Steel v. Viscofan USA, Inc.

Filing 18

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Plf's 2 Motion to Sever and for Partial Remand is DENIED; 2) Plf's 10 Motion to Remand is GRANTED, and this action is REMANDED to the Circuit Court of Montgomery County, Alabama , pursuant to 28 USC 1447(c); and 3) Dft's 5 Motion for Partial Dismissal of Plf's Complaint is held over for resolution by the Circuit Court of Montgomery County, Alabama; DIRECTING the Clerk to take appropriate steps to effectuate the remand. Signed by Honorable Judge Gray M. Borden on 1/19/2017. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KAWAYNE STEEL,
Plaintiff,
v.
VISCOFAN USA, INC.,
Defendant.

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Case No. 2:16-cv-808-GMB

MEMORANDUM OPINION AND ORDER
Pending before the court are Defendant’s Motion to Sever and for Partial Remand
(Doc. 2), Defendant’s Motion for Partial Dismissal of Plaintiff’s Complaint (Doc. 5), and
Plaintiff’s Motion to Remand (Doc. 10). For the reasons stated below, it is ORDERED
that Plaintiff’s Motion to Remand (Doc. 10) is GRANTED, and Defendant’s Motion to
Sever and for Partial Remand (Doc. 2) is DENIED. The case will be REMANDED to the
Circuit Court of Montgomery County, Alabama, and Defendant’s Motion for Partial
Dismissal of Plaintiff’s Complaint (Doc. 5) will remain pending before that court.1
I. FACTS AND PROCEDURAL HISTORY
Defendant Viscofan USA, Inc. (“Viscofan”) employed Plaintiff Kawayne Steel as a
machine operator in an industrial facility in Montgomery County, Alabama. On March
23, 2016, Steel cut his left arm as he fed a meat casing onto a machine, causing significant
injuries.

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According to the complaint, Viscofan improperly designed, manufactured,

The parties have consented to the exercise of full jurisdiction by the undersigned Magistrate Judge for all
proceedings in this case. See Docs. 16 & 17; 28 U.S.C. § 636(c).

installed, distributed, sold, or assembled this machine, causing Steel’s injuries and
resulting in claims pursuant to the Alabama Extended Manufacturer’s Liability Doctrine
(“AEMLD”) and for negligence and wantonness. 2

Steel also brings a workers’

compensation claim against Viscofan.
Viscofan removed the action on October 6, 2016 on the basis of diversity
jurisdiction pursuant to 28 U.S.C. § 1332. The notice of removal alleges that Viscofan is a
Delaware corporation with its principal place of business in Illinois, while Steel resides in
Alabama, and that the amount in controversy exceeds $75,000, exclusive of interest and
costs. Along with the notice of removal, Viscofan filed a motion (Doc. 2) that asks the
court to sever and to remand Steel’s workers’ compensation claim, but retain jurisdiction
over his remaining claims. Viscofan also filed a motion for partial dismissal (Doc. 5)
invoking the Alabama Workers’ Compensation Act’s exclusivity provisions to argue that
the AEMLD, negligence, and wantonness claims should be dismissed on the merits. In
response, Steel filed a motion to remand (Doc. 10) arguing for the entire action to be
remanded to state court under 28 U.S.C. § 1445(c).
II. DISCUSSION
This is a court of limited jurisdiction. Only cases that originally could have been
filed in federal court may invoke this court’s jurisdiction through removal from a state

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The complaint concludes with a claim entitled “Combined and Concurring Conduct of All Defendants,”
which merely incorporates the prior factual averments and states: “The conduct of all Defendants combined
and concurred to cause Plaintiff Kawayne Steel’s injuries.” Doc. 1-1 at 6. The court is not aware of an
independent cause of action under Alabama law for combined injury. As a result, the court does not treat
this allegation as an independent cause of action, but notes that this treatment has no impact on the core
questions addressed here.
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court. E.g., 28 U.S.C. § 1441(a); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.
1994). The “removing defendant bears the burden of proving proper federal jurisdiction.”
Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) (citing Williams v. Best
Buy Co., Inc., 269 F.3d 1316, 1319–20 (11th Cir. 2001)). In analyzing whether the
defendant has carried that burden, the “removal statutes are construed narrowly” and
“uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095 (citing Boyer v.
Snap-on Tools Corp., 913 F.2d 108 (3rd Cir. 1990); Coker v. Amoco Oil Co., 709 F.2d
1433 (11th Cir. 1983)).
A.

