Rogers v. Southern Design and Mechanical, Inc. et al

Filing 47

ORDER REMANDING CASE TO STATE COURT: granting 27 and 39 Motion(s) to Remand. Signed by Honorable Susan O. Hickey on August 21, 2018. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
LEONARD ROGERS
v.

PLAINTIFF
CASE NO. 1:18-CV-01020

SOUTHERN DESIGN AND MECHANICAL,
INC.; GRACO, INC; NIBCO, INC.;
PARKER-HANNIFIN CORPORATION;
JOHN DOES III-X
PARKER-HANNIFIN CORPORATION

DEFENDANTS
CROSS-CLAIMANT

v.
GRACO, INC; NIBCO, INC.; SOUTHERN
DESIGN AND MECHANICAL, INC.
SOUTHERN DESIGN AND MECHANICAL, INC.

CROSS-DEFENDANTS
CROSS-CLAIMANT

v.
GRACO, INC.

CROSS-DEFENDANT
ORDER

Before the Court are Plaintiff’s Motion to Remand (ECF No. 27) and Motion to Remand
as to Nibco, Inc.’s Amended Notice of Removal. ECF No. 39. Separate Defendant Nibco, Inc.
(hereinafter “Nibco”) has filed responses to both motions. ECF Nos. 36, 41. Plaintiff has filed
replies to Nibco’s responses. ECF Nos. 38, 44. The Court finds this matter ripe for consideration.
BACKGROUND
Plaintiff filed his original complaint against ten John Doe defendants on June 25, 2015, in
the Circuit Court of Union County, Arkansas. ECF No. 1-3, p. 1. In his initial complaint, Plaintiff
alleged that while working for Chemtura Corporation, doing business as Great Lakes Chemical

Corporation, a pneumatic pump malfunctioned and caused him to be exposed to bromine, causing
severe chemical burns. On February 1, 2016, Plaintiff filed an Amended Complaint (hereinafter
“First Amended Complaint”), asserting that Separate Defendant Graco, Inc. (hereinafter “Graco”)
was the manufacturer and assembler of the pneumatic pump at issue and that Separate Defendant
Southern Design and Mechanical, Inc. (hereinafter “Southern Design”) sold the pneumatic pump
to Great Lakes Chemical Corporation. ECF No. 1-3, pp. 7, 10. Plaintiff states that Graco is
incorporated under Minnesota law and that Graco maintains its principal place of business in
Minnesota. ECF No. 1-3, p. 7, ¶ 6. Plaintiff further states that Southern Design was incorporated
in Arkansas and maintains its principal place of business in Arkansas. ECF No. 1-3, p. 7, ¶ 5.
Plaintiff alleged causes of action for negligence, strict liability, breach of implied warranty of
merchantability, and breach of warranty for a particular purpose.
On April 11, 2017, Plaintiff filed a Second Amended Complaint which included Graco and
Southern Design as defendants and also added Nibco and Separate Defendant Parker-Hannifan
Corporation (hereinafter “Parker-Hannifan”) as defendants. ECF No. 1-3, p. 47. The Second
Amended Complaint alleged that Nibco and Parker-Hannifan designed, manufactured, distributed,
and/or sold various components that were used on or in conjunction with the pneumatic pump at
issue. ECF No. 1-3, p. 50. Plaintiff alleges that Nibco was incorporated in Indiana. 1 ECF No. 1-3,
p. 48, ¶ 8. Plaintiff further states that Parker-Hannifan was organized under the laws of Ohio. 2 ECF
No. 1-3, p. 49, ¶ 9.

1

Plaintiff does not explicitly state where Nibco maintains its principal place of business, however Nibco states that
its principal place of business is located in Elkhart, Indiana. ECF No. 1, ¶ 11.
2
Plaintiff does not explicitly state where Parker-Hannifan maintains its principal place of business, however Nibco
states that its principal place of business is located in Cleveland, Ohio. ECF No. 1, ¶ 12.

