McGee v. Willbros Construction (U.S.), LLC et al
Filing
34
Memorandum Opinion and Order denying 25 MOTION to Remand AND INCORPORATED MEMORANDUM IN SUPPORT MOTION to Remand to State Court. Party Michael Herring terminated and dismissed with prejudice. Signed by Honorable David C. Bramlette, III on 10/25/2011 (PL)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
BRANDON MCGEE
PLAINTIFF
VERSUS
CIVIL ACTION NO: 5:11-CV-00080-DCB-JMR
WILLBROS CONSTRUCTION, US, LLC
D/B/A WILLBROS RPI, INC., WILLBROS
USA, INC., WILLBROS GROUP INC.,
SOUTHEAST SUPPLY HEADER, LLC,
CENTERPOINT ENERGY, INC., SPECTRA
ENERGY INC. D/B/A SPECTRA ENERGY
TRANSMISSION, L.D. AINSWORTH, DENNIS
MILLER, MICHAEL HERRING AND JOHN DOES 2-20
DEFENDANTS
OPINION AND ORDER
This matter comes before the Court on the Plaintiff’s Motion
to Remand and Memorandum in Support [docket entry nos. 25, 26] and
Defendants’ Response and Memorandum in Opposition [docket entry
nos. 30, 31].
Having carefully considered the Plaintiff’s Motion,
the responses thereto, applicable statutory and case law, and being
otherwise fully advised in the premises, the Court finds and orders
as follows:
I. BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff’s Complaint states that he sustained injuries on
or about December 21, 2007 while working as a welder helper for
Willbros RPI, Inc. on a natural gas pipeline in Claiborne County,
Mississippi.
The
Complaint
alleges
that
the
Plaintiff
was
instructed by his supervisor, L.D. Ainsworth, to crawl 250 feet
into the pipeline to grind a joint in need of repair. According to
the Complaint, the pipe in which he entered had accumulated water
due to rainfall the previous day. While he was grinding the
deficient joint, Ken Perry and Josh Perry, another welder and
welder
helper,
simultaneously
heated
the
pipe’s
exterior
to
approximately 300 degrees Fahrenheit so that the joint could be rewelded from the inside.
The Plaintiff states that the sudden
increase in temperature caused steam to rise within the pipe,
removing the oxygen in the pipeline.
As a result, the Plaintiff
lost consciousness and fell against the heated pipe, suffering
serious injuries and burns.
On December 10, 2010, the Plaintiff initiated the present suit
in the Circuit Court of Claiborne County, Mississippi against the
following parties: Willbros Construction, US, LLC D/B/A Willbros
RPI Inc. (“Willbros RPI”), Willbros USA, Inc., and Willbros Group,
Inc., all incorporated in Delaware with their principal place of
business in Texas; Southeast Supply Header (“SESH”), the natural
gas supply line owner incorporated in Delaware with its principal
place of business in Texas; Spectra Energy, Inc. D/B/A Spectra
Energy
Transmission
(“Spectra”)
and
CenterPoint
Energy
(“CenterPoint”), joint venturers in SESH each incorporated in
Delaware with its principal place of business in Texas; and L.D.
Ainsworth and Dennis Miller, both Louisiana residents. At the time
of filing the Complaint, the Plaintiff was a resident of Tennessee.
The Complaint alleges a number of state law torts premised on
theories ranging from intentional misconduct to negligent breach of
2
duty. The Complaint also seeks unspecified compensatory damages as
well as punitive damages.
On April 11, 2011, the Plaintiff amended his Complaint to add
Michael Herring, a Mississippi resident, as a Defendant. The
Amended Complaint states Herring “was a welder on the construction
of
the
gas
pipeline
project”
and
had
certain
“duties
and
responsibilities” in connection with the accident. In all other
respects, the Complaint was significantly unaltered [see docket
entry no. 3].
Following the filing of the Amended Complaint, the Defendants
filed a Notice of Removal with this Court on May 20, 2011, citing
diversity jurisdiction as the basis for removal. See docket entry
no. 1. In their Notice of Removal, the Defendants averred that
Herring, the only named in-state Defendant, posed no obstacle to
the removal action because he had not yet been served by the
Plaintiff. See id. at ¶ 30. Further, the Defendants argued that
even if Herring had been served, removal would still be proper
because he was improperly joined. See id.; 28 U.S.C. § 1441(b).
