Wingard et al v. Guillot Textilmaschinen GmbH et al
MEMORANDUM OPINION AND ORDER that the 3 Wingards' Motion to Remand is GRANTED; Texo's 11 Motion to Sever is DENIED; this case is REMANDED to the Circuit Court of Montgomery County, Alabama. The Clerk of Court is DIRECTED to take appropriate steps to effect the remand. Signed by Honorable William Keith Watkins on 9/23/2008. (Attachments: #(1) Civil Appeals Checklist)Copy mailed to Clerk, Circuit Court of Montgomery County, Alabama as directed. (dmn)
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION W A L T E R WINGARD, as the A d m in is tra to r of the Estate of B e v e rlyn Wingard, deceased, et al., P l a i n t if f s , v. G U IL L O T TEXTILMASCHINEN G M B H , et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) )
C A S E NO. 2:08-CV-342-WKW [WO]
M E M O R A N D U M OPINION AND ORDER T h i s case is before the court on two motions: (1) a Motion to Remand (Doc. # 3) f ile d by Plaintiffs Walter Wingard ("Mr. Wingard"), as the Administrator of the Estate of B e v e rlyn Wingard ("Beverlyn"), deceased, and Etheleen Wingard ("Ms. Wingard"), in d iv id u a lly and as the Next Friend of C.D.B., a minor child and dependent of Beverlyn; a n d (2) a Motion to Sever (Doc. # 11) filed by Defendant Texo, Inc. ("Texo"). For the r e a s o n s set forth below, the court finds that the Motion to Remand (Doc. # 3) is due to be g ra n te d and the Motion to Sever (Doc. # 11) is due to be denied. I . FACTS AND PROCEDURAL HISTORY O n August 8, 2008, Mr. Wingard and Ms. Wingard, Beverlyn's brother and m o th e r, filed this lawsuit for claims arising from Beverlyn's death. (Doc. # 1, Ex. A, C o m p l. ¶¶ 1, 2 & 11.) According to their Complaint, the warper Beverlyn was operating a s an employee of Albany International, Inc. ("Albany International") pulled her into its
ro ta tin g parts, resulting in her death. (Compl. ¶ 11.) It is the Wingards' contention that th e warper "presented an unreasonable hazard by virtue of exposed nip points." (C o m p l. ¶¶ 12-13.) The Wingards filed suit in the Circuit Court of Montgomery County, A la b a m a , against several Defendants: (1) Guillot Textilmaschinen GmbH ("Guillot"), the c o m p a n y that allegedly designed, manufactured, and sold the warper machine to Albany In te rn a tio n a l; (2) Franz Guillot, the owner of Guillot; (3) Texo, a foreign company c o n n e cte d to the machine's production; (4) Albany International; and (5) four fictitious d e f e n d a n ts . (Compl. ¶¶ 2-10 & 15.) The Wingards filed claims under the Alabama E x t e n d e d Manufacturer's Liability Doctrine and for negligence/wantoness against G u illo t, Franz Guillot, and Texo, and a workers' compensation claim against Albany Intern atio n al. (Doc. # 1-3 ¶¶ 14-31.) Texo removed the case pursuant to 28 U.S.C. § 1441, but without consent from A lb a n y International. (Doc. # 1.) Texo argued that the workers' compensation and
w r o n g f u l death claims could not be joined in the same action. (See Doc. # 1 ¶ 10.) In its a m e n d e d removal notice, Texo added that: (1) joinder of Albany International was im p rop er under Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996), o v e rr u le d on other grounds, Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2 0 0 0 ); and (2) Albany International was merely a nominal party.1 (Doc. # 10.) Texo also m o v e d to sever the products liability and negligence counts from the workers'
Parties can amend removal notices without leave of court any time within the thirty-day period f o r filing a removal notice. Watson v. Nuvell Fin. Servs., LLC, No. 2:07-cv-639-WKW, 2008 WL 1 1 0 9 2 3 , at *1 (M.D. Ala. Jan. 9, 2008).
c o m p e n s a tio n count because the claims were improperly joined. W ing ard s filed a timely Motion to Remand. (Doc. # 3.) II. STANDARD OF REVIEW
(Doc. # 11.)