2

On March 14, 2018, Nibco removed this action from the Union County Circuit Court on
the basis of diversity jurisdicition. ECF No. 1. Nibco asserts that the only non-diverse defendant—
Southern Design—was fraudulently joined and that, therefore, this Court has diversity jurisdiction.
ECF No. 1, ¶ 8. On March 30, 2018, Plaintiff filed the instant Motion to Remand. ECF No. 27.
Plaintiff asserts that the Notice of Removal was untimely and that Southern Design was not
fraudulently joined and that, accordingly, this Court lacks jurisdiction. On April 6, 2018, Nibco
filed, without leave of Court, an Amended Notice of Removal re-asserting that removal was timely,
but in the alternative that the time limit for removal on the basis of diversity is inapplicable because
Plaintiff acted in bad faith to prevent timely removal. ECF No. 29, ¶ 29. On April 17, 2018,
Plaintiff filed the instant Motion to Remand as to Nibco, Inc.’s Amended Notice of Removal,
reasserting the arguments made in his initial Motion to Remand and further denying Nibco’s
contention that he acted in bad faith. ECF No. 39. Plaintiff further argues that the Amended Notice
of Removal was not properly brought before the Court and therefore should not be considered.
LEGAL STANDARD
“Defendants may remove civil actions to federal court only if the claims could have been
originally filed in federal court.” Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys.
Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009). “The proponents of federal jurisdiction bear
‘the burden to establish federal subject matter jurisdiction,’ and ‘all doubts about federal
jurisdiction must be resolved in favor of remand.’” Moore v. Kan. City Pub. Sch., 828 F.3d 687,
691 (8th Cir. 2016) (quoting Cent. Iowa Power Coop., 561 F.3d at 912).
Under 28 U.S.C. § 1446(b)(1), a notice of removal must “be filed within 30 days after the
receipt by the defendant . . . of a copy of the initial pleading setting forth the claim upon which
such action or proceeding is based[.]” If an action is not initially removable under § 1446(b)(1),
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“a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of
an amended pleading, motion, order or other paper from which it may first be ascertained that the
case is one which is or has become removable.” 28 U.S.C § 1446(b)(3). However, “a case may not
be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more
than 1 year after commencement of the action, unless the district court finds that the plaintiff has
acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. §
1446(c)(1).
DISCUSSION
The Court will first determine whether Nibco’s removal of this matter was timely and then,
if necessary, address the issue of fraudulent joinder.
I. Timeliness of Removal
Plaintiff contends that this action was commenced on June 25, 2015—the date on which
the initial complaint was filed against John Doe defendants. Accordingly, Plaintiff argues that the
one-year period for removal based on diversity expired on June 25, 2016, and, therefore, Nibco’s
removal on March 14, 2018, was untimely. Alternatively, Plaintiff argues that at the very latest,
this action commenced on February 1, 2016, when he filed his First Amended Complaint, and that
Nibco’s removal is untimely based on that date.
In response, Nibco asserts that this case was timely removed because it was removed within
one year of the date on which Nibco was added as a Defendant on April 11, 2017. Alternatively,
Nibco asserts that Plaintiff acted in bad faith to prevent removal and that, therefore, the one-year
removal bar is inapplicable.