The Plaintiff filed his Motion to Remand on June 22, 2011,
claiming that this Court lacks subject matter jurisdiction to hear
the case.
The substance of the Plaintiff’s Motion refutes the
Defendants’ statements that Michael Herring is improperly joined
and
concludes
diversity.
The
that
Herring’s
Defendants,
presence
in
turn,
3
in
the
respond
suit
that
defeats
Herring’s
participation in the case notwithstanding, the Defendants are still
diverse since not one of the Defendants is domiciled in Tennessee.
The Defendants further maintain that the Plaintiff failed to raise
the
appropriate
28
U.S.C.
§§
1441(b)
objection
within
the
statutorily allotted time of thirty days and therefore waived his
right to contest removal under that statute.
See 28 U.S.C. §§
1441(b), 1447(c). The Defendants also renew their contention that
Herring had been improperly joined.
II. ANALYSIS
1. Whether the Plaintiff
Defendants’ removal
timely
raised
his
objection
to
the
Federal district courts have the power to adjudicate civil
actions between “citizens of different States” where the amount in
controversy
exceeds
$75,000.
28
U.S.C.
§
1332(a)(1).
“When
jurisdiction is based on diversity, we adhere strictly to the rule
that
citizenship
of
the
affirmatively alleged.’”
841
F.2d
1254,
1259
parties
must
be
‘distinctly
and
Getty Oil Corp. v. Ins. Co. of N. Am.,
(5th
Cir.
1998)(quoting
McGovern
Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975)).
v.
Am.
A removing
defendant must prove by a preponderance of the evidence that
diversity of citizenship lies. Simon v. Wal-Mart Stores, Inc., 193
F.3d 848, 850 (5th Cir. 1999). But if the court finds that it
properly possesses subject matter jurisdiction over state law
claims based on diversity, exercise of that jurisdiction is not
discretionary, and the Court may not remand the action. Cuevas v.
4
BAC Home Loans Servicing, LP, No. 10-20735, 2011 WL 3112324, at *6
(5th Cir. July 27, 2011).
An
action
is
not
removable
on
the
basis
of
diversity
jurisdiction, “if [one] of the parties in interest properly joined
and served as defendants is a citizen of the State in which such an
action is brought.” 28 U.S.C. § 1441(b).
This exception is
commonly referred to as the forum-defendant or in-state-defendant
rule. In re 1994 Exxon Chemical Fire, 558 F.3d 378, 391 (5th Cir.
2009); T.B. v. Wood, No. 1:10-CV-545-HSO-JMR, 2011 WL 1827869, at
*2 (S.D. Miss. May 10, 2011). It is well-settled in this circuit
that the forum-defendant rule concerns not whether the district
court has subject matter jurisdiction over the controversy, rather
it is a procedural limitation that prevents removal of an action
that
would
otherwise
be
removable
on
the
basis
of
diversity
jurisdiction. See, e.g., id. at 396 (5th Cir. 2009); Denman by
Denman v. Snapper Div., 131 F.3d 546, 548 (5th Cir. 1998); In re
Shell Oil Co., 932 F.2d 1518, 1519 (5th Cir. 1991). As such,
“Whether defendants to a lawsuit are diverse, or are residents of
the forum state, are two separate inquiries which are treated
differently for purposes of remand.” Wood, 2011 WL 1827869, at *2.
The distinction is important. 28 U.S.C. § 1447(c) provides: “A
motion to remand the case on the basis of any defect other than
lack of subject matter jurisdiction must be made within 30 days
after the filing of the notice of removal under section 1446(a).”
5
(emphasis added). Thus, since lack of diversity undermines the
court’s subject matter jurisdiction, the parties are free to raise
this issue at any time. See also U.S. v. Cotton, 535 U.S. 625, 630
(2002)
(“[S]ubject-matter
jurisdiction,
because
it
involves
a
court’s power to hear a case, can never be forfeited or waived.”).