Remand of Actions Arising Under Alabama Workers’ Compensation Law
The interplay of the federal removal statutes and the Federal Rules of Civil

Procedure determines whether some or all of this case must be remanded to state court.
The parties are in agreement that some of the case—specifically, Steel’s workers’
compensation claim—must be remanded. This is because 28 U.S.C. § 1445(c) prohibits
the removal of a “civil action in any State court arising under the workmen’s compensation
laws of such State.” Steel’s claim, which is set forth in Count One of his complaint,
explicitly invokes the Workers’ Compensation Act of Alabama in seeking all damages for
his on-the-job injury to which the Act entitles him. Doc. 1-1 at 3–4. Although Steel does
not specify the relevant portion of the Act, Alabama Code § 25-5-31 creates the
employee’s right to file a civil action to receive compensation from his employer when he
is injured on the job. See Ala. Code § 25-5-31 (1975) (“When personal injury or death is
caused to an employee by an accident arising out of and in the course of his employment

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. . . [he] shall receive compensation by way of damages therefor from the employer.”).
The court finds that the private right of action created by § 25-5-31 is “an integral part of
Alabama’s workers’ compensation regime.” Reed v. Heil Co., 206 F.3d 1055, 1060 (11th
Cir. 2000) (remanding a retaliatory termination claim because it arose under § 1445(c)).
As a result, Steel’s workers’ compensation claim arises under Alabama workers’
compensation law within the meaning of § 1445(c) and is therefore nonremovable. See id.
While Steel and Viscofan agree to the remand of the workers’ compensation claim,
their positions otherwise diverge.

Viscofan urges the court to sever the AEMLD,

negligence, and wantonness claims from the workers’ compensation claim and to retain
jurisdiction over those claims despite remanding the workers’ compensation action to state
court. Doc. 2 at 1–2. Steel objects to this course of action on two grounds. First, Steel
argues that even the AEMLD, negligence, and wantonness claims arise under Alabama
workers’ compensation for purposes of § 1445(c), thus compelling remand of the entire
action. Second, he argues that there is no basis for severing his properly joined claims,
and the entire case must therefore be remanded. The court agrees with the second
proposition, but not the first.
Steel’s attempt to sweep all of his claims into the purview of 28 U.S.C. § 1445(c)
depends on overly broad interpretations of § 1445(c) and the Alabama Workers’
Compensation Act. Specifically, he claims that the Act authorizes him to proceed with his
workers’ compensation claim while also suing a third-party tortfeasor, and therefore any
third-party claim he brings for the same injury arises under Alabama workers’

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compensation law and cannot be removed under § 1445(c). Doc. 11 at 5–7 (citing Alabama
Code § 25-5-11(a) (1975)). The Eleventh Circuit employed a more nuanced analysis in
Reed when faced with the question of whether a claim for retaliatory discharge pursuant to
Alabama Code § 25-5-11.1 arises under Alabama workers’ compensation law. Reed, 206
F.3d at 1058–61. Categorizing retaliatory discharge as “a cause of action created by a
state legislature for workers discharged because they file workers’ compensation claims,”
the Eleventh Circuit distinguished this statutory retaliatory discharge cause of action from
similar common-law causes of action. Id. at 1059.

The court ultimately held that

retaliatory discharge arises under Alabama workers’ compensation law for purposes of
§ 1445(c), but only upon finding that the retaliatory discharge statute was “[c]odified
together with the remaining workers’ compensation laws” and “was passed to enhance the
efficacy of the overall workers’ compensation system,” making it an “integral part” of the
overall compensation scheme. Id. at 1060.
Steel’s causes of action for negligence and wantonness are precisely the type of
common-law claims distinguished by the Reed court.

These claims—found by the

Eleventh Circuit to be “so different” as to “have little persuasive force”—included a
common-law action for an employer’s intentional injury to its employees. Id. at 1059–60.
Negligence and wantonness claims are more analogous to this common-law tort than to
Reed’s statutory retaliatory discharge claim.

