Braswell Wood Company, Incorporated v. Waste Away Group, Inc. et al

Filing 81

MEMORANDUM OPINION AND ORDER directing that Plaintiff's 67 Renewed Motion to Remand is DENIED; Defendants shall inform the court on or before June 22, 2011, by notice or motion, if this Order renders moot their pending 76 Motion for Entry of Partial Final Judgment Pursuant to Rule 54(b). Signed by Chief Judge William Keith Watkins on 6/9/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BRASWELL WOOD COMPANY, INC.,
Plaintiff,
v.
WASTE AWAY GROUP, INC.,
et al.,
Defendants.

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CASE NO. 2:09-CV-891-WKW [WO]

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Renewed Motion to Remand (Doc. # 67), to which
Defendants responded (Doc. # 75). Plaintiff contends that the court now lacks subject matter
jurisdiction and that Defendants’ removal of this case on September 18, 2009, was improper.
(Doc. # 67, at 2-3.) Defendants argue that Plaintiff’s arguments on the propriety of removal
are untimely and that the court should retain subject matter jurisdiction. (Doc. # 75, at 3.)
For the reasons that follow, Plaintiff’s Renewed Motion to Remand is due to be denied.
I. BACKGROUND
The convoluted procedural background of this case is pertinent to Plaintiff’s present
motion. On June 12, 2008, Plaintiff, an Alabama corporation, filed its Class Action
Complaint against Waste Away Group, Inc. (“Waste Away”), in the Circuit Court of Bullock
County, Alabama (Doc. # 1, Ex. 3, at 3, 5). On June 17, 2009, Plaintiff filed an Amended
and Restated Class Action Complaint which named Waste Management, Inc. (“Waste
Management”), a non-Alabama citizen, as a defendant (Doc. # 1, Ex. 1). On September 18,

2009, Defendants removed this case to this court on the basis of 28 U.S.C. § 1332(d)(2) (the
Class Action Fairness Act) and 28 U.S.C. § 1441. (Doc. # 1.) On October 19, 2009, Plaintiff
moved to remand the case back to state court on the basis of 28 U.S.C. § 1446(b) and Lowery
v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007). Specifically, Plaintiff argued that
based on the unspecified damages pled in the Amended and Restated Complaint, Defendants’
removal was procedurally improper under the second paragraph of § 1446(b) because it was
not based on a document received from Plaintiff as required by Lowery, 483 F.3d at 1213-14.
(Doc. # 2, at 2.)
On March 1, 2010, nearly four months after Plaintiff’s Motion to Remand came under
submission, Plaintiff moved to withdraw it (Doc. # 12). Plaintiff’s motion was granted (Doc.
# 13); the Motion to Remand was withdrawn; and on March 11, 2010, Plaintiff filed a
Second Amended Complaint (Doc. # 17). The Second Amended Complaint included a
federal RICO claim against both Defendants, and Plaintiff pled that the court had subject
matter jurisdiction under both 28 U.S.C. §§ 1331 and 1332(d). On August 10, 2010, pursuant
to Defendants’ Motion to Dismiss (Doc. # 21), the court dismissed Plaintiff’s federal RICO
claim against both Defendants for failure to state a claim (Doc. # 38, at 10).1 Plaintiff’s only
remaining claim is its proposed class action breach of contract claim against Waste Away,
an Alabama citizen (Doc. # 17, at 15-16).2

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Plaintiff also filed a motion for reconsideration (Doc. # 48) of the August 10, 2010 order, which
the court denied (Doc. # 65).
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Like Defendants (Doc. # 75, at 3 n.3), the court also observes that Plaintiff describes its present
case as consisting of multiple state law claims. (Doc. # 67, at 2 (“The only claims now remaining are

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II. STANDARD OF REVIEW
In cases where a federal district court has original subject matter jurisdiction, 28
U.S.C. § 1367(a) states that “the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States
Constitution.” “[Section 1367] reflects a dichotomy between a district court’s power to
exercise supplemental jurisdiction, § 1367(a), and its discretion not to exercise such
jurisdiction, § 1367(c).” Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 742 (11th
Cir. 2006). “Section 1367(c) gives a court discretion to dismiss a supplemental claim or
party when ‘the district court has dismissed all claims over which it has original
jurisdiction.’” Palmer v. Hosp. Auth. of Randolph Cnty., Ga., 22 F.3d 1559, 1568 (11th Cir.
1994) (quoting 28 U.S.C. § 1367(c)(3)).
III. DISCUSSION
Plaintiff contends that the court lacks subject matter jurisdiction because the only
remaining claim is a proposed state law class action claim, and Defendants cannot prove that
the amount in controversy exceeds $5,000,000 as required by 28 U.S.C. § 1332(d)(2) and
Lowery. Defendants oppose Plaintiff’s motion arguing that the court should continue to
exercise subject matter jurisdiction, and Plaintiff’s amount in controversy argument is
misplaced. For the following reasons, Plaintiff’s motion is due to be denied.
common law causes of action.”).) That assertion is belied by the Second Amended Complaint (Doc. # 17)
and the August 10, 2010 order (Doc. # 38), which leave Plaintiff with only a breach of contract claim
against Waste Away.

