Watson v. General Electric, Inc et al

Filing 4

MEMORANDUM OPINION AND ORDER that the plaintiff's motion to remand is GRANTED, and this case is REMANDED to the Circuit Court of Morgan County, Alabama, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/26/2012. (AHI)

FILED
2012 Nov-26 AM 09:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KENNETH JOE WATSON,
Plaintiff,
vs.
GENERAL ELECTRIC, INC., et
al.,
Defendants.

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Civil Action No. CV-12-S-2661-NE

MEMORANDUM OPINION AND ORDER
This action is before the court on a motion to remand filed by plaintiff, Kenneth
Joe Watson.1 Plaintiff commenced this action in the Circuit Court of Morgan County,
Alabama on May 16, 2012.2 Defendant General Electric, Inc. (“GE”), was the only
party named as a defendant in the original complaint, which alleged that plaintiff’s
hand had been crushed in machinery while he was working in the line and scope of
his employment for GE, and asserted a single claim for damages under Alabama’s
Workers’ Compensation Act.3
Plaintiff filed an amended complaint in the state court on July 2, 2012.4 That
complaint added a second defendant, RWC, Inc. (“RWC”), and alleged new claims
1

See doc. no. 2 (Motion to Remand).

2

Doc. no. 1-1 (Complaint), at 2.

3

Id. at 3-5. See also Ala. Code § 25-5-1 et seq. (1975).

4

See doc. no. 1-6 (Amended Complaint).

for negligence, breach of warranty, and products’ liability against RWC and various
fictional defendants.5 RWC was served with the amended complaint on July 10,
2012.6
RWC filed a notice of removal on August 8, 2012,7 and alleged that the parties’
complete diversity of citizenship was the basis for jurisdiction in this court.8 Neither
RWC’s notice of removal, nor any other document filed with this court, indicated that
GE consented to the removal. Even so, RWC asserted that the claims against it were
fraudulently joined with the claims against GE, and that GE had not been served.9 As
a result, RWC believed that GE’s citizenship or consent was not relevant to removal.10
Plaintiff moved to remand the case to state court on August 15, 2012.11 Plaintiff
argued that there was no fraudulent joinder, and asserted that “[t]here is no complete
diversity of citizenship[,]” although he did not explain why that is true.12 RWC

5

Id. at 1, 4-11. Although plaintiff confusingly numbered those new claims as “Count One,”
“Count Two,” etc., see id. at 8-11, which might suggest they were the only claims plaintiff asserted,
it is clear that plaintiff did not intend to abandon his workers’ compensation claim against GE. See
id. at 4 ¶ 12 (“Plaintiff hereby realleages [sic] and adopts all of the foregoing paragraphs of the
[initial] complaint as if more fully set out herein as to his worker’s [sic] compensation claims.”).
6

Doc. no. 1 (Notice of Removal) ¶ 1.

7

Id.

8

Id. ¶ 6.

9

Id. ¶¶ 1, 4, 8.

10

Id. ¶¶ 3, 8.

11

Doc. no. 2 (Motion to Remand).

12

Id. ¶¶ 1, 3-4.

2

opposed the motion.13 Upon consideration, the motion will be granted.
I. LEGAL STANDARDS
A.

Federal Jurisdiction, Removal, and Remand
Motions to remand are governed by 28 U.S.C. § 1447(c), which contemplates

“two grounds for remanding a removed case: (1) lack of subject matter jurisdiction;
or (2) procedural defect in the removal of the case.” Russell Corp. v. American Home
Assurance Co., 264 F.3d 1040, 1043 (11th Cir. 2001) (citing Things Remembered, Inc.
v. Petrarca, 516 U.S. 124, 127-28 (1995); Florida Polk County v. Prison Health
Services, Inc., 170 F.3d 1081, 1083 (11th Cir. 1999)).14
District courts are “‘empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’ and which
have been entrusted to them by a jurisdictional grant authorized by Congress.”
University of South Alabama v. The American Tobacco Co., 168 F.3d 405, 409 (11th
13

See doc. no. 3 (Response to Motion to Remand).