Conversely, as the forum-defendant rule is a procedural limitation
imposed by statute, a party that wishes to contest removal on this
basis has thirty days to do so. In re Shell Oil Co., 932 F.2d at
1523. Otherwise, that right is waived. Id. at 1523; see also J.C.
Posey Estate ex rel. Posey v. Centennial Health Care,78 F. Supp. 2d
554, 557 n.9 (N.D. Miss. 1999).
In
order
to
make
a
forum-defendant
rule
objection,
the
plaintiff must be careful to articulate the alleged defect in a
motion to remand. See 28 U.S.C. § 1447(c). Allegations that the
court lacks subject matter jurisdiction will not suffice. For
instance, in Denman by Denman v. Snapper Division, after the
defendants removed the case to federal court, the plaintiff filed
a motion to remand, arguing that remand was appropriate because of
the presence of an non-diverse defendant who defeated diversity
jurisdiction.
131
F.3d
at
548.
Similar
to
the
present
case,
however, the so-called non-diverse defendant was actually a forumdefendant who was in fact diverse from the plaintiff. Id. The court
held that the plaintiff failed to make the proper 1441(b) objection
by contesting removal on the basis of lack of diversity. Id. at 548
6
n.2 (“[The argument that] the [in-state] defendants were not
‘fraudulently joined’ was insufficient to preserve his objection
based on the in-state defendant rule.”).1
In his Motion to Remand, the Plaintiff states that this Court
lacks subject matter jurisdiction to hear the case. The Plaintiff’s
argument rests solely on his belief that Herring, as an in-state
Defendant, defeats complete diversity of the parties.2
face, this assertion plainly has no merit.
On its
The Plaintiff is a
resident of Tennessee, and Herring is a resident of Mississippi.
They are diverse.
Further, for the record, the Plaintiff does not argue that the
amount in controversy falls short of the required statutory amount.
The nature of the compensatory damages alleged, coupled with the
Plaintiff’s request for punitive damages, easily satisfies the
requirements of 28 U.S.C. § 1332(a)(1).
Nor does the Plaintiff
allege that any other Defendant’s presence in the suit upsets this
Court’s jurisdiction. Willbros RPI, Willbros USA, Willbros Group,
1
More recently, in T.B. v. Wood the court again confronted
the question as to whether a motion for remand based on lack of
diversity could operate as a forum-defendant rule objection.
Citing Denman’s precedent, the court determined the plaintiff’s
contention that the defendants were not improperly joined was
“insufficient to preserve an objection based on the in-state
defendant rule.” 2011 WL 1827869, at *2.
2
The Plaintiff’s Brief concludes: “Plaintiff has alleged
valid state court claims against all named defendants, including
Michael Herring who is a resident of the State of Mississippi.
This case does not involve parties of complete diversity and
therefore has been improperly removed.”
7
SESH, Spectra, and CenterPoint are all incorporated in Delaware
with their principal place of business in Texas. Dennis Miller and
L.D. Ainsworth both reside in Louisiana. Therefore, seeing that the
necessary statutory amount has been met and that all Defendants are
diverse
from
the
Plaintiff,
the
Court
finds
that
it
has
jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).
It appears from the substance of the Plaintiff’s Motion,
however, that he is attempting to challenge the Defendants’ removal
to this Court as a violation of 28 U.S.C. § 1441(b). In fact, in
his Brief in Support he cites the right statute, 28 U.S.C. §
1441(b), for the wrong proposition--that Herring as an in-state
defendant
deprives
this
court
of
subject
matter
jurisdiction
because he was properly joined.3 It is unclear from prior precedent
whether a cursory reference to the pertinent statute for support of
an
unrelated
proposition
is
enough
to
fulfill
the
statute’s
requirement. But the Court doubts that the Plaintiff can be said to
have made “a motion to remand the case on the basis [a] defect
other than lack of subject matter jurisdiction.” 28 U.S.C. §
1447(c) (emphasis added). Regardless, it not necessary for the
Court to reach this issue because even if the Plaintiff had raised
3
The exact language in the Plaintiff’s Brief is as follows:
“Section 1441(b) of Title 28 of the United States Code requires
that ‘none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.’ 28 U.S.C. § 1441(B) (emphasis added.) This court does not
have jurisdiction unless it can be shown that each of the residents
have been fraudulently joined.” (emphasis added).