F e d e ra l courts have a strict duty to exercise the jurisdiction conferred on them by C o n g re s s . Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However,
" [ f ]e d e ra l courts are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1 0 9 2 , 1095 (11th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U.S.C. § 1441, the law of the Eleventh Circuit favors remand where federal jurisd iction is not absolutely clear. "[R]emoval statutes are construed narrowly; where p la in tif f and defendant clash about jurisdiction, uncertainties are resolved in favor of re m a n d ." Id. III. DISCUSSION A district court must have original jurisdiction over a state court civil action for a d e f e n d a n t to remove it to federal court. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 4 8 2 U.S. 386, 392 (1987). Texo removed this case on the basis of diversity jurisdiction. (D o c . # 1.) For a case to be removed on diversity jurisdiction, there must be complete d iv e rs ity of citizenship no plaintiff in the case may be a citizen of the same state as any d e f e n d a n t, Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559, 1564 (11th Cir. 1 9 9 4 ) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)), and the amount in c o n tro v e rs y, exclusive of interest and costs, must exceed $75,000, 28 U.S.C. § 1332. A c c o rd in g to Texo's Notice of Removal, the amount in controversy exceeds $75,000 3
(D o c . # 1 ¶ 11), and citizenship is completely diverse the Wingards are citizens of A la b a m a , Texo is a citizen of South Carolina (its state of incorporation and principal p la c e of business), Albany International is a citizen of Alabama but fraudulently joined, a n d the remaining Defendants have not yet been served with a complaint and summons 2. (D o c . # 1 ¶¶ 1 & 6-9.)3 F o r purposes of determining complete diversity, courts will ignore any non-diverse p a rty that was fraudulently joined, Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir. 1 9 7 9 ),4 but the removing party has the "heavy" burden of proving fraudulent joinder, C r o w e v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). rec o g n izes three forms of fraudulent joinder: T h e first is when there is no possibility that the plaintiff can prove a cause o f action against the resident (non-diverse) defendant. Coker v. Amoco Oil C o ., 709 F.2d 1433, 1440 (11th Cir. 1983), superceded by statute on other g r o u n d s as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1 5 3 3 (11th Cir. 1993). The second is when there is outright fraud in the p la in tif f 's pleading of jurisdictional facts. Coker, 709 F.2d at 1440. In T a p sc o tt, 77 F.3d at 1355 . . . , a third situation of fraudulent joinder was id e n tif ie d i.e., where a diverse defendant is joined with a nondiverse d e f en d a n t as to whom there is no joint, several or alternative liability and w h e re the claim against the diverse defendant has no real connection to the c la im against the nondiverse defendant. Id. at 1360. The Eleventh Circuit
The "unanimity rule" requires all defendants to join in or consent to removal, but "a defendant th a t has not been served with process need not join in or consent to removal." Harris v. Pacificare Life & H e a lth Ins. Co., 514 F. Supp. 2d 1280, 1286 (M.D. Ala. 2007). As for the remaining parties, defendants sued under fictitious names are ignored for determining c i t iz e n s h i p diversity. 28 U.S.C. § 1441(a). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh C irc u it adopted as binding precedent all decisions handed down by the former Fifth Circuit prior to O c t o b e r 1, 1981.
T r ig g s v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). Texo is a ss e rtin g the third form of fraudulent joinder that Albany International has no joint, s e v e ra l, or alternative liability, and that the workers' compensation claim has no real c o n n e c t io n with the case (see Doc. # 10 ¶ 1) and has moved to sever the workers' c o m p e n s a t i o n claim as improperly joined (Doc. # 11). Texo must make arguments for f ra u d u le n t joinder and severing the workers' compensation claim because 28 U.S.C. § 1445(c) prohibits a defendant from removing a workers' compensation claim arising out o f state law to federal court. A federal court must either sever and remand a workers' c o m p e n s a tio n claim or remand the entire case. Brooks v. Paulk & Cope, Inc., 176 F. S u p p . 2d 1270, 1274 (M.D. Ala. 2001) (Albritton, J.). A s the Wingards' Brief in Support of Motion to Remand (Doc. # 3-2) d em o n stra te s , case law in this district leans overwhelmingly in the Wingards' favor. J u d g e Albritton's opinion in Brooks addressed this very issue of fraudulent joinder. B r o o k s relied on the language of Rule 20 of the Federal Rules of Civil Procedure d e sc rib in g proper joinder to determine whether a joinder was fraudulent. The court found th a t, in an action with a workers' compensation claim and other tort claims seeking s e v e ra l liability for damages in a work-related incident, joinder was proper because the c la im s involved (1) several liability, and (2) common questions of fact. Brooks, 176 F. S u p p . 2d at 1276; see Fed. R. Civ. P. 20(a)(2) ("Person . . . may be joined in one action as d e f e n d a n ts if: (A) any right to relief is asserted against them . . . severally . . . ; and (B) a n y question of . . . fact common to all defendants will arise in the action."). As Judge 5
F u ller reiterated in a later opinion in this district, claims arising from "the same incident" th a t "necessarily have several common questions of fact[,] . . . cannot be said to have no r e a l connection." Williams v. CNH Am., LLC, 542 F. Supp. 2d 1261, 1265 (M.D. Ala. 2 0 0 8 ) (citing Baker v. Tri Nations Express, Inc., 531 F. Supp. 2d 1307, 1313 n.6 (M.D. A la . 2008) (Watkins, J.) for a real connection between two separate negligence claims b e c au s e "they both relate to the same car accident and its underlying causes") (finding th a t there was a real connection between a claim against an employer for a work-related a c c id e n t and claims against the manufacturer for design defects and negligence); see also B r y a n v. Wausau Underwriters Ins. Co., No. 2:06-cv-1002-MEF, 2008 WL 1808325, at * 1 (M.D. Ala. Apr. 21, 2008) (summarizing the finding in Williams). The claims in this c a s e have sufficient connection and are properly joined. Finding that Texo's claim for fraudulently joinder fails, the court can only permit re m o v a l if it grants Texo's motion to sever on other grounds.5 Rule 21 of the Federal R u le s of Civil Procedure permits federal courts to "sever any claim against a party," even f o r the purpose of retaining jurisdiction, Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (1 1 th Cir. 1998) (noting district courts' authority under Rule 21 to "dismiss dispensable
Texo's other claim that removal is proper because Albany International is a nominal party (Doc. # 10) ties in with the severance argument. A nominal party can be ignored for purposes of determining c o m p l e t e removal, see Nunn v. Feltinton, 294 F.2d 450, 453 (5th Cir. 1961) ("It has been established fro m an early date that the joinder of formal or unnecessary parties cannot prevent the removal of an a c tio n to a federal court."), but § 1445(c) prohibits the removal of workers' compensation claims re g a rd le s s of whether the claims are against nominal parties. Thus, the issue of whether Albany In t e r n a t i o n a l is a nominal party translates into a question of whether the court should sever the Defendant.
