Buxton et al v. Wyatt et al

Filing 15

ORDER that the 2 Motion to Remand is GRANTED. This case is REMANDED to the Circuit Court of Lowndes County, Alabama. The Clerk of the Court is DIRECTED to take appropriate steps to effect the remand. Signed by Honorable William Keith Watkins on 11/19/2008. (Attachments: #(1) Civil Appeals Checklist) Copy mailed to Clerk, Circuit Court of Lowndes County, Alabama.(dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D A V ID A. BUXTON, et al., P l a i n t if f s , v. M A R K WYATT, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-CV-322-WKW [WO]

ORDER B e f o re the court is Plaintiffs' Motion to Remand (Doc. # 2). Defendant Thyssenkrupp E le v a to r Corporation ("Thyssenkrupp") filed a response (Doc. # 13), and Plaintiffs replied (D o c . # 14). For the reasons set forth below, the Motion to Remand (Doc. # 2) is due to be g r a n te d . On June 13, 2005, a freight elevator at General Electric Corporation's ("GE") B u rkv ille facility malfunctioned, causing injuries to Plaintiff David A. Buxton ("Buxton"), a chemical operator employed by GE. (Compl. ¶¶ 17, 27 (Notice of Removal Ex. 1 (Doc. # 1)).) It was later determined that a disconnection in the wiring in a control box had re n d e re d the elevator's safety gate inoperable prior to the accident. (Notice of Removal ¶ 19; C o m p l. ¶ 28.) Buxton and his wife, Plaintiff Annette Buxton (collectively "Buxtons"), filed s u it in the Circuit Court of Lowndes County, Alabama, against Thyssenkrupp and ten of B u x ton 's supervisory co-employees. (See Compl. ¶¶ 1-12.) The Buxtons sued the coe m p lo ye e s Defendants under § 25-5-11(b) of the Code of Alabama, a provision of the

A la b a m a Workers' Compensation Act providing for a cause of action against co-employees f o r "willful and intentional removal from a machine of a safety guard or safety device p ro v id e d by the manufacturer of the machine with knowledge that injury or death would lik ely or probably result from such removal," § 25-5-11(c)(2).1 T h is case has been removed and remanded once before. The first time Thyssenkrupp re m o v e d the case, it alleged that the non-diverse co-employee Defendants had been f r a u d u le n t ly joined and that the court could properly exercise diversity jurisdiction because T h ys s e n k ru p p is a Florida and Delaware citizen and the Buxtons are citizens of Alabama. (F irs t Notice of Removal ¶¶ 15, 18-19 (Notice of Removal Ex. 7).) For purposes of d e te rm in in g complete diversity, courts will ignore any non-diverse party that was f ra u d u le n tly joined, Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1979) (per curiam),2 b u t the removing party has the "heavy" burden of proving fraudulent joinder, Crowe v. C o le m a n , 113 F.3d 1536, 1538 (11th Cir. 1997) (internal quotation marks omitted). The E le v e n th Circuit recognizes three forms of fraudulent joinder. Triggs v. John Crump Toyota, In c ., 154 F.3d 1284, 1287 (11th Cir. 1998). Thyssenkrupp asserted joinder for "when there

In Moore v. Reeves, 589 So. 2d 173 (Ala. 1991), the Alabama Supreme Court interpreted § 255-11(c)(2) to cover failures to maintain or repair, as well as remove, safety guards and devices. Id. at 178. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to October 1, 1981.
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is no possibility that the plaintiff can prove a cause of action against the resident (nond iv e rs e ) defendant," id. (First Notice of Removal ¶ 20.) U p o n motion by the Buxtons, the court remanded because the Buxtons had sufficient c irc u m s ta n tia l evidence to "raise[] a possibility that a state court would find that [Buxton] c o u ld establish the essential elements of his cause of action against at least one of the su p erv isory employees." (First Remand Order, 2 (Notice of Removal Ex. 2).) More

s p e c if ic a lly, the court found "sufficient circumstantial evidence (including evidence from w h ic h it could be argued that there was a preexisting external and visible defect to the safety g a te) [that] raise[d] a possibility that at least one of the supervisory co-employee defendants h ad knowledge of the need to repair or maintenance." (First Remand Order, 3.) "`If there is even a possibility that a state court would find that the complaint states a cause of action a g a in s t any one of the resident defendants,'" the court explained, it "`must find that the jo in d e r was proper and remand the case to the state court.'" (First Remand Order, 2 (quoting T illm a n v. R.J. Reynolds Tobacco, 253 F.3d 1302 (11th Cir. 2001)).) Admitting that "the p ro p rie ty of removal present[ed] a close call," the court nevertheless resolved doubts, as re q u ire d by law, in favor of remand. (First Remand Order, 3.) O n April 30, 2008, Thyssenkrupp removed the case again, on the same theory of f ra u d u le n t joinder. (See Notice of Removal ¶¶ 7, 25 ("[I]t is clear that the Plaintiff has no p o s s ib ility of stating a valid claim against the co-employees under § 25-5-11(c)(2).").) In the interim between removal notices, the parties proceeded with discovery and took Buxton's

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d e p o sitio n . (Notice of Removal ¶ 4.) Evidently, it is Thyssenkrupp's contention that this n e w discovery alone tips the removal question in its favor. Thyssenkrupp argues that B u x to n 's deposition fails to describe any willful, intentional removal of a safety device or f a ilu re to install one on the part of the co-employee Defendants. (Notice of Removal ¶ 25.) T h ys s e n k ru p p further contends that no cases in Alabama have held that the failure to have a preventative maintenance program is tantamount to removing a safety device or failing to install one. (Notice of Removal ¶ 27.) Thyssenkrupp's arguments fail again to establish fraudulent joinder. The only a d d itiv e to the removal equation since the last remand has been Buxton's deposition, and it d o e s not effectively change the outcome. The fact that Buxton's deposition fails to support th e co-employee Defendants' knowledge before the accident hardly closes Buxton's claims a g a in s t them. (See Notice of Removal ¶ 24.) It is the co-employee Defendants, and not B u x to n , who can best testify to their own knowledge or to circumstances from which their k n o w led g e can be inferred, and those Defendants have only submitted untested affidavits (F irst Notice of Removal Ex. C). The Notice of Removal prematurely cut off the discovery th a t most directly concerns the factual questions in this case.3 Thus, because the remand ru lin g prior to Buxton's deposition found the record contained enough evidence to defeat

The Buxtons note, in addition to opposing removal, that removal cut off any opportunity for them to depose the co-employee Defendants. (Mot. to Remand ¶ 8.) The Buxtons also note, and Thyssenkrupp has not disputed, that the state court did not intend to set the discovery deadline until the scheduling conference in August 2008. (Mot. to Remand ¶ 9.)

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f ra u d u le n t joinder (First Remand Order, 3), there is not enough evidence on this record for T h yssen k ru p p to carry its burden on fraudulent joinder.4 F o r the foregoing reasons, it is ORDERED that the Motion to Remand (Doc. # 2) is G R A N T E D . This case is REMANDED to the Circuit Court of Lowndes County, Alabama. T h e Clerk of the Court is DIRECTED to take appropriate steps to effect the remand. DONE this 19th day of November, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

The district court must "`resolve all questions of fact . . . in favor of the plaintiff.'" Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005) (quoting Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)). In Legg, the plaintiffs offered no evidence to dispute the sworn statements from the co-defendants. Id. Thus, the allegations were a "mere assertion of metaphysical doubt." Id. Legg's admonition against assuming a party can prove facts absent evidence, however, seems less applicable to a party whose opportunity to garner facts has been prematurely foreclosed.

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