8
the issue in a timely fashion, the Court finds, for the reasons
outlined below, that Michael Herring does not belong in this
lawsuit, making any reference to the in-state forum provision of 28
U.S.C. § 1441(b) moot.
2. Whether Michael Herring is improperly joined
The purpose of the improper joinder rule is to prevent a
plaintiff from joining a non-diverse defendant in order to defeat
diversity jurisdiction. Smallwood v. Ill. Cent. R.R., 385 F.3d 568,
573 (5th Cir. 2004). The defendant is improperly joined when “there
is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.”
Id. Typically, the defendants may challenge whether an in-state
defendant has been improperly joined by attacking the facial
sufficiency of the complaint. Id.
In some cases, however, if the
court finds that the plaintiff has “omitted discrete facts that
would determine the propriety of joinder,” the court may, in its
discretion, pierce the pleadings and consider the evidence under a
summary judgment-like standard. Id.
Federal Rule of Civil Procedure 8(a)(2) requires the complaint
to contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”
The Rule does not require
detailed factual allegations; however, the complaint must include
enough
factual
matter
to
support
a
claim
to
relief
that
is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
9
555 (2007). “A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1947 (2009). But the court is “not bound
to
accept
as
true
a
legal
conclusion
couched
as
a
factual
allegation.” Twombly, 550 U.S. at 555 (2007) (quoting Papasan v.
Allain 478 U.S. 265, 286 (1986)).
When the court, in its discretion, undertakes the summary
judgment-like approach, it must view all evidence in a light most
favorable to the nonmoving party.
Badon v. RJR Nabisco, Inc., 224
F.3d 382, 394 (5th Cir. 2000). However, the court does not, “in the
absence of any proof, assume that the nonmoving party could or
would prove the necessary facts”. Id. at 393-94 (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). If the court
finds,
based
on
the
evidence
before
it,
that
there
is
no
possibility of recovery against the defendant, the court must
consider
the
defendant
improperly
joined
and
disregard
the
defendant’s citizenship for jurisdictional purposes. Badon, 224
F.3d at 389.
Under a 12(b)(6) analysis, the Plaintiff does not plead enough
facts to support a plausible claim against Herring. The Complaint
alleges multiple state law causes of actions collectively against
all named Defendants. According to the Plaintiff’s Complaint,
Michael Herring’s participation in the incident consists of two
10
broad facts: (1) he was a welder on the construction project, and
(2) he had duties and responsibilities in connection with the
project. [see docket entry no. 3].
While the Complaint provides a
fairly detailed narrative as to how his supervisor, L.D. Ainsworth,
and
Ken
and
Josh
Perry,
the
other
welders
on
the
project,
contributed to the accident, the Plaintiff does not specify what
role Herring played in the accident or how Herring would be liable
to the Plaintiff. In fact, Herring’s name is noticeably absent from
the narrative. There are insufficient facts here for the Court to
reasonably infer that Herring would be liable to the Plaintiff
based on the facts pled in the Complaint. Ashcroft v. Iqbal, 129 S.
Ct. at 1949.
Moreover, even if the Plaintiff’s Complaint had established
enough facts to support a plausible claim against Herring, the
Plaintiff’s
claim
against
Herring
cannot
survive
a
summary
judgment-type analysis. Under the circumstances, the Court is
permitted to pierce the pleadings to determine whether Michael
Herring belongs in this suit. Smallwood, 385 F.3d at 573-74. The
Defendants cite a number of reasons why the Plaintiff would be
unable to recover from Herring. First, they claim that Herring is
immune from the Plaintiff’s negligence claims under the Mississippi
Worker’s Compensation Act. See MISS . CODE ANN . § 71-3-9; Frye v.
