, then the court must decide the question Formosa did not reach: is remand of the entire casewarranted?
Of course, it is the antecedent issue — whether subject matter jurisdiction exists — to which the court must first turn. See Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001); Galindo-Del Valle v. Attorney General, 213 F.3d 594, 598 n.2 (11th Cir. 2000).
By statute, "[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the...
To continue reading
Request your trial