White v. Bombardier Corp.

• Decision Date: 19 March 2004
• Docket Number: No. 3:03CV562/RV/MD.,3:03CV562/RV/MD.
• Citation: 313 F.Supp.2d 1295
• Parties: Robert WHITE, Plaintiff, v. BOMBARDIER CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

Page 1295

313 F.Supp.2d 1295

Robert WHITE, Plaintiff, v. BOMBARDIER CORPORATION, et al., Defendants.

No. 3:03CV562/RV/MD.

United States District Court, N.D. Florida, Pensacola Division.

March 19, 2004.

Timothy M. O'Brien, Levin, Papantonio, Thomas, Etc., Pensacola, FL, for Robert White, Plaintiff.

Hillary Jacey Kaps, Rumberger, Kirk & Caldwell, Miami, FL, Scott Michael Sarason, Rumberger Kirk & Caldwell, Miami, FL, for Bombardier Corporation, Bombardier Inc., Bombardier-Rotax GMBH & Company KG, Destiny Aircraft Corporation, Destiny Powered Parachutes, Defendants.

ORDER

VINSON, Chief Judge.

Plaintiff Robert White brought this action in state court against the defendants, Bombardier Corporation; Bombardier, Inc.; Bombardier-Rotax GMBH & Co., K.G.;¹ Destiny Aircraft Corporation; and Destiny Powered Parachutes, LLC.² The Bombardier defendants removed the action to this court, and the plaintiff now moves to remand. (Doc. 6).

I. FACTUAL BACKGROUND

On February 10, 2003, the plaintiff filed this action in the Circuit Court for Escambia County, Florida, against defendants Bombardier Corporation; Bombardier, Inc.; Destiny Aircraft Corporation; and Destiny Powered Parachutes, LLC. Though Destiny Powered Parachutes, LLC, was clearly identified as a limited liability company, the complaint refers to Destiny Aircraft Corporation and Destiny Powered Parachutes, LLC collectively as "a Michigan Corporation conducting business at 1444 KDF Drive, Three Rivers, Michigan." The complaint further alleges that assertion of personal jurisdiction over the Destiny defendants by a Florida court is appropriate because "Destiny regularly places its products for sale in the stream of commerce which includes the state of Florida. Destiny also has authorized dealers, who sell and/or resell Destiny products, situated and located in Florida cities, such as the following: Dunellon; Jacksonville; Port Saint Lucie." The complaint alleges that Bombardier Corporation is a Vermont corporation conducting its business in Barre, Vermont, and that Bombardier, Inc., is a Canadian corporation conducting its business in Montreal, Quebec.

According to the complaint, at their plant in Michigan, the Destiny defendants were engaged in the manufacture, assembly, and distribution of "powered parachutes" or "powerchutes", which are mobile, propeller driven carts to which a parachute can be attached for the purpose of gaining altitude. Some time prior to November 15, 2000, Charles Smith, a former military pilot, purchased a two-seat powerchute from one of Destiny's authorized dealers in Nicholson, Georgia. On November 15, 2000, Smith invited the plaintiff to his home in Pensacola to help Smith in the maintenance of the powerchute engine. Smith and the plaintiff started the powerchute engine, which, because the engine has no clutch, also engaged the propeller. While the plaintiff was helping Smith start the engine, the cart began moving, ran over the plaintiff, and the propeller struck and severely injured him, rendering him permanently disabled. Count I of the complaint alleges common law negligence in the design and manufacture of the powerchute and engine. Count II alleges strict products liability. Count III alleges negligent failure to warn.

In February of 2001, because Smith had informed the plaintiff's attorney that he intended to repair the powerchute, the plaintiff's attorney's private investigator had taken custody of the powerchute to have it examined by a professional engineer. The plaintiff's attorney sent a letter by certified mail to Destiny Powered Parachutes inviting it to attend the inspection or to independently inspect the powerchute before it was repaired. The letter stated that, "In the very near future, we will be filing suit against your company for the severe injuries suffered by Mr. White as a result of the improper design of the Destiny Powerchute."³ After he received the letter, a man named John Rivers from Destiny Powered Parachutes contacted the plaintiff's attorney, who referred the call to the private investigator. Rivers expressed uncertainty about whether the Destiny defendants would send an expert to examine the powerchute and identified an attorney in Michigan that handled the corporation's general business matters.