14

The referenced statutory provision states that:

A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of the notice
of removal under section 1446(a). If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded. An
order remanding the case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal. A certified copy of the
order of remand shall be mailed by the clerk to the clerk of the State court. The State
court may thereupon proceed with such case.
28 U.S.C. § 1447(c).

3

Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)); see
also, e.g., Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1260-61 (11th Cir.
2000) (“Federal courts have limited subject matter jurisdiction, or in other words, they
have the power to decide only certain types of cases.”) (citing University of South
Alabama, 168 F.3d at 409-10).
RWC’s notice of removal asserted that jurisdiction was proper under 28 U.S.C.
§ 1332.15 Jurisdiction under that provision requires “complete diversity”: i.e., the
citizenship of every plaintiff must be diverse from the citizenship of every defendant.
See, e.g., Palmer v. Hospital Authority of Randolph County, 22 F.3d 1559, 1564 (11th
Cir.1994). The amount in controversy must exceed $75,000. See 28 U.S.C. §
1332(a).
B.

Removal Disfavored
It is well settled that the removal statutes should be narrowly construed. See,

e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 766 (11th Cir. 2010).
Moreover, the Eleventh Circuit recognizes that “there is a presumption against the
exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction
are to be resolved in favor of remand.” Russell Corp., 264 F.3d at 1050 (citing Burns
v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994)). The removing

15

Doc. no. 1 (Notice of Removal) ¶ 6.

4

defendant bears the burden of showing that removal is appropriate. See Williams v.
Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001); Kirkland v. Midland
Mortgage Co., 243 F.3d 1277, 1281 n.5 (11th Cir. 2001); Murphree v. American
Federation of Government Employees, AFL–CIO, 4:11–CV–2563–KOB, 2012 WL
1058358, at *2 (N.D. Ala. Mar. 27, 2012) (citing Leonard v. Enterprise Rent a Car,
279 F.3d 967, 972 (11th Cir.2002)).
C.

The Unanimity Rule
The “unanimity rule” mandates that, in cases involving multiple defendants, all

defendants properly joined and served must consent to removal. See 28 U.S.C. §
1446(b); see also Russell Corp., 264 F.3d at 1044 (citing Chicago, Rock Island, and
Pacific Railway Co. v. Martin, 178 U.S. 245, 247-48 (1900); In re Ocean Marine
Mutual Protection and Indemnity Ass’n, Ltd., 3 F.3d 353, 355-56 (11th Cir.1993); In
re Federal Savings & Loan Insurance Corp., 837 F.2d 432, 434 (11th Cir.1988));
Beard v. Lehman Brothers Holdings, Inc., 458 F. Supp. 2d 1314, 1319 (M.D. Ala.
2006).
A defendant’s failure to obtain unanimous consent of all defendants to the
notice of removal “is a defect in the removal procedure.” In re Bethesda Memorial
Hospital, Inc., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997) (citing In re Ocean Marine,
3 F.3d at 356 (holding that failure to comply with rules requiring all defendants to join
5

in removal constitutes a defect in removal procedure)). The unanimity rule “must be
strictly interpreted and enforced because of the significant federalism concerns arising
in the context of federal removal jurisdiction.” Russell Corp., 264 F.3d at 1049 (11th
Cir. 2001).
Despite the foregoing discussion, the unanimity rule “is not violated when the
alleged offender of the rule has not been served at the time the removal petition is
filed: ‘A defendant that has not been served with process need not join in or consent
to removal.’” Harris v. Pacificare Life & Health Insurance Co., 514 F. Supp. 2d 1280,
1286 (M.D. Ala. 2007) (quoting GMFS, L.L.C. v. Bounds, 275 F. Supp. 2d 1350, 1354
(S.D. Ala. 2003)).
D.