n o n d i v e r s e parties to cure defects in diversity jurisdiction.").6 The trial court has "broad d is c r e t i o n ," however, in determining whether to sever claims. Anderson v. Moorer, 372 F .2 d 750 n.4 (5th Cir. 1967) ("Normally, the District Court has discretion under [Rule 21] in deciding whether to allow the dropping of parties."); Tillis v. Cameron, No. 1:07-cv0 0 7 8 - W K W , 2007 WL 2806770, at *5 (M.D. Ala. Sept. 25, 2007) ("The determination of w h e th e r to grant a motion to sever is left to the discretion of the trial court." (internal q u o tatio n marks and citation omitted)); see also Brunet v. United Gas Pipeline Co., 15 F .3 d 500, 505 (5th Cir. 1994) ("The trial court has broad discretion to sever issues to be trie d before it."). "Whether severance would facilitate . . . judicial economy is among the f a cto rs a court may examine while determining whether to sever  claims." Tillis, 2007 W L 2806770, at *5; see, e.g., Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 7 3 8 , 743 (7th Cir. 1985) ("Rule 21 gives the court discretion to sever any claim . . . if d o in g so will increase judicial economy." (internal quotation marks and citation o m itte d )); Baker, 531 F. Supp. 2d at 1318 (considering judicial economy in a severance d e te rm in a tio n ); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane § 1591 (2d e d . 1990) ("Rule 21 gives the court discretion to sever any claim and proceed with it s e p a ra te ly if doing so will increase judicial economy . . . .").
This discussion in Ingram relied on an earlier version of Rule 21 that stated "[p]arties may be d ro p p e d or added by order of the court on motion of any party or of its own initiative at any stage of the a c tio n and on such terms as are just." Ingram, 146 F.3d at 862 n.4. Rule 21 has since been amended in re le v a n t part to: "On motion or on its own, the court may at any time, on just terms, add or drop a party." The language conveys the same point, and the changes are merely stylistic, see Fed. R. Civ. P. 21 a d v i s o r y committee's notes.
T h e issue whether to sever workers' compensation claims does not exist in a v a c u u m . The court must be mindful of the practical effects in terms of judicial efficiency o f severing or refusing to sever claims. It would be inefficient for the court to remand the e n tire case if the state court severs the Wingards' workers' compensation claim. This d is tric t has already addressed at length the practice in Alabama state courts with respect to severing workers' compensation claims. For example, the Williams court concluded th a t "there appears to be significant discretion left to trial judges in Alabama as to w h ethe r to sever a workers' compensation claim from common law claims against third p a rties ," and that it is "far from being the `recognized practice'" for Alabama judges to se v e r these claims. 542 F. Supp. 2d at 1265; see Brooks, 176 F. Supp. 2d at 1276
(d is c u ss i n g district court cases from Alabama finding support for Alabama state judges th a t do not sever workers' compensation and tort claims). Both Williams and Brooks re m a n d e d the entire cases to state court. Williams, 542 F. Supp. 2d at 1267; Brooks, 176 F . Supp. 2d at 1277. This court in its discretion similarly finds that severing the workers' c o m p e n s a tio n claim against Albany International would not promote judicial economy. I V . CONCLUSION F o r the foregoing reasons, it is ORDERED that: 1. 2. 3. T h e Wingards' Motion to Remand (Doc. # 3) is GRANTED; T e x o 's Motion to Sever (Doc. # 11) is DENIED; T h is case is REMANDED to the Circuit Court for Montgomery County, A la b a m a ; 8
T h e Clerk of Court is DIRECTED to take appropriate steps to effect the re m a n d .
D o n e this 23rd day of September, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE
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