And the court is not persuaded that

common-law claims for negligence and wantonness are subsumed by the workers’
compensation scheme solely because Alabama Code § 25-5-11(a) authorizes an employee

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to bring those claims while simultaneously maintaining a claim under the Alabama
Workers’ Compensation Act.

Most significantly, the negligence and wantonness

doctrines, as creatures of the common law, existed before and wholly independent from the
Act, and have not been codified in the Act. This court therefore joins other district courts
sitting within the State of Alabama in finding that common-law tort claims, such as
negligence and wantonness claims, do not arise under the Alabama Workers’
Compensation Act. See Moore v. CNA Found., 472 F. Supp. 2d 1327, 1329 n.* (M.D. Ala.
2007) (citing Patin v. Allied Signal, Inc., 77 F.3d 782 (5th Cir. 1996), and finding that
common-law claims for outrage, fraud, civil conspiracy, and intentional infliction of
mental anguish against an employer’s workers’ compensation insurer do not arise under
workers’ compensation law for purposes of 28 U.S.C. § 1445(c)); Raye v. Employer’s Ins.
of Wausau, 345 F. Supp. 2d 1313, 1316 (S.D. Ala. 2004) (“[C]laims for outrage and
negligence do not trigger application of Section 1445(c).”); see also Payne v. J.B. Hunt
Transp., Inc., 154 F. Supp. 3d 1310, 1315 (M.D. Fla. 2016) (holding that common-law
negligence claims do not implicate § 1445(c) despite statutes that “permit an employee to
bring a traditional common law action in lieu of proceedings” under the Florida workers’
compensation scheme).
Steel’s AEMLD claim likewise does not arise under Alabama workers’
compensation law. Alabama law traditionally required privity of contract between an
injured party and the manufacturer of the injuring product. See Tuscumbia City Sch. Sys. v.
Pharmacia Corp., 871 F. Supp. 2d 1241, 1247 (N.D. Ala. 2012). Although the privity

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requirement had been relaxed somewhat over time, in 1976 “the Alabama Supreme Court
formally restated the elements of a manufacturer’s liability claim in two cases decided on
the same day,” and “thereby christened the ‘extended’ manufacturers’ liability doctrine.”
Id. (citing Atkins v. Am. Motors Corp., 335 So. 2d 134 (Ala. 1976), and Casrell v. Altec
Indus., Inc., 335 So. 2d 128 (Ala. 1976)). The AEMLD thus has a judicial genesis, not a
legislative one, and certainly not one within the same legislation as the Alabama Workers’
Compensation Act. As with other “court-created tort remed[ies]” distinguished by the
Eleventh Circuit in Reed, AEMLD claims do not arise under the Alabama workers’
compensation scheme. Reed, 206 F.3d at 1059; see also Formosa v. Lowe’s Home Ctrs.,
Inc., 806 F. Supp. 2d 1181, 1190 (N.D. Ala. 2011) (remanding workers’ compensation
claim as arising under § 1445(c) while severing and retaining jurisdiction over AEMLD
and other tort claims due to the plaintiff’s waiver of procedural removal defects).
B.

Severance and Partial Remand
Although § 1445(c) compels the remand of only Steel’s workers’ compensation

claim, the court finds no basis for severing the remaining claims and retaining jurisdiction
over them. Here again, Reed is instructive. The Eleventh Circuit in Reed authorized the
district court to sever and to remand a retaliatory discharge claim arising under Alabama
workers’ compensation law while retaining a claim under the Americans with Disabilities
Act (“ADA”). Reed, 206 F.3d at 1063. But there is a fundamental distinction in this
context between federal question claims, such as Reed’s ADA claim, and Steel’s claims