Fraudulent Joinder
The unanimity rule, as well as the requirement for complete diversity of

citizenship, does not apply when the non-diverse defendant is fraudulently joined for
the purpose of preventing removal. See Triggs v. John Crump Toyota, Inc., 154 F.3d
1284, 1287 (11th Cir. 1998). The burden of showing fraudulent joinder is a heavy one
that rests on the removing party. See Pacheco de Perez v. AT&T Company, 139 F.3d
1368, 1381 (11th Cir. 1998); Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.
1997). Fraudulent joinder is deemed to exist in three situations: (1) when there is no
possibility that a plaintiff can establish a cause of action against a non-diverse
6

defendant; (2) when there is outright fraud in the pleading of jurisdictional facts; or
(3) when a diverse defendant is joined with a non-diverse defendant, but there is no
joint, several, or alternative liability, and the claims against the respective defendants
have no real connection. Triggs, 154 F.3d at 1287 (citing Tapscott v. MS Dealer
Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996); Coker v. Amoco Oil Co., 709 F.
2d 1433, 1440 (11th Cir. 1983)).
II. ANALYSIS
This case is factually similar to Formosa v. Lowe’s Home Centers, Inc., 806 F.
Supp. 2d 1811 (N.D. Ala. 2011), a case currently pending before Chief Judge Sharon
Lovelace Blackburn after removal from state court. In Formosa, the plaintiff filed a
complaint in state court that alleged a claim against Lowe’s for worker’s
compensation benefits under the Workers’ Compensation Act of Alabama for injuries
sustained after plaintiff fell off of a stool at work. Id. at 1183-84; see also Ala. Code
1975 § 25-5-80 (1975). Plaintiff also asserted claims for negligent design, failure to
warn, and breach of warranty against an entity named “L.G. Sourcing.” Id. at 1184.
L.G. Sourcing removed the case to federal court based on diversity jurisdiction, and
argued that the plaintiff’s worker’s compensation claim was fraudulently joined with
the state-law claims asserted against L.G. Sourcing. Id. L.G. Sourcing moved to
sever and remand the workers’ compensation claim, while Formosa moved to remand
7

the entire case. Id. Chief Judge Blackburn severed the worker’s compensation claim
against Lowe’s and remanded it to state court, but retained jurisdiction over the tort
claims against L.G. Sourcing. Id. at 1193.
There is, however, at least one important procedural difference between this
case and Formosa.16 The plaintiff in Formosa waived her right to remand by not
moving to remand within thirty days of removal; thus, the removal was procedurally
proper, and the Court possessed subject matter jurisdiction based on diversity of
citizenship. Id. at 1192 (citing Lowrey v. Alabama Power Co., 483 F.3d 1184, 1215
n.65 (11th Cir. 2007)). As a result, Chief Judge Blackburn’s opinion in Formosa did
not consider “the question of whether remand of the entire case would have been
warranted if Formosa had filed her Motion to Remand within thirty days of removal.”
Id. at 1193.
In the instant case, however, plaintiff did timely file his motion to remand: i.e.,
RWC filed its notice of removal on August 8, 2012, and plaintiff moved to remand on
August 15, 2012.17 Thus, if this court has subject matter jurisdiction, then the court
must decide the question Formosa did not reach: is remand of the entire case
16

The court also notes that, unlike L.G. Sourcing in Formosa, the removing defendant here,
RWC, did not file a motion to sever the worker’s compensation claim. As discussed below, the
court lacks subject matter jurisdiction over that claim and must remand it to state court. See 28
U.S.C. §§ 1445(c). The question then is whether the whole case should be remanded (if subject
matter jurisdiction exists over the remaining claims against RWC).
17

See doc. no. 1 (Notice of Removal); doc. no. 2 (Motion to Remand).

8

warranted?
Of course, it is the antecedent issue — whether subject matter jurisdiction exists
— to which the court must first turn. See Smith v. GTE Corp., 236 F.3d 1292, 1299
(11th Cir. 2001); Galindo-Del Valle v. Attorney General, 213 F.3d 594, 598 n.2 (11th
Cir. 2000).
A.

Subject Matter Jurisdiction
1.

