Laidlaw v. Fluor Corporation et al

Filing 42

OPINION AND ORDER: plaintiffs 16 motion to remand is GRANTED. Signed by Senior Judge James T Moody on 3/3/16. cc: Lake County Superior Court, Crown Point Indiana(mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RUSSELL LAIDLAW,

)
)
Plaintiff,
)
)
v.
)
)
FLUOR CORPORATION, FLUOR
)
CONSTRUCTORS INTERNATIONAL, INC., )
BP PRODUCTS NORTH AMERICA, INC.,
)
MC INDUSTRIAL, INC., and JOSEPH
)
KANTONA,
)
)
Defendants.
)

No. 2:15 CV 227

OPINION and ORDER
This matter is before the court on plaintiff’s motion to remand. (DE # 16.) For the
reasons set forth below, the motion is granted.
Plaintiff originally filed this case in the Lake Superior Circuit Court in Crown
Point, Indiana, on June 12, 2014. (DE # 6.) In his complaint, plaintiff alleged that he was
injured on the job due to defendants’ negligence. (Id. at 2.) Joseph Kantona was named
as a defendant in the original complaint. (Id.)
On June 11, 2015, defendants Fluor Corporation and Fluor Constructors
International, Inc. (“the Fluor defendants”), removed the case to this court, asserting
that this court could properly hear the case because diversity jurisdiction applied under
28 U.S.C. § 1332(a). The Fluor defendants acknowledge that both plaintiff and
defendant Kantona are citizens of the State of Indiana. However, the Fluor defendants
claim that Kantona was fraudulently named as a defendant in the case by plaintiff to

prevent complete diversity of citizenship. (DE # 1.) The Fluor defendants state that,
“[o]n the date of Plaintiff’s incident, Mr. Kantona was a BP employee in charge of
overseeing the safety systems of the Whiting Business Unit at the Whiting Refinery. He
was not involved in the work or project in the area where the Plaintiff was injured, as
that involved the Whiting Refinery Modernization Project at or near Pillar GOHT, Area
A, Fin Fan Deck, not the Whiting Business Unit.” (Id. at 2-3.) The Fluor defendants
argue that in light of this fact, there can be no basis for establishing a duty between
Kantona and plaintiff, and therefore there is no possibility that plaintiff can state a cause
of action against Kantona in state court, rendering plaintiff’s joinder of Kantona in the
lawsuit fraudulent. (Id. at 3-4.) The Fluor defendants also cite as support, without
attaching it, the May 27, 2015, deposition of plaintiff, in which plaintiff purportedly
stated that he did not know who Kantona was, nor did he have any information about
Kantona’s involvement in his accident. (DE # 1 at 2.)
On June 26, 2015, plaintiff moved to remand this case back to state court. Plaintiff
asserts that he did not fraudulently join Kantona in this lawsuit, but that, in any event,
the Fluor defendants filed their notice of removal past the deadline set forth in 28 U.S.C.
§ 1446, the removal statute. That statute requires that a defendant file a notice of
removal within 30 days after receipt 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). According to plaintiff, the Fluor defendants
may have first ascertained that the case was removable when it received Kantona’s

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interrogatory responses on October 31, 2014. In those responses, Kantona stated: “[M]y
title is Health and Safety Superintendent, HSSE Whiting Business Unit. In terms of
work being performed at or near Pillar GOHT, Area A, Fin Fan Deck, on the date of the
incident, I was not involved as this work was part of the WRMP and not the Whiting
Business Unit.” (DE # 17-3 at 2; Kantona Inter. Resp. # 9.) Plaintiff argues that when the
Fluor defendants received the interrogatory responses containing this information
about Kantona, they could have ascertained that Kantona was not a proper defendant
and that the case was removable (though, plaintiff continues to assert that Kantona
remains a proper defendant). Therefore, plaintiff argues, the Fluor defendants had 30
days from the interrogatory receipt date of October 31, 2014, to file a notice of removal,
but they did not file one until June 11, 2015.
The Fluor defendants fail to provide any substantive response to plaintiff’s
argument that their notice of removal was untimely filed. (DE # 23.) They simply
reiterate their original position, which is that based on Kantona’s October 31, 2014,
interrogatory responses (which they attached as an exhibit), it is clear that Kantona
owes no duty to plaintiff. (Id. at 1-2.) The Fluor defendants further reiterate that, during
his May 27, 2015, deposition (the transcript of which was, again, not filed as an exhibit),
plaintiff testified that he did not know what Kantona did or did not do to cause his
injury or whether Kantona was present. (Id. at 2.) The Fluor defendants claim that
because they filed their notice of removal within 30 days of the May 27, 2015,
deposition, they complied with Section 1446‘s 30-day deadline.

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A removal must be timely to be proper. Boyd v. Phoenix Funding Corp., 366 F.3d
524, 529 (7th Cir. 2004). As the party that removed the case to federal court, the Fluor
defendants bear the burden of establishing federal jurisdiction. Id. In this case, the Fluor
defendants have failed to demonstrate that they timely removed this case. On the
contrary, Fluor has repeatedly asserted that Kantona’s interrogatory responses are the
basis for their opinion that plaintiff fraudulently joined Kantona in this matter. Those
interrogatory responses were available to the Fluor defendants on October 31, 2014, yet
they waited until June 11, 2015, to file a notice of removal. The Fluor defendants claim
that plaintiff’s May 27, 2015, deposition is actually the triggering “paper” under Section
1446, and that their notice of removal was therefore timely. However, it does not appear
that plaintiff’s deposition added any pertinent information to the issue regarding
Kantona’s involvement in the case (though it is impossible to tell, as the Fluor
defendants did not make the deposition transcripts part of the record). Accordingly, the
court finds that the Fluor defendants’ notice of removal was untimely and therefore
improper under Section 1446, and that remand is appropriate.
For the foregoing reasons, plaintiff’s motion to remand (DE # 16) is GRANTED.
SO ORDERED.
Date: March 3, 2016
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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