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The Court will first determine whether the instant matter was removed within the requisite
one-year period and then, if necessary, whether Plaintiff acted in bad faith to prevent removal so
as to render the one-year bar inapplicable.
A. One-Year Period for Removal
The language of 28 U.S.C. § 1446(c)(1) makes clear that, absent a finding of bad faith,
cases can only be removed on diversity grounds if removed within one year of the date the case
commenced. The issue of when an action is “commenced” for purposes of 28 U.S.C. § 1446(c)(1)
is governed by state law. See Livaudais v. Johnson & Johnson, 2017 WL 3034701, *2 (E.D. Mo.
July 18, 2017). Under Arkansas law, an action is commenced when a complaint is filed. See Ark.
R. Civ. P. 3(a) (“A civil action is commenced by filing a complaint with the clerk of the court[.]”);
see also Reece v. Bank of N.Y. Mellon, 760 F.3d 771, 774 (“Reece commenced this case on October
15, 2010, by filing a complaint in Arkansas state court.”). However, in order to secure this
commencement date, a plaintiff must comply with the service time-limits of Arkansas Rule of
Civil Procedure 4. Wright v. Sharma, 956 S.W.2d 191, 192 (Ark. 1997); see Maestri v. Signature
Bank of Ark., 2013 Ark. App. 174, 2013 WL 1007395 (“effectiveness of the commencement date
is dependent upon obtaining service of the summons and complaint within 120 days of filing the
complaint.” Citing Ark. R. Civ. P. 4(i)). Furthermore, amended pleadings do not commence a new
civil action. 3 Staggs v. Union Pacific R. Co., 2011 WL 335671, *2 (E.D. Ark. Jan. 28, 2011) (citing
Weekley v. Guidant Corp., 392 F. Supp. 2d 1066, 1067-68 (E.D. Ark. 2005)).

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Nibco relies on the Eighth Circuit’s ruling in Plubell v. Merck & Co., Inc., 434 F.3d 1070 (8th Cir. 2006), for the
proposition that the Court should decide whether the Second Amended Complaint relates back to Plaintiff’s earlier
pleadings to determine when the lawsuit was commenced. The Court finds Nibco’s arguments on this point
unpersuasive. Although Plubell did concern the issue of commencement, it was dealing with whether removal was
proper under the Class Action Fairness Act and did not discuss commencement for the purposes of 28 U.S.C. §
1446(c)(1). Further, Nibco has not cited a case, and the Court is not aware of any, applying Plubell to determine when
an action commenced for purposes of 28 U.S.C. § 1446(c)(1). Therefore, the Court is not convinced that Plubell

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In the case at bar, the record reflects that Plaintiff filed his initial complaint against John
Doe defendants on June 25, 2015, and thereafter filed his First Amended Complaint against
Southern Design and Graco on February 1, 2016. Plaintiff subsequently filed a Second Amended
Complaint against Nibco and Parker-Hannifan on April 11, 2017. Accordingly, the Court must
determine which of these complaints commenced the present action for the purposes of 28 U.S.C.
§ 1446(c)(1).
As noted above, in order to commence a suit on the date the complaint is filed, the plaintiff
must comply with the service time limits of Arkansas Rule of Civil Procedure 4. Plaintiff named
only John Doe defendants in his initial complaint. Although the parties do not discuss this issue,
the Court notes that ARCP 4(i)—the rule governing time limits for service of process—explicitly
states that it “shall not apply . . . to complaints filed against unknown tortfeasors.” Ark. R. Civ. P.
4(i)(3). Accordingly, it is unclear whether Plaintiff’s initial complaint was sufficient to commence
this action so as to trigger the one-year bar of 28 U.S.C. § 1446(c)(1).
As for Plaintiff’s First Amended Complaint, there is no indication or argument that Plaintiff
failed to properly serve Southern Design or Graco, the two Defendants named in that complaint.
Accordingly, it appears that, in the very least, Plaintiff commenced the present case for purposes
of 28 U.S.C. § 1446(c)(1) on February 1, 2016. Further, Plaintiff’s subsequent filing of his Second
Amended Complaint, adding Nibco and Parker-Hannifan, did not re-start the one-year period. See,
e.g., Scafer v. Bayer Cropscience LP, 2010 WL 1038518 (E.D. Ark. March 19, 2010) (finding that
the one-year time bar began to run when the initial complaint was filed, not when an amended
complaint later added a new defendant). Therefore, the Court finds that, at the latest, this action

controls this issue and declines Nibco’s invitation to hold that the reasoning of Plubell extends to the issue of
commencement under 28 U.S.C. § 1446(c)(1).