The workers’ compensation claim against GE

By statute, “[a] civil action in any State court arising under the workmen’s
compensation laws of such State may not be removed to any district court of the
United States.” 28 U.S.C. § 1445(c). The Eleventh Circuit interprets § 1445(c) as
depriving federal courts of subject matter jurisdiction over workers’ compensation
claims. Formosa, 806 F. Supp. 2d. at 1185-86 (citing Reed v. Heil Co., 206 F.3d 1055
(11th Cir. 2000); New v. Sports & Recreation, Inc., 114 F.3d 1092 (11th Cir. 1997);
Alansari v. Tropic Star Seafood Inc., 388 F. App’x 902 (11th Cir. 2010) (per curiam)).
Consequently, the court has no jurisdiction over the workers’ compensation claim
against GE, and that claim must be remanded to the Circuit Court of Morgan County,
Alabama.
That does not end the analysis. This court must also determine whether there
is subject matter jurisdiction over the claims against RWC. If such jurisdiction exists,
9

and removal is procedurally proper, then the court must decide whether to sever the
workers’ compensation claim, or remand the entire case.
2.

Diversity Jurisdiction
a.

Amount in controversy

The amount in controversy, exclusive of interest and costs, must exceed
$75,000 for diversity jurisdiction to exist. See 28 U.S.C. § 1332(a)(1). “Where a
plaintiff fails to specify the total amount of damages demanded, as is the case here,[18]
a defendant seeking removal based on diversity jurisdiction must prove by a
preponderance of evidence that the amount in controversy exceeds the $75,000
jurisdictional requirement.” Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972
(11th Cir. 2002); see also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th
Cir. 2010). RWC indicates that the amount in controversy exceeds $75,000, based on
plaintiff’s allegation that his right hand was crushed in machinery, and that he
incurred extensive expenses — for example, medical bills — as a result thereof.19 In
his motion to remand, plaintiff admits that RWC “sufficiently describes” the extent
of plaintiff’s injuries.20 Therefore, RWC has met its burden of demonstrating the
18

Neither plaintiff’s initial complaint nor his amended one request a specific monetary sum.
See doc. no. 1-1 (Complaint); doc. no. 1-6 (Amended Complaint).
19

Doc. no. 1 (Notice of Removal) ¶ 5.

20

Doc. no. 2 (Motion to Remand) ¶ 3. As further evidence that plaintiff agrees with RWC’s
statement of the amount in controversy, plaintiff’s challenge to subject matter jurisdiction focuses
only on the diversity of citizenship requirement. See id. ¶ 2.

10

amount in controversy exceeds $75,000.
b.

Complete diversity of citizenship

Diversity jurisdiction requires that the citizenship of RWC be diverse from that
of plaintiff. See 28 U.S.C. §1332(a); Palmer v. Hospital Authority of Randolph
County, 22 F.3d 1559, 1564 (11th Cir.1994). Plaintiff is a citizen of Alabama.21
RWC is a citizen of Michigan, by way of its incorporation there, and a citizen of either
Michigan or Wisconsin, by way of the location of its principal place of business.22
Plaintiff’s sole argument regarding the requirement for complete diversity of
citizenship is the following statement, contained within his motion to remand: “There
is no complete diversity of citizenship.”23 Plaintiff does not elaborate. Consequently,
the court finds that the parties are completely diverse.
c.

Fraudulent joinder

RWC makes opaque arguments regarding fraudulent joinder and its alleged
effect on the removability of this case. In its notice of removal, RWC argued that the
claims against it were fraudulently joined with plaintiff’s workers’ compensation
21

Doc. no. 1-1 (Complaint) ¶ 1.

22

Doc. no. 1 (Notice of Removal) ¶¶ 3, 6. Plaintiff’s amended complaint asserts that RWC’s
principal place of business is in Missouri. Doc. no. 1-6 (Amended Complaint) ¶ 16. Whether
RWC’s principal place of business is in Missouri, as plaintiff claims, or Michigan or Wisconsin, as
RWC claims, complete diversity is not destroyed. RWC also asserts that GE is a citizen of a state
other than Alabama, a fact that plaintiff does not specifically contest. Doc. no. 1 (Notice of
Removal) ¶ 3.
23

Doc. no. 2 (Motion to Remand) ¶ 4.