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based in diversity jurisdiction.3 Congress has required severance and partial remand in
one specific instance: where a federal question claim is joined in the same action with “a
claim not within the original or supplemental jurisdiction of the district court or a claim that
has been made nonremovable by statute.” 28 U.S.C. § 1441(c)(1); see also 28 U.S.C. §
1441(c)(2) (“Upon removal . . . the district court shall sever from the action all
[nonremovable] claims . . . and shall remand the severed claims . . . .”). The retaliatory
discharge and ADA claims in Reed fit this profile; Steel’s claims do not. Therefore,
§ 1441(c) does not allow for the severance and partial remand of Steel’s claims. See, e.g.,
Phillips v. R.R. Dawson Bridge Co., LLC, 2014 WL 3970176 at *3 (N.D. Ala. Aug. 12,
2014) (holding that § 1441(c) does not require severance of diversity claims); Bryant v.
Wausau Underwriters Ins. Co., 2008 WL 1808325, at *2 (M.D. Ala. Apr. 21, 2008)
(“Indeed, § 1441(c) expressly authorizes a district court to exercise jurisdiction over a
claim removed pursuant to § 1331 and remand ‘otherwise non-removable claims or causes
of action.’ There is no such authority in claims removed pursuant to § 1332 . . . .
Accordingly, this Court holds that removal of this cause of action is prohibited by
§ 1445(c).”).
The court acknowledges that at least one district court sitting within the Eleventh
Circuit has reached the conclusion that Reed “applies equally in the diversity context.”

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Steel’s negligence, wantonness, and AEMLD claims satisfy the statutory prerequisites for diversity
jurisdiction in that the parties are completely diverse and the amount in controversy exceeds $75,000,
exclusive of interest and cost. See 28 U.S.C. § 1332; Docs. 1 at 2–3 & 14-1. The court disregards all claims
purportedly brought against fictitious parties because this practice is not allowed in federal court.
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc., 114
F.3d 1092, 1094 n.1 (11th Cir. 1997)).
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Lamar v. Home Depot, 907 F. Supp. 2d 1311, 1315 (S.D. Ala. 2012). As noted in Lamar:
“Some courts have determined that the retention of a federal claim despite remand of the
worker’s compensation claim under Section 1445(c) can be justified under Section
1441(c), and the Court agrees.” Id. at 1314.

This court likewise agrees with the

uncontroversial proposition that § 1441(c) allows for severance and partial remand. But it
does so only for claims “arising under the Constitution, laws, or treaties of the United
States (within the meaning of section 1331 of this title).” 28 U.S.C. § 1441(c)(1)(A).
Ultimately, this court will not read out of § 1441(c) the distinction between claims rooted
in federal question and diversity jurisdiction, or join in Lamar’s holding that Reed compels
such a result. See id. at 1314–17. Rather, this court finds that “Reed can not be interpreted
as authority for severing and remanding worker’s compensation claims in cases that are
removed under § 1332 (diversity) because Reed involved a case removed under § 1331
(federal question).” Bryant, 2008 WL 1808325 at *2 (citing Williams v. CNH Am., LLC,
542 F. Supp. 2d 1261, 1266 (M.D. Ala. 2008), which holds that Reed is controlling
authority only where federal question claims are joined with a workers’ compensation
claim). Only this result “corresponds with the heightened federalism concerns underlying
removal jurisdiction based on diversity citizenship,” Phillips, 2014 WL 3970176 at *4, and
only this result jibes with this court’s interpretation of Reed in the context of §§ 1441(c)
and 1445(c).
Although 28 U.S.C. § 1441(c)’s severance provisions are inapposite, Viscofan
argues that Federal Rule of Civil Procedure 21 provides the mechanism by which the court

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might sever Steel’s workers’ compensation claim from his negligence, wantonness, and
AEMLD claims. Doc. 14 at 2 n.1. Rule 21 does allow the court to “sever any claim
against a party.” Fed. R. Civ. P. 21. However, Rule 21 severance is generally considered
proper only when claims have been misjoined under Federal Rule of Civil Procedure 20.
E.g., Alhassid v. Bank of Am., N.A., 60 F. Supp. 3d 1302, 1326 (S.D. Fla. 2014) (citations
omitted). There is no such allegation here, as all claims arise out of the same accident. See
Fed. R. Civ. P. 20(a)(2)(A). Instead, Viscofan claims that the non-workers’ compensation
claims are improperly joined because the Alabama Workers’ Compensation Act provides
the exclusive remedy for Steel’s alleged injury. Doc. 5 at 4 (citing Ala. Code §§ 25-5-52 &
-53 (1975)). Viscofan has offered no support for the proposition that it is misjoinder to
pair a workers’ compensation claim with a claim that may be barred by workers’
compensation exclusivity. Doc. 14 at 4, n.4; see generally Doc. 5. Moreover, even if
Viscofan is correct that all non-workers’ compensation claims are barred and should be
dismissed under Federal Rule of Civil Procedure 12(b)(6), the court must resolve the
question of its subject matter jurisdiction prior to addressing any other pending motions.
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (“[A] federal court
must remand for lack of subject matter jurisdiction notwithstanding the presence of other
motions pending before the court.”); Wilks v. Callahan, 2009 WL 2243702, at *3 (S.D.
Ala. July 24, 2009) (“Absent federal jurisdiction, this Court lacks the power to decide
Defendants’ pending Motion to Dismiss, and must immediately remand this action to state
court without reaching the question of whether Plaintiffs have stated cognizable claims