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was commenced for purposes of 28 U.S.C. § 1446(c)(1) on February 1, 2016. With that in mind,
it is clear that Nibco’s March 14, 2018, Notice of Removal and April 6, 2018, Amended Notice of
Removal were filed more than a year after the commencement of this action.
B. Bad Faith
Having found that Nibco’s notices of removal were filed more than a year after this action
commenced, the Court must now determine whether the bad faith exception to 28 U.S.C. §
1446(c)(1) applies.
Nibco asserts that Plaintiff acted with bad faith to prevent Nibco from timely removing this
matter. Although Nibco recognizes that this Court has noted that “it is far from clear that the ‘bad
faith’ and ‘fraudulent joinder’ standards are one and the same,” 4 it argues that “[P]laintiff’s
fraudulent joinder of Southern Design is certainly some evidence of bad faith on the [P]laintiff’s
part.” ECF No. 37, p. 12. Nibco further argues that bad faith is evidenced by the fact that Plaintiff
filed a complaint solely against John Doe defendants “when he had no legal basis, such as an
impending statute of limitations, to file such a complaint.” ECF No. 37, p. 12; ECF No. 42, p. 14.
Nibco asserts that in filing his initial complaint, Plaintiff violated the applicable John Doe statute 5

4

Bajaba, LLC v. Gen. Steel Domestic Sales, LLC, 4:14-cv-4057, 2014 WL 5363905, * 2 (W.D. Ark. Oct. 21, 2014).
Nibco asserts that the John Doe statute “specifically provides that such a complaint may be filed only for the purposes
of tolling the statute of limitations.” ECF No. 42, p. 14 (emphasis added and internal quotation marks omitted). The
statute at issue provides, in relevant part, that: “[f]or the purposes of tolling the statute of limitations, any person, firm,
or corporation may file a complaint stating his or her cause of action in the appropriate court of this state, whenever
the identity of the tortfeasor is unknown.” Ark. Code Ann. § 16-56-125(a). Although the statute clearly states that a
plaintiff may file a John Doe complaint to toll the applicable statute of limitations, the statute does not state that tolling
is the only acceptable reason for filing a John Doe complaint and Nibco cites no caselaw to support that contention.
Further, Nibco cites no authority outside the statute itself to support its argument that filing a John Doe complaint for
a purpose other than tolling is a “violation” of the statute. Finally, the Court is unsure what Nibco means when it says
there was no “impending limitations deadline.” There appears to be no assertion that the applicable state law statute
of limitations was somehow being tolled or that it otherwise did not apply. Nibco may mean that the statute of
limitations period was not soon to expire, but Ark. Code Ann. § 16-56-125 does not contain any provision that a John
Doe complaint may only be filed at or near the expiration of the applicable statute of limitations and Nibco has not
cited any authority stating otherwise.

5

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because there was no “impending limitations deadline.” ECF No. 42, p. 14. Likewise, Nibco
asserts that Plaintiff’s failure to name any of the present Defendants until seven months after filing
his initial complaint “indicates that, at the time of filing his John Doe complaint, [P]laintiff had
not done enough investigation to identify even one potential defendant, let alone satisfy his other
obligations under Rule 11 of the Arkansas Rules of Civil Procedure.” ECF No. 42, p. 15. Nibco
also claims bad faith is shown in that Plaintiff did not name Nibco as a Defendant for almost two
years “despite the fact that Nibco’s name is clearly printed and visible on the outside of its valve.”
ECF No. 37, p. 13.
In response to Nibco’s bad faith arguments, Plaintiff first notes that in his initial complaint,
he stated that he was filing the complaint “in order to conduct discovery, if necessary, as to
allegations of negligence against various individuals and a corporation.” ECF No. 1-3, p. 2.
Plaintiff notes that the pump at issue was not in his possession and that he served subpoenas on
his employer and his employer’s outside counsel “so that he could learn details of the incident in
which he was injured, including relevant [manufacturers] and suppliers of the products” involved.
ECF No. 44, p. 5. Likewise, Plaintiff asserts that he named Southern Design as a defendant only
after he received a letter with an enclosed purchase order from his employer’s associate general
counsel that indicated that Southern Design provided the pump at issue to his employer. 6 Plaintiff
notes that he has continued to pursue his claims against Southern Design. Plaintiff further states
that he added Nibco as a defendant when he received information from his expert witness
concerning defects in the pump components.

