Culver v. Wilson et al
Filing
10
MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 11/19/14; Culver's motion to remand will be denied by separate order.cc:counsel (TLG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CHELSEA CULVER
PLAINTIFF
v.
CIVIL ACTION NO. 3:14CV-660-S
QUINTAURUS R. WILSON, et al.
DEFENDANTS
MEMORANDUM OPINION
This matter is before the court on motion of the plaintiff, Chelsea Culver, to remand this
automobile accident case to the Jefferson County, Kentucky, Circuit Court.
Culver filed this action in the state court on September 10, 2014. The defendants, Werner
Enterprises, Inc. and Quintaurus R. Wilson, propounded interrogatories, requests for admissions,
and a request for production of documents. They then filed a motion to strike the reference in the
complaint to a moniker of defendant Wilson (Compl., ¶ 2), contending that the plaintiff’s reference
to this name was intended tp embarrass Wilson and the reference bore no relation to the action. The
defendant also sought to strike the statement that the complaint
is brought against all employees and agents of Werner involved in this incident and
against the officers, directors, managerial agents, supervisors, and safety personnel
for Werner who set policy or who play an active or passive role in the policy making
and/or in the hiring, training, and supervision of the employees of Werner.
Compl., ¶ 8. The defendants contended that the laundry list of Werner-related individuals, whose
identity and involvement in the events was not alleged, should be stricken from the complaint. The
state court judge heard argument and denied the motion. On October 1, 2014, the defendants
removed the action to this court under our diversity jurisdiction. Culver has moved to remand, not
on the ground that diversity jurisdiction is lacking,1 but rather that the defendants waived their right
of removal.
The foregoing activities in the state court action did not operate to waive the defendants’
right to remove the action within the thirty-day removal period. They timely removed twenty-one
days following the filing of the suit.
The case often quoted by courts in the Eastern and Western Districts of Kentucky in
conjunction with a waiver analysis is Bedell v. H.R.C. Ltd., 522 F.Supp. 732 (E.D.Ky. 1981) which
states:
It may now be considered well settled that:
“...actions which are preliminary and not conclusive in character and which do not
actually submit the merits of a claim for a binding decision do not constitute a waiver
of defendant’s right to remove and this principle has applied to motions to vacate
temporary restraining orders and injunctions such as that involved herein.” [citations
omitted].
This court adopts the view that although waiver of the right of removal is possible,
“the defendant’s intent (to waive) must be clear and unequivocal.” [citation
omitted]. Wavier will not occur by defensive action in the state court, short of
proceeding to an adjudication on the merits. [citation omitted]. Although, waiver
will occur if the defendant files a permissive pleading seeking affirmative relief or
takes affirmative action resulting in an adjudication on the merits of an issue which
could result in the dismissal of the action in whole or in part, [citation omitted], the
mere filing in the state court of a pleading raising a defense which might be
conclusive of the merits is insufficient for waiver. There must be further action on
the part of the defendant resulting in a decision on the merits of the defense.
522 F.Supp. at 738 (emphasis in original). See also Queen v. Dobson Power Line Const. Co., 414
F.Supp.2d 676, 679 (E.D.Ky. 2006)(removal immediately on the heels of an adverse grant of partial
summary judgment was effectively “gaming the system,” and removal right waived); Akwei v. JBS
1
The Notice of removal states that Culver is a citizen of Kentucky, Wilson is a citizen of Tennessee and Werner is a
Nebraska corporation with its principal place of business in Nebraska.
-2-
USA, LLC, No. 3:13-CV-00819-CRS-JDM, 2014 WL 2457389 (June 2, 2014)(answers,
interrogatories, and requests for production did not waive removal right, as there was no
adjudication of the merits; quoting Clark v. Psybar, LLC, 2013 WL 6222982, *2-3 (W.D.Ky. Nov.
27, 2013), which quotes Bedell); Hughes v. UPS Supply Chain Solutions, Inc., 815 F.Supp.2d 993
(W.D.Ky. 2011)(motion for partial judgment on the pleadings fully briefed, argued and denied,
waived removal, citing Bedell).
The court, in its discretion,2 finds that the discovery and motions filed and disposed of in the
state court did not waive the defendants’ right to remove the action to federal court. The motions
were not dispositive of any claim in the case. The motion concerning the moniker sought merely
to remove the purportedly impertinent designation. The motion concerning the breadth of the claim
against Werner addressed the fact that various individuals were identified solely by their capacity
or relationship to Werner, but were unknown and unnamed in the complaint. We do not find this
to be the sort of defensive action which evidences clearly and unequivocally an intent to waive the
right of removal.
Culver’s motion to remand will therefore be denied by separate order.
IT IS SO ORDERED.
November 19, 2014
C al R Smpo I , ei J d e
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2
“‘The defect of untimeliness in removal cases is not jurisdictional, but merely “modal and formal.”’ Manas y Pineiro v.
Chase Manhattan Bank, N.A., 443 F.Supp. 418, 420 (S.D.N.Y. 1978)(citing Ayers v. Watson, 113 S.Ct. 594, 598, 5 S.Ct. 641, 28
L.Ed. 1093 (1885)). Therefore, it is within the discretion of the federal court to determine whether the case has proceeded too far
in the state court.” Queen, 414 F.Supp.2d at 679.
-3-
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