Brown v. United Rentals (North America), Inc. et al

Filing 41

MEMORANDUM AND ORDER. Plaintiff's Motion to Remand (Dkt. 16 ) is DENIED. Defendant Christopher Hann is hereby dismissed from the action. Signed by District Judge Eric F. Melgren on 10/4/2021. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES BROWN,
Plaintiff,
vs.

No. 21-2244-EFM

UNITED RENTALS (NORTH AMERICA), INC.,
et al.,
Defendants.

MEMORANDUM AND ORDER

On April 16, 2021, James Brown brought this action in Wyandotte County,
Kansas alleging that he had been injured while using an industrial lift manufactured by
JLG Industries and rented by United Rentals North America (URNA) and Christopher
Hann. Brown alleged in his state Petition that the lift was defective and dangerous, and
that URNA and Hann negligently rented the lift. JLG, a Pennsylvania corporation,
removed the action to this court on May 28, 2019. Its Notice of Removal also argued that
that the state Petition had fraudulently joined Hann (a Kansas resident) in order to
prevent removal.1
Brown has moved to remand the case, arguing that URNA and Hann could not
effectively consent to the removal, because that they had previously moved in state
court to dismiss the action for improper venue, or alternatively to transfer the action to

1

Dkt.1, at 3-4.

Johnson County District Court. As Brown notes, the Tenth Circuit has observed that a
waiver of the right to remove arises when the defendant takes “some substantial
offensive or defensive action in the state court action indicating a willingness to litigate
in that tribunal before filing a notice of removal with the federal court.”2
But the same authority expressly warns such waiver “must be clear and
unequivocal, meaning that short of the defendant seeking an adjudication on the merits,
the right to removal is not lost.”3 The court also identified the sort of state court motions
which would not amount to waiver:
Unlike motions to dismiss for failure to state a claim, motions to dismiss
for defenses such as lack of jurisdiction, improper venue, or insufficient
process make it unnecessary for a court to adjudicate the case's merits.
Because of this, such motions don't implicate waiver's goal of promoting
judicial economy and preventing piecemeal and duplicative litigation.4
The motion to dismiss or transfer filed by URNA and Hann was grounded on
their claims of improper venue; they made no arguments seeking a dismissal on the
merits. Accordingly, their motion was not a waiver of their right to consent to removal
of the action.5

2

City of Albuquerque v. Soto Enterprises, Inc., 864 F.3d 1089, 1098 (10th Cir. 2017)

3

Id. (internal quotation and citations omitted).

4

Id. at 1099 n. 13 (emphasis added, citation omitted).

5 City of Albuquerque v. Soto also recognizes that even a motion to dismiss on the merits will not
be deemed a waiver where state court procedural rules compel the filing of such a pleading
prior to removal. Id. at 1099-1100 (citing Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP,
365 F.3d 1244, 1246 (11th Cir. 2004). Defendants contend that even if their state motion had
sought a ruling on the merits, it would not constitute a waiver as the pleading was required by

2

However, the merits of the claim against Hann are now before this court, given
the defendants’ argument in the removal notice that Hann was fraudulently added to
the state Petition in an effort to destroy complete diversity. “[U]pon allegations of
fraudulent joinder designed to prevent removal, federal courts may look beyond the
pleadings to determine if the joinder, although fair on its face, is a sham or fraudulent
device to prevent removal.”6
Under Kansas law, an agent may be held personally liable, along with their
employer, for the tortious acts in which they willfully participate.7 Accordingly,
dismissal may be appropriate if a fraudulently joined agent did not actually participate
in the alleged tortious activity.8
Defendants argued in the removal notice that Hann was not actually involved in
the rental of the lift. Brown, in his Motion to Remand, simply repeats the generic
allegations from the Petition stating that URNA and Hann had duties of care with
respect to renting the lift.9 He also cites decisions such as Walsworth v. Medtronic, Inc.10

Kansas pleading rules. The court need not decide the issue as it is plain that the motion itself
sought no decision on the merits.
6

Smoot v. Chicago, R.I. & P. R. Co., 378 F.2d 879, 881–82 (10th Cir. 1967)

Kirk v. H.G.P. Corp., 208 Kan. 777, 779, 494 P.2d 1087 (Kan.1972); McFeeters v. Renollet, 210 Kan.
158, 161–62, 500 P.2d 47 (1972).

7

See, e.g., Hensley v. Orscheln Farm & Home, No. 11-4159-CM, 20212 WL 628201, *3 (D. Kan. Feb.
27, 2012).

8

9

Dkt. 16, at 5-6, Dkt. 1-1, ¶¶ 4, 18-20.

10

No. 20-2395-SAC, 2020 WL 5993625, at *3 (D. Kan. Oct. 9, 2020).

3

which have held that in appropriate cases an individual employee may also responsible
for tortious acts committed in conjunction with their employer.
The decisions cited by Brown are distinguishable. In Walsworth, the court
declined to find fraudulent the joinder of Price, a medical device sales representative,
noting the complaint’s allegations that all the defendants were receiving reports that
their insulin pumps were defective, and that the complaint alleged Price aided in the
sales by personally showing patients how to use the pumps. “More importantly,” the
court noted, “Medtronic has not come forward with evidence or argument on which
this court can discredit the allegation of [Price’s] knowledge” that the products were
defective.11
In sharp contrast, Plaintiff has offered no specific allegations against Hann, and
Defendants in their Response to the remand motion have presented the affidavit of
Hann, who avers categorically that he was not involved in renting, leasing, supplying,
servicing maintaining, inspecting, or monitoring the JLG 860SJ industrial lift involved in
the accident.12 He avers he never owned, controlled, or possessed the lift,13 and that he

2020 WL 5993625, at *5 (noting Price’s “carefully worded averments” which only denied a
part of the plaintiff’s allegations).

11

12

Dkt. 25-1, ¶¶ 4-7.

13

Id. at ¶¶ 8-10.

4

did not market the lift to anyone, or trained anyone on the lift.14 He does not know and
has never met Brown.15
Plaintiff’s Reply16 focuses solely on the issue of waiver, and abandons the issue
whether Hann was properly joined.
IT IS ACCORDINGLY ORDERED this 4th day of October, 2021, that the
Plaintiff’s Motion to Remand (Dkt. 16) is DENIED; Defendant Christopher Hann is
hereby dismissed from the action.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

14

Id. at ¶¶ 11-12.

15

Id. at ¶ 13.

16

Dkt. 28.

5