11

claim against GE.24 That belief apparently was based, at least in part, on the fact that
28 U.S.C. § 1445(c) forbids removal of the workers’ compensation claim against
GE.25 RWC contended that, because (in its view) the workers’ compensation against
GE must be severed from the tort claims against RWC, the assertion of claims against
both GE and RWC in the same complaint constitutes fraudulent joinder.26
“[D]istrict courts in Alabama analyzing removal jurisdiction have rejected
similar assertions of fraudulent joinder of worker’s compensation claims to third party
tort claims.” Formosa, 806 F. Supp. 2d at 1187-88 (citing cases). “[I]n an action with
a workers’ compensation claim and other tort claims seeking several liability for
damages in a work-related incident, joinder [is] proper because the claims involve (1)
several liability, and (2) common questions of fact.”

Wingard v. Guillot

Textilmaschinen GMBH, No. 2:08-cv-342-WKW, 2008 WL 4368884, at *3 (M.D.
Ala. Sept. 23, 2008) (citing Fed. R. Civ. P. 20(a); Williams v. CNH America, LLC, 542
F. Supp. 2d 1261, 1265 (M.D. Ala. 2008); Brooks v. Paulk & Cope, Inc., 176 F. Supp.
2d 1270, 1276 (M.D. Ala 2001)).
RWC confuses the removability of the claim against GE with the fraudulent

24

Doc. no. 1 (Notice of Removal) ¶ 4.

25

Id. ¶¶ 3-4 (citing and discussing § 1445(c)’s import before alleging fraudulent joinder), 6
(referring to “this action” as only the product liability claims against RWC), 8 (noting that RWC is
“the only removable defendant in this civil action”).
26

Doc. no. 3 (Response to Motion to Remand) ¶¶ 2-8.

12

joinder of that claim. RWC correctly asserts that workers’ compensation claims are
not removable pursuant to § 1445(c). “However, this does not mean that there is no
joint, several, or alternative liability; nor does it mean that the worker’s compensation
claim has no real connection to the claims against [RWC].” Williams, 542 F. Supp.
2d at 1265 (alteration supplied). RWC has not met its heavy burden in showing
fraudulent joinder, as none of the three instances of fraudulent joinder apply. See
Pacheco de Perez, 139 F.3d at 1381; Triggs, 154 F.3d at 1287. Even if fraudulent
joinder existed, it is unclear why that would matter to RWC for the purposes of
subject matter jurisdiction: according to RWC, GE is not a citizen of Alabama and,
therefore, would not destroy complete diversity.27
In RWC’s view, the nonremovable, workers’ compensation claim must be
severed when brought with tort claims in the same suit.28 The court interprets that
argument, as well as RWC’s claim that GE has not been served, as addressing the
procedural aspects of removal and remand, rather than the court’s subject matter
jurisdiction.
B.

The Procedural Propriety of Removal
RWC filed its notice of removal on August 8, 2012, after it had been served
27

Doc. no. 1 (Notice of Removal) ¶ 3. Plaintiff did not allege the citizenship of GE in either
of his complaints, or his motion to remand. See doc. no. 1-1 (Complaint); doc. no. 1-6 (Amended
Complaint); doc. no. 2 (Motion to Remand).
28

Id. ¶¶ 4 -5.

13

with the amended complaint on July 10, 2012.29 Therefore, the removal was timely.
See 28 U.S.C. § 1446(b)(3). Plaintiff requested remand “pursuant to 29 U.S.C. §
1447(c) or other appropriate remand grounds.”30 A motion to remand must be made
within thirty days after removal when the motion is based on “any defect other than
lack of subject matter jurisdiction[.]” 28 U.S.C. § 1447(c) (emphasis supplied).
Plaintiff met that deadline by filing his motion to remand on August 15, 2012, seven
days after RWC removed the case.31
1.