6

These documents indicated that the pump was made by Graco.

8

Upon consideration, the Court finds Nibco’s arguments on this issue speculative and
unpersuasive. Based on the record, it appears that Plaintiff filed his initial John Doe complaint
before he had access to the pump at issue and when he was unaware of the identities of the party
or parties that may be liable for his alleged damages. Likewise, it appears that Plaintiff formed a
reasonable belief, based on information provided to him by his employer, that he may have
colorable claims against Southern Design. Further, the record reflects that Plaintiff has continued
to pursue his claims against Southern Design, filing a response in opposition to Southern Design’s
currently pending Motion for Summary Judgment and conducting significant discovery in relation
to Southern Design. See ECF No. 17, ¶ 3 (Southern Design’s Motion for Summary Judgment,
noting that 19 depositions and “extensive written discovery” had been conducted.). Furthermore,
although Plaintiff did not file his Second Amended Complaint until April 11, 2017, the Court finds
no indication that this was somehow meant to avoid removal by Nibco or otherwise done in bad
faith. The fact that Plaintiff may have known that Nibco was involved with the production of some
component of the pump at issue because Nibco’s name is visible on that component does not mean
that Plaintiff believed he had a colorable claim against Nibco at that time.
Accordingly, the Court finds that there is no indication of bad faith so as to make the oneyear time bar to removal based on diversity inapplicable. Therefore, as Nibco has failed to establish
that Plaintiff acted in bad faith and, in light of the fact all doubts as to removability are to be
resolved in favor of remand, the Court finds that Nibco’s removal of this action was untimely and
that remand is appropriate. Having found that the removal of this action was untimely, and that
remand is appropriate, the Court need not address the issue of fraudulent joinder.

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II. Attorney’s Fees and Costs
Plaintiff asserts that he is entitled to an award of fees and costs incurred as a result of
removal pursuant to 28 U.S.C. § 1447(c). Under 28 U.S.C. § 1447(c), a court “may require
payment of just costs and any actual expenses, including attorney fees, incurred as a result of the
removal.” “A district court has considerable discretion in determining whether to award attorney’s
fees pursuant to 28 U.S.C. § 1447(c).” Convent Corp. v. City of N. Little Rock, Ark., 784 F.3d 479,
482 (8th Cir. 2015) (internal quotation omitted). The standard for awarding fees turns on the
reasonableness of removal and generally courts may award fees and costs “under 28 U.S.C. §
1447(c) only where the removing party lacked an objectively reasonable basis for seeking
removal.” Id. at 483 (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)). Fees
and costs should be denied where an objectively reasonable basis exists. Id.
Upon consideration, the Court finds that an award of fees and costs is not warranted in the
present case. Based on the Court’s review of the parties’ briefing and current case law, it appears
that the Eighth Circuit has not definitively spoken as to when an action commences for purposes
of 28 U.S.C. § 1446(c)(1). See Vasser v. Sowell, 2018 WL 3639834, * 2 (W.D. Mo. July 31, 2018)
(noting that the Eighth Circuit has not addressed the issue of when an action commences so as to
“start the clock for 28 U.S.C. § 1446’s one-year limitation.”). Likewise, it appears that the majority
of the opinions discussing this issue are unpublished. Accordingly, although, as reflected above,
district courts have found that the one-year period for removal begins when a state court action is
filed, the Court cannot say that Nibco lacked an objectively reasonable basis for seeking removal.
Therefore, the Court finds that Plaintiff is not entitled to an award of fees and costs pursuant
to 28 U.S.C. § 1447(c).

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CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff’s Motion to Remand (ECF No. 27)
and Motion to Remand as to Nibco, Inc.’s Amended Notice of Removal (ECF No. 39) should be
and hereby are GRANTED. Therefore, the Court finds that this matter should be and hereby is
immediately remanded to the Circuit Court of Union County, Arkansas, for proper adjudication of
the issues in this case.
IT IS SO ORDERED, this 21st day of August, 2018.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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