Airco, Inc., 269 F. Supp. 2d 743, 747 n.2 (S.D. Miss. 2003) (noting
that
the
Mississippi
Worker’s
11
Compensation
Act
protects
an
employee’s coworkers from suit). Secondly, they argue that, even if
the
Plaintiff
escaped
the
reach
of
the
Mississippi
Worker’s
Compensation Act by alleging that Herring committed an intentional
tort against him, those claims are barred by Mississippi’s one year
statute of limitations for intentional torts. See MISS . CODE ANN . §
15-1-35. Finally, the Defendants contend that Herring was not
present at the work site at the time of the accident.
The
Court
finds
the
Defendants’
third
argument
most
compelling. In his Motion for Remand, the Plaintiff requests that
the Court grant him additional time to engage in limited discovery
for the purpose of determining how Michael Herring contributed to
his injuries. In their response to this Motion, the Defendants
produced an affidavit from Michael Herring averring that his work
on the project ceased at least twenty days before the Plaintiff’s
accident. Further, Herring stated that he was not at the job site
when the accident occurred. The Plaintiff, as the movant, had a
final opportunity to rebut the Defendants’ response but failed to
dispute the contents of the affidavit or offer any suggestion as to
how Michael Herring could be liable when he was no longer employed
with the Defendant companies and not present at the work site when
the accident occurred.
Because the Plaintiff does not contest the statements made by
Michael Herring in his affidavit, the Court accepts these averments
as true. The Plaintiff’s claim against Herring is predicated on his
12
belief that Herring “was a welder on the construction of the gas
pipeline
project”
with
certain
“duties
and
responsibilities.”
[docket entry no. 3]. Since the Court accepts that Herring did not
actively participate in the events that led to the Plaintiffs’
accident, the only way Herring could be liable to the Plaintiff is
if he (1) committed some unnamed error or omission that contributed
to the accident or (2) had an affirmative duty to prevent the
accident.
The facts in the Complaint allege the direct cause of the
accident to be Josh and Ken Perry’s decision to heat the outside of
the pipeline while the Plaintiff was inside it. The Plaintiff also
states that the Defendants breached their duty to supervise the
welders and maintain a safe working environment. To find that
Michael Herring, as a former welder who was not present when the
accident occurred, either (1) contributed to the accident or (2)
had a responsibility to keep the work site safe would go well
beyond
a
liberal
interpretation
of
the
pleadings
into
pure
speculation. Such a reading would subject all workers who performed
any
work
on
Plaintiff
the
pipeline
allege
that
to
potential
they
had
liability
certain
should
“duties
the
and
responsibilities” in connection with the accident. The Plaintiff
explained what role L.D. Ainsworth, Josh Perry, and Ken Perry
played
in
Defendants’
the
day’s
potential
events.
basis
of
13
Further,
the
liability,
as
other
the
corporate
Plaintiff’s
employers, is not disputed in this Motion. As Herring was not
present on the day of the accident and played no apparent role in
the incident, the Court finds that the Plaintiff could not possibly
recover from a welder who had been at the job site twenty days
before the accident occurred, and therefore that Michael Herring is
improperly joined in this suit.4 See Badon, 224 F.3d at 389.
III. Conclusion
Because the Court finds that Michael Herring is improperly
joined in the present cause, his citizenship does not factor into
this
Court’s
jurisdictional
determination.
Id.
Therefore,
any
reference to 28 U.S.C. § 1441(b) is inapplicable as none of the
other remaining Defendants is a “citizen of the State in which [the
present action] is brought.” As stated above, all other Defendants
named in this present suit are diverse from the Plaintiff and
therefore the Court clearly possesses subject matter jurisdiction
over the controversy pursuant to 28 U.S.C. § 1332(a)(1).
Accordingly,
IT IS HEREBY ORDERED that the Plaintiff’s Motion to Remand
[docket entry no. 25] is DENIED.
IT IS FURTHER HEREBY ORDERED that the Plaintiff’s claims
against Defendant Michael Herring shall be DISMISSED with
4
The
Plaintiff’s
limitations
Mississippi
Court deems it unnecessary to address whether the
claims against Herring are barred by the statute of
or whether Herring is immune from suit under the
Worker’s Compensation Act.
14
prejudice.
SO ORDERED this the _25th_ day of October 2011.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
15
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