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against Defendants.”).4
Alternatively, in certain limited circumstances Rule 21 severance may also be
justified by “considerations of judicial economy, case management, prejudice to parties,
and fundamental fairness”—even where Rule 20 allows joinder. Barber v. Am.’s
Wholesale Lender, 289 F.R.D. 364, 368 (M.D. Fla. 2013) (citations omitted). While not
raised in Viscofan’s later pleadings,5 the Motion to Sever and for Partial Remand advances
an efficiency argument in noting that the workers’ compensation action is a non-jury
proceeding while Steel has demanded a jury trial on the tort claims. Doc. 2 at 1–2. Even
so, the court is not convinced that the severance of Steel’s workers’ compensation and
non-workers’ compensation claims would increase efficiency. See, e.g., Wingard v. Guillot
Textilmaschinen GMBH, 2008 WL 4368884, at *4 (M.D. Ala. Sept. 23, 2008) (finding
“that severing the workers’ compensation claim [from other tort claims arising out of the
same on-the-job injury] would not promote judicial economy”). The premise that the
workers’ compensation and tort actions “should not be tried together under Alabama law,”
Doc. 2 at 2, is also in dispute. See Priest v. Sealift Servs. Int’l, Inc., 953 F. Supp. 363, 364
(N.D. Ala. 1997) (“This court understands that some Alabama trial judges under similar
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Because the court cannot consider Viscofan’s argument for dismissal prior to assessing its jurisdiction
over this action, and herein finds that the case must be remanded, Viscofan’s motion for partial dismissal
(Doc. 5) is held over for resolution by the Circuit Court of Montgomery County, Alabama.
5
Instead, Viscofan’s later pleadings introduce the argument that the court has no discretion to remand the
tort claims if they have been properly removed. See Doc. 14 at 10. As stated above, the court finds that
Steel’s tort claims were not properly removed in as much as they were joined upon removal with a
nonremovable workers’ compensation action. See Phillips, 2014 WL 3970176, at *5 (N.D. Ala. Aug. 12,
2014) (“In sum, the workers’ compensation claim . . . is not fraudulently joined with the other claims in this
action. Since it is not fraudulently joined, there is no basis to sever it from the other claims in order to
establish proper diversity jurisdiction. Instead, the case is due to be remanded.”); Bryant, 2008 WL
1808325 at *2 (holding that the “removal of [diversity claims joined with nonremovable claims in the same]
action is prohibited by § 1445(c)”).
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procedural circumstances, instead of severing a workers’ compensation count from a tort
count, try to a jury the tort count against alleged non-employer tortfeasors while reserving
to themselves the separate workers’ compensation claim based on the same evidence, thus
saving two trials.”). This is particularly true where severance undeniably creates its own
inefficiencies by requiring the parties to litigate parallel lawsuits in two forums relating to
the same nucleus of facts. Without a stronger showing, the court declines to exercise its
discretion to sever Steel’s tort claims from his workers’ compensation claim. The entire
action is due for remand.
III. CONCLUSION
For the foregoing reasons, it is ORDERED as follows:
1.

Plaintiff’s Motion to Sever and for Partial Remand (Doc. 2) is DENIED;

2.

Plaintiff’s Motion to Remand (Doc. 10) is GRANTED, and this action is

REMANDED to the Circuit Court of Montgomery County, Alabama, pursuant to 28
U.S.C. § 1447(c); and
3.

Defendant’s Motion for Partial Dismissal of Plaintiff’s Complaint (Doc. 5) is

held over for resolution by the Circuit Court of Montgomery County, Alabama.
The Clerk of the Court is DIRECTED to take appropriate steps to effectuate the
remand.
DONE this 19th day of January, 2017.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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