Summonses were issued on the complaint by the state court on February 11, 2003. The plaintiff's research of the state of Michigan's business records revealed, and the Bombardier defendants do not dispute, that John Rivers was the registered agent for both Destiny Aircraft Corporation and Destiny Powered Parachutes, LLC. The plaintiff's public records research indicated that 1444 KDF Drive, Three Rivers, Michigan, was the Destiny defendants' registered address, and the documents given to Smith about his Destiny Powerchute also indicate that the same address was their physical address. The plaintiff obtained the services of Bruce Morse, a deputy sheriff in St. Joseph County, Michigan, who is authorized to serve process under Michigan law, to serve the summons and complaint on Rivers at the "1444 KDF Drive" address in Three Rivers, Michigan. On February 24, 2003, Morse went to that address, found Rivers there, and personally served him. A signature that, though difficult to discern, appears to be that of Rivers acknowledges receipt of service on behalf of the Destiny defendants on the return of service which was executed by Morse and later filed with the state court in Florida. The Bombardier defendants do not dispute that Rivers was personally served at the 1444 KDF Drive address by Morse. However, they contend that the 1444 KDF Drive address could not possibly have been the Destiny defendants' registered address because, on February 24, 2003, another business, Alliant Aviation, LLC, occupied that address. The Bombardier defendants submit the affidavit of Robert Taylor, the manager of Alliant Aviation, LLC, who avers that neither of the Destiny defendants did business at the 1444 KDF Drive address on the date of service and that he believes that the Destiny defendants were no longer in business. The return of service for Bombardier Corporation was filed on March 4, 2003.

The Destiny defendants did not respond to the complaint. On May 13, 2003, the plaintiff filed a motion for entry of default against the Destiny defendants under Florida Rule of Civil Procedure 1.500(a), due to their failure to respond. The state court clerk entered a default. On October 2, 2003, Bombardier Corporation filed a request for admissions, asking the plaintiff to admit that his damages exceeded $75,000. After some degree of difficulty, the plaintiff eventually served Bombardier, Inc. Apparently before the return of service was filed, on October 24, 2003, the plaintiff filed an amended complaint, naming Bombardier-Rotax GMBH & Co., K.G., an Austrian corporation, as an additional defendant, though that defendant has still not been served. On November 14, 2003, the plaintiff responded to Bombardier Corporation's request for admissions, admitting that his damages exceeded $75,000. On December 12, 2003, Bombardier Corporation and Bombardier, Inc. filed a notice of removal, which was filed in state court on December 16, 2003. The action was removed to this court without the consent of the Destiny defendants, and the plaintiff now moves to remand.

II. DISCUSSION

A. Standard of Review

Any civil case filed in state court may be removed to federal court by the defendant if the case could have been brought originally in federal court. See 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir.1981). A removing defendant has the burden of establishing both federal jurisdiction and compliance with the procedures for removal, as a matter of fact and law. See Leonard v. Enterprise Rent A Car, 279 F.3d 967, 972 (11th Cir.2002); Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir.1998). In considering a motion to remand when a plaintiff and defendant disagree on issues of jurisdiction, statutes authorizing removal of actions to federal courts are to be strictly construed against removal and questions or doubts are to be resolved in favor of returning the matter to state court. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir.2001); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). The asserted federal jurisdiction in this case is based on diversity of citizenship under Title 28, United States Code, Section 1332. In order for a federal court to have jurisdiction over a case pursuant to the diversity statute, the amount in controversy must exceed $75,000, exclusive of costs and interest, and there must be complete diversity of citizenship. See 28 U.S.C. § 1332. There appears to be no dispute that this action satisfies the requirements of Section 1332. The parties are of diverse citizenship, and the plaintiff seeks damages in excess of $75,000. The only question concerns whether the Bombardier defendants needed to obtain the consent of the Destiny defendants to remove the action to this court.

B. The Rule of Unanimity

"[T]he law is well settled that in cases involving multiple defendants all defendants must consent to the removal of a case to federal court." Russell Corp., supra, 264 F.3d at 1049; In re Bethesda Mem'l Hosp., 123 F.3d 1407, 1410 (11th Cir.1997)("The failure to join all defendants in the petition is a defect in the removal procedure"). This judicially created rule is often referred to as the unanimity requirement. "Like all rules governing removal, [the] unanimity requirement must be strictly interpreted and enforced because of significant federalism concerns arising in the context of removal jurisdiction." Russell Corp., supra, 264 F.3d at 1044. To satisfy the unanimity...