Alms v. Laboratory Corporation of America et al

Filing 55

Order for parties to file briefs as set out. The motions deadline previously set is reset to 1/6/12. ( Brief due by 12/9/2011) (Motions deadline reset to 1/6/2012.). Signed by Judge Kristi K. DuBose on 12/2/2011. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENDA H. ALMS,
Plaintiff,
v.
LEXIS NEXIS MEDICAL REVIEW
SERVICES, et al.,
Defendants.

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)
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) CIVIL ACTION NO. 10-00646-KD-M
)
)
)
)
ORDER

This matter is before the Court on a sua sponte review of the record.
Nearly a year ago, Defendant Lexis Nexis Occupational Health Solutions Inc. (identified in
the complaint and on the docket as “Lexis Nexis Medical Review Services”), Defendant Winn-Dixie
Montgomery, LLC, and former Defendant Laboratory Corporation of America Holdings (identified
in the complaint and on the docket as “Laboratory Corporation of America”) (collectively, “the
Removing Defendants”) removed this action from the Circuit Court of Baldwin County, Alabama on
the basis of diversity of citizenship. (Doc. 1). In their notice of removal, the Removing Defendants
argued that the citizenship of a fourth defendant, identified in the state court complaint as
“‘Charlene’, whose name is otherwise unknown” and also as “fictitious Defendant D being the
correct name of ‘Charlene,’” should be disregarded because “Charlene” was fraudulently joined
and/or is a fictitious defendant. (Doc. 1 at 6, ¶ 13 & n.3). Because “Charlene” is alleged in the
complaint to be an Alabama resident, (Doc. 1-1 at 12, ¶ 4), the Removing Defendants’ entreaty to
ignore her citizenship was critical, as her inclusion in the case would destroy diversity and divest
this Court of jurisdiction. See Legg v. Wyeth, 428 F.3d 1317, 1321 n.2 (11th Cir. 2005) (“Federal
diversity jurisdiction under 28 U.S.C. § 1332 requires ‘complete diversity’ — the citizenship of
every plaintiff must be diverse from the citizenship of every defendant.”). However, Plaintiff
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Brenda H. Alms (“Alms”) never filed a motion to remand, and, until now, the Court did not take it
upon itself to address the Removing Defendants’ arguments as to why the citizenship of an apparent
resident defendant ought to be ignored.
This Court has an independent and continuing obligation to confirm its subject matter
jurisdiction, even when the parties do not question its existence. Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 409, 410 (11th Cir. 1999) (“[I]t is well settled that a federal court is obligated to
inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” (citations omitted)).

Where a case has been removed from state court, the primary question is whether subject matter
jurisdiction existed at the time of removal. See Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th
Cir. 1983) (“Removability should be determined according to the plaintiff’s pleading at the time of
the [notice of] removal.” (internal quotation marks omitted)).
Accepting as true Plaintiff’s allegation that Defendant “Charlene” is an Alabama resident, it
appears to the Court that it is without jurisdiction to hear this case unless “Charlene” was
fraudulently joined (as the Removing Defendants have claimed) or, alternatively, that “Charlene” is
and was a fictitious defendant against whom all claims must be dismissed. See Richardson v.
Johnson, 598 F.3d 734, 738 (“As a general matter, fictitious-party pleading is not permitted in
federal court.”).
Accordingly, it is ORDERED that, on or before Friday, December 9, 2011, the parties shall
file briefs concerning 1) whether “Charlene” should be dismissed for having been fraudulently
joined (thereby avoiding remand); and 2) whether “Charlene” is a fictitious defendant (which would
result in the dismissal of all claims alleged against “Charlene” and thereby avoid remand).
It is FURTHER ORDERED that the motions deadline previously set for Friday, December

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9, 2011, is RESET to Friday, January 6, 2012.
DONE and ORDERED this the 2nd day of December 2011.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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