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Plaintiff’s motion challenges the court’s subject matter jurisdiction on the basis that
Defendants improperly removed this case under § 1446(b) and Lowery. Plaintiff’s Lowery
argument is in error because the propriety of Defendants’ September 18, 2009 removal is no
longer at issue. Lowery, 483 F.3d at 1213 n.64 (“[W]here the plaintiff challenges removal
before judgment but after the thirty-day period [for challenging the propriety of removal] has
lapsed, the court is no longer considering the propriety of the removal, but instead, whether
subject matter jurisdiction exists at all.”). Not only was Plaintiff’s present motion filed far
outside the thirty-day window for challenging the propriety of the September 2009 removal,
but Plaintiff’s Second Amended Complaint included a RICO claim that unquestionably
invoked this court’s subject matter jurisdiction and obviated any inquiry into the propriety
of Defendants’ removal. See Pegram v. Herdrich, 530 U.S. 211, 215 n.2 (2000) (Where the
plaintiff amended her complaint to include a federal question after removal, the federal court
“ha[d] jurisdiction regardless of the correctness of removal.”). Plaintiff’s Renewed Motion
to Remand therefore raises the question whether this court retains subject matter jurisdiction
to hear Plaintiff’s remaining breach of contract claim against Waste Away, which like
Plaintiff is an Alabama citizen. Lowery’s receipt from the plaintiff rule, which is rooted in
the procedural removal language of 28 U.S.C. § 1446(b) (paragraph two), has no application
to the substantive question of the court’s subject matter jurisdiction. 483 F.3d at 1213 n.64
(“In considering these [after the thirty-day period] challenges to jurisdiction, the court may
look to any relevant information the parties may present, up until the time of the challenge
to jurisdiction.”); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir. 2010)
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(“The substantive jurisdictional requirements of removal do not limit the types of evidence
that may be used to satisfy the preponderance of the evidence standard [for establishing
removal jurisdiction].”). Though Plaintiff’s Renewed Motion to Remand is hardly instructive
on the present jurisdictional question, the court recognizes its “obligation . . . to inquire into
jurisdiction whenever the possibility that jurisdiction does not exist arises.” Johansen v.
Combustion Eng’g, Inc., 170 F.3d 1320, 1328 n.4 (11th Cir. 1999). Therefore, the court
turns to the jurisdictional inquiry.3
It is undisputed that the court had supplemental jurisdiction over Plaintiff’s breach of
contract claim against Waste Away at the time of dismissal of Plaintiff’s federal RICO claim.
(See Doc. # 38, at 1 (Because the court has federal question jurisdiction, “[i]t is no longer
necessary to determine whether jurisdiction also exists under the diversity [statute] and class
action removal statute[].”)); 28 U.S.C. § 1367(a). Plaintiff now erroneously contends that
subject matter jurisdiction is lacking because the court “dismissed the RICO claim,” thus
“eliminat[ing] the only basis for its jurisdiction.” (Doc. # 67, at 2.)
“[W]hen a court grants a motion to dismiss for failure to state a federal claim, the
court generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C.
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Plaintiff’s Renewed Motion to Remand is predicated only on its theory that Defendants have not
met their burden of establishing the amount in controversy as required by Lowery. (Doc. # 67, at 1-3.)
Though Plaintiff cites its earlier briefing from its initial Motion to Remand (Doc. # 67, at 2 n.1 (citing
Docs. # 2, 11)), Plaintiff does not argue here that diversity jurisdiction under CAFA is inappropriate
based on the citizenship of the parties. The court does not reach that issue because it exercises its
supplemental jurisdiction over Plaintiff’s remaining proposed state law class action claim. See infra.
Therefore, the court need not determine the makeup and citizenship of Plaintiff’s putative class, a
jurisdictional fact that remains unclear from the Second Amended Complaint (Doc. # 17, at 5 (The
contract subclass includes “all persons and entities within the United States who entered into a contract
with Defendant Waste Away Group, Inc.”); cf. Doc. # 2, at 4); see 28 U.S.C. § 1332(d)(4).

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§ 1367, over pendent state-law claims.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
“Among the factors a district court should consider in exercising its discretion are judicial
economy, convenience, fairness, and comity.” Rowe v. City of Fort Lauderdale, 279 F.3d
1271, 1288 (11th Cir. 2002). “If the district court does decline to exercise supplemental
jurisdiction, these claims shall be remanded to state court, rather than dismissed, because this
case was originally filed in state court and removed to federal court pursuant to 28 U.S.C.
§ 1441.” Lewis v. City of St. Petersburg, Fla., 260 F.3d 1260, 1267 (11th Cir. 2001).
Judicial economy, convenience, and fairness all weigh heavily in favor of the court
retaining supplemental jurisdiction over Plaintiff’s remaining state law claim against Waste
Away. This case has been pending in this court for over a year and a half; the court is
intimately familiar with the nature and scope of Plaintiff’s claim; and it would be a waste of
judicial resources to remand this case to state court after so much time and resources have
been expended in this forum. It would also be inconvenient to both parties to further delay
discovery, class certification, dispositive motions, and trial in a case that was originally filed
on June 12, 2008. (Doc. # 1, Ex. 3, at 3.) Further, the deadline for Plaintiff to amend its
Second Amended Complaint has passed (Doc. # 62), and it would be unfair to Waste Away
to allow Plaintiff to retreat to state court and potentially pursue another bite at the pleading
apple. (See Doc. # 65, at 5 n.2 (describing Plaintiff’s previous bites).) Finally, Plaintiff’s
remaining breach of contract claim is not novel or complex, and this factor militates in favor
of an exercise of supplemental jurisdiction. Based on the nature and history of this case, and
the considerable amount of time and energy invested by the parties and the court in this
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matter, the court chooses, in its discretion, to retain supplemental jurisdiction over Plaintiff’s
remaining breach of contract claim against Waste Away.
IV. CONCLUSION
Accordingly, it is ORDERED that Plaintiff’s Renewed Motion to Remand (Doc. # 67)
is DENIED. Defendants shall inform the court on or before June 22, 2011, by notice or
motion, if this Order renders moot their pending Motion for Entry of Partial Final Judgment
Pursuant to Rule 54(b).
DONE this 9th day of June, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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