The rule of unanimity

Ordinarily, the “rule of unanimity” demands that all defendants in a case must
consent to removal: “When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to the
removal of the action.” 28 U.S.C. § 1446(b)(2)(A); see also Russell Corp., 264 F.3d
at 1044. RWC filed its notice of removal, but GE, perhaps because it knew the
workers’ compensation claim against it could not be removed under § 1445(c), did not
indicate its consent to the notice. RWC argues that GE’s consent is not needed to
effectuate removal.32

29

Doc. no. 1 (Notice of Removal) ¶ 1.

30

Doc. no. 2 (Motion to Remand), at 3.

31

Id. at 1.

32

Doc. no. 1 (Notice of Removal) ¶ 3.

14

The rule of unanimity does not apply when one of the defendants has not been
“properly joined and served.” 28 U.S.C. § 1446(b). The court has already rejected
RWC’s “fraudulent joinder” argument, and found that the claim against GE was
properly joined, even though it was not removable under § 1445(c). RWC’s notice
of removal also argued that GE was not properly served.33 Plaintiff, however,
indicated that “[t]here was confusion about service, which resulted in counsel for [GE]
contacting Plaintiff’s counsel and agreeing to accept service.”34 As plaintiff noted, GE
filed an answer to the suit in state court.35 Thus, GE effectively waived service, and
the rule of unanimity applies to bar removal of the action.
That conclusion certainly seems unfair to RWC, which would otherwise be able
to remove the state law claims against it. The claim against GE clearly cannot be
removed for lack of subject matter jurisdiction. See 28 U.S.C. § 1445(c); Formosa,
806 F. Supp. 2d. at 1185-86 (citing Reed v. Heil Co., 206 F.3d 1055 (11th Cir. 2000);
New v. Sports & Recreation, Inc., 114 F.3d 1092 (11th Cir. 1997); Alansari v. Tropic
Star Seafood Inc., 388 F. App’x 902 (11th Cir. 2010) (per curiam)). Moreover, 28
U.S.C. § 1446(a) requires that defendants who or which file a notice of removal must
comply with Rule 11. Thus, GE has little incentive to join RWC’s notice of removal.
33
34
35

Id.
Doc. no. 2 (Motion for Remand) ¶ 2.
Id.; see also doc. no. 2-2 (GE’s Answer).

15

Were GE to do so, it would make a legal contention — that a workers’ compensation
claim can be removed to federal court — that is unquestionably not supported by
existing law.
Nevertheless, retaining the rule of unanimity in the current situation is
suggested not only by § 1446(b), but also by 28 U.S.C. § 1441(c), which provides an
exception to the rule of unanimity for removal of claims based on federal question
jurisdiction, but not those based on diversity jurisdiction.
(c) Joinder of Falderal law claims and State Law claims
(1) If a civil action includes–
(A) a claim arising under the Constitution, laws, or treaties of the
United States . . . and
(B) a claim . . . that has been made nonremovable by statute, the
entire action may be removed if the action would be removable
without the inclusion of the [nonremovable] claim . . . .
(2) Upon removal of an action described in paragraph (1), the district
court shall sever from the action [the nonremovable claim] and shall
remand the severed claim[] to the State court from which it was
removed. Only defendants against whom a claim described in paragraph
(1)(A) [i.e., a federal question claim] has been asserted are required to
join in or consent to the removal under paragraph (1).
28 U.S.C. § 1441(c) (alternations and italicized emphases supplied, boldface
alterations in original). In other words, if a plaintiff asserts a workers’ compensation
claim against Defendant A (i.e., GE), and a claim based on federal law against
16

Defendant B, Defendant B may remove the case to federal court without the consent
of Defendant A. But Congress provided no such exception when, as here, the claims
asserted against Defendant B (i.e., RWC) are state law claims that form the basis of
diversity jurisdiction. See Penson Financial Services, Inc. v. Golden Summit Investors
Group, Ltd., No. 3:12-CV-300-B, 2012 WL 2680667, at *4 (N.D. Tex. July 5, 2012)
(finding that the rule of unanimity applied to removed cases based on diversity
jurisdiction, even after recent Congressional amendment of the removal statutes). As
a result, remand is proper, because the rule of unanimity is not satisfied.
2.

