Bouier v. Lewis Trucking Company et al

Filing 19

MEMORANDUM OPINION AND ORDER directing as follows: 1) On or before 2/3/2009, counsel for the removing dfts shall file a brief in support of the removal papers further addressing subject matter jurisdiction in general and the Lowery case and its progeny, in particular; 2) On or before 2/10/2009, counsel for plf shall file a brief addressing these issues as well. Signed by Hon. Chief Judge Mark E. Fuller on 1/27/2009. (wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION K E N D R A BOUIER, P L A IN T IF F , v. L E W IS TRUCKING COMPANY, et al., DEFEN DANTS. ) ) ) ) ) C A S E NO. 2:08cv987-MEF ) ) ) )

M E M O R A N D U M OPINION AND ORDER T h is action is brought by Kendra Bouier, the widow of Julius Erving Bouier (" B o u ie r" ) as Administratrix of Bouier's estate against a variety of defendants. Bouier, an a p p lic a n t for employment with the Alabama Department of Corrections, died in a motor v e h i c le accident along with several other individuals who were in a van owned by the A la b a m a Department of Corrections. Although it was not being used in this way at the time o f the accident, the van had been modified for transporting prisoners. Plaintiff alleges that th e modifications to the van did not allow Bouier to escape from the van after it was involved in a head on collision with a Lewis Trucking Company truck. The Complaint alleges that d u e to negligence and wantonness of the various defendants Bouier and the others in the van w e r e killed. The estates of the other occupants of the van have filed similar lawsuits.1

Those actions are also pending in this Court. They are: Sonie Taylor v. Lewis T ru c k in g Co., et al., 2:08cv986-MHT; Jenny Simmons v. Lewis Trucking Co., et al., 2 :0 8 c v 9 8 8 -W K W ; Annette Fenn v. Lewis Trucking Co., et al., 2:08cv989-MHT; Joan Foye W y n n v. Lewis Trucking Co., et al., 2:08cv990-WKW; Bishop A. Ivey v. Lewis Trucking Co., e t al., 2:08cv991-WKW; Carolyn Kelley v. Lewis Trucking Co., et al., 2:08cv992-MHT.

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A ll of these lawsuits, except for the interpleader action, were initially filed in state c o u rt and removed to federal court. In each of those other lawsuits initially filed in state c o u rt, the attorney representing the plaintiff has filed a post-removal motion to remand. W h ile no such motion has yet been filed in this case, the Court has significant concerns about w h e th e r subject matter jurisdiction has been adequately shown by the removal papers. This is especially true given this Court's understanding of Lowery v. Alabama Power Co., 483 F .3 d 1184 (11th Cir. 2007) and its progeny. See, e.g., Thibodeaux v. Paccar, Inc., ___ F. S u p p . 2d ___, 2009 WL 27225 at *1-*3 (M.D. Ala. Jan. 6, 2009). A federal court is a court of limited of jurisdiction. Kokkonen v. Guardian Life Ins., 5 1 1 U.S. 375, 377 (1994). That is, a federal court is authorized to entertain only certain a c t io n s which the Constitution or Congress has authorized it to hear. Id. "It is to be p re su m e d that a cause lies outside this limited jurisdiction, ..., and the burden of establishing th e contrary rests upon the party asserting jurisdiction,...." Id. (citations omitted). At any tim e, the Court may, and indeed must, review sua sponte whether it possesses subject matter ju ris d ic tio n over an action before it. See, e.g., Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 4 0 5 , 409-11 (11th Cir.1999) (outlining a federal court's duty to sua sponte consider its own su b jec t matter jurisdiction); Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th C ir. 1985) (same); Employers Mut. Cas. Co. v. Evans, 76 F. Supp. 2d 1257, 1259 (N.D. Ala.

Additionally, there is an interpleader action pending in this Court which is related to the a c c id e n t. Canal Ins. Co. v. Fenn, et al., 2:08cv957-MEF. 2

1 9 9 9 ) ("[A] federal court is obligated to inquire into subject matter jurisdiction sua sponte w h e n e v e r it may be lacking."); see also Insur. Corp. of Ireland, Ltd. v. Compagnie des B a u x ite s de Guinee, 456 U.S. 694, 704 (1982). Accordingly, it is hereby ORDERED as follows: 1 . On or before February 3, 2009, counsel for the removing defendants shall file a b rie f in support of the removal papers further addressing subject matter jurisdiction in g e n e ra l and the Lowery case and its progeny, in particular. 2 . On or before February 10, 2009, counsel for plaintiff shall file a brief addressing th e s e issues as well. DONE this the 27th day of January, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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