Severance

Even if the rule of unanimity did not apply, the court would remand after
answering the question not addressed in Formosa: should the entire case be
remanded, rather than severing the workers’ compensation claim and retaining
jurisdiction over the remaining tort claims? “Rule 21 of the Federal Rules of Civil
Procedure permits federal courts to ‘sever any claim against any party,’ even for the
purpose of retaining jurisdiction. The trial court has ‘broad discretion’ in determining
whether to sever claims.” Formosa, 806 F. Supp. 2d at 1187 (quoting Ingram v. CSX
Transportation Inc., 146 F.3d 858, 862 (11th Cir. 1998); Anderson v. Moorer, 372
F.3d 747 750 n.4 (5th Cir. 1967)). The court may consider judicial economy in
reaching its decision. Formosa, 806 F. Supp. 2d at 1187.
17

RWC relied heavily on Formosa’s explication of reasons to sever a workers’
compensation claim:36 “First, worker’s compensation claims are expedited in state
court and generally resolve much faster than [product liability] claims. Second, the
claims differ as to the damages that are recoverable.” Id. at 1190. Those rationales,
however, were dicta, because the basis of Formosa’s retention of jurisdiction over the
tort claims was waiver.
Formosa waived her right to move to remand these [tort] claims by not
moving to remand within thirty days of removal. Because subject matter
jurisdiction otherwise exists over these [tort] claims based on diversity
jurisdiction, the court may retain jurisdiction [over them], even if they
were improperly removed to this court. . . . The court does not now
address the question of whether remand of the entire case would have
been warranted if Formosa had [timely] filed her Motion to Remand[.]
Id. at 1192-93 (alterations supplied).
Additionally, Formosa observed that “several district courts in Alabama have
chosen to remand the entire case rather than sever and remand the nonremovable
worker’s compensation claims, particularly where the only basis for federal
jurisdiction was diversity jurisdiction, as here.” Id. at 1189 (citing Williams, 542 F.
Supp. 2d at 1265; Wingard v. Guillot Textilmaschinen GMBH, 2008 WL 4368884, at
*4; Bryant v. Wausau Underwriters, Ins. Co., No. 2:06-cv-1002-MEF, 2008 WL
1808325 (M.D. Ala. Apr. 21, 2008)) (emphasis supplied); see also Brooks, 176 F.

36

Doc. no. 3 (Response to Motion to Remand) ¶ 2.

18

Supp. 2d at 1274-77; Priest v. Sealift Services International, Inc., 953 F. Supp. 363,
364 (N.D. Ala. 1997). The court sees no reason to depart from that practice.
RWC argues that the court should sever the state tort law claims against it, and
retain jurisdiction over them, because severance is required and inevitable under
Alabama law.37 But, as other courts have noted, it is not certain that an Alabama trial
judge would sever the claims, rather than try the case as a whole. See Williams, 542
F. Supp. 2d at 1265; Brooks, 176 F. Supp. 2d at 1277; Priest, 953 F. Supp. at 364;
Wingard, 2008 WL 4368884, at *4. Thus, remand is proper so that the state court
may determine whether to sever the claims. That disposition furthers judicial
economy by preserving the possibility that all claims will be tried together in one
court, rather than piecemeal in both federal and state court.
III. CONCLUSION
For the reasons stated herein, plaintiff’s motion to remand is granted, and this
case is remanded to the Circuit Court of Morgan County, Alabama. The clerk is
directed to close this file, and to send certified copies of this opinion to the state court
clerk.
DONE and ORDERED this 26th day of November, 2012.

37

Doc. no. 3 (Response to Motion to Remand) ¶¶ 2-5.

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______________________________
United States District Judge

20