Sampson et al v. Pangborn Corporation et al

Filing 19

ORDER granting 2 Motion to Remand Signed by Honorable David C. Bramlette, III on 10/14/2015 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
LINDA SAMPSON, ET AL.

PLAINTIFFS

VS.

CIVIL ACTION NO. 5:15-cv-84(DCB)(MTP)

PANGBORN CORPORATION, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This case is before the Court on the plaintiffs’ Motion to
Remand (docket entry 2).

On September 3, 2015, defendants Lone

Star Industries, Mine Safety Appliances Company, and Mississippi
Silica Company (“the removing defendants”) filed a Notice of
Removal of this case from the Circuit Court of Jefferson County,
Mississippi. The removing defendants claim that although this case
was filed in the state court on October 20, 2014, it only became
removable on August 7, 2015, “when Defendants received documents
evidencing Plaintiffs’ unequivocal and unconditional voluntary
abandonment of their claims against all parties except the three
(3) remaining Defendants, all of whom are diverse.”

(Notice of

Removal, ¶ 9).
In

their

motion

to

remand,

the

plaintiffs

assert

that

defendant E.D. Bullard Company (“Bullard”) “is not a nominal
defendant” (Motion to Remand, ¶ 3), that they have not abandoned
their claims against Bullard, and that there are, therefore, four
(4) remaining defendants in the case.

The plaintiffs further

assert that Bullard’s failure to consent to or join in the Notice

of Removal, as required by the “rule of unanimity,” creates a
defect in the Notice of Removal.

(Motion to Remand, ¶¶ 3-4).

Consent of all co-defendants who have been properly served is
required

for

Contractors,

removal.
Inc.,

2012

See
WL

Eagle

Capital

568701,

*2

Corp.

(S.D.

v.

Miss.

Munlake
Feb.

21,

2012)(citing Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992)).
The Fifth Circuit recognizes three exceptions to the rule of
unanimity: “(1) improperly or fraudulently joined defendants; (2)
nominal or formal parties; and (3) defendants who have not been
served by the time of removal.”

Eagle Capital, 2012 WL 568701 at

*2 (internal citations omitted).

The third exception is not

applicable inasmuch as Bullard has been properly served.

Nor do

the removing defendants argue that Bullard was improperly or
fraudulently joined.
The removing defendants contend that “Bullard is a nominal
party against whom ‘there is no possibility that the plaintiff
would be able to establish a cause of action ... in state court.’”
(Defendants’ Memorandum, pp. 1-2)(quoting Farias v. Bexar County
Bd. of Trustees for Mental Health Mental Retardation Servs., 925
F.2d 866, 871 (5th Cir. 1992)).

The removing defendants further

claim:
Plaintiffs have long abandoned any claims against Bullard
in this case.
Before filing their Motion to Remand,
Plaintiffs demonstrated a lack of claims against Bullard
by both failing to procure testimony from their fact
witnesses to establish that Rivers Sampson used a Bullard
product, and by failing to obtain expert opinion
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testimony to establish a defect in any Bullard product.
They further omitted any claims against Bullard in their
pretrial filings on August 7, 2015.
(Defendants’ Memorandum, p. 2).
“A nominal party or formal party has been described as one
‘with no assets or one that does not actively engage in business,’
or as one against whom ‘no reasonable basis [exists] for predicting
that it will be held liable.’”

Mayes v. Moore, 367 F.Supp.2d 919,

921-22 (M.D. N.C. 2005)(quoting Egle Nursing Home, Inc. v. Erie
Ins. Group, 981 F.Supp. 932, 933 (D. Md. 1997); Shaw v. Dow Brands,
Inc., 994 F.2d 364, 369 (7th Cir. 1993)).

The removing defendants

do not show that Bullard is without assets or not actively engaged
in business.

Instead, they assert that the plaintiffs have

demonstrated a lack of claims against Bullard by failing to show
that the plaintiffs’ decedent, Rivers Sampson, used a Bullard
product.
The plaintiffs contend, to the contrary, that they have pled
use of a Bullard product by Rivers Sampson, and that they have
supported their pleadings by discovery in the case.

(Plaintiffs’

Rebuttal, p. 3). Furthermore, the plaintiffs show that at the time
of removal, the deadline for pretrial filings had not run, and the
plaintiffs had therefore not completed their pretrial filings
concerning defendant Bullard.

(Plaintiffs’ Memorandum, pp. 4-5).

“[T]he federal removal statutes are to be construed strictly
against removal and for remand.”

3

Gillis v. Great Atlantic &

Pacific Tea Co., Inc., 153 F.Supp.2d 883, 884-885 (S.D. Miss.
2001).

“In

considering

disputes

concerning

jurisdiction,

a

district court, in a challenged case, may retain jurisdiction only
where its authority to do so is clear.”
Ins.

Co.,

187

F.Supp.2d

635,

638

quotation and citation omitted).

Smith v. Union Nat. Life

(S.D.

Miss.

2001)(internal

“A removing defendant bears the

burden of demonstrating that jurisdiction properly lies with the
district court, and that removal was, indeed, proper.”

Id.

In this case, the removing defendants have failed to meet
their burden of showing that Bullard is merely a nominal party.
Bullard therefore should have consented to or joined in the Notice
of Removal, and its failure to do so, as required by the “rule of
unanimity,” creates a defect in the Notice of Removal.

The Court

shall therefore grant the Motion to Remand.
Accordingly,
IT IS HEREBY ORDERED that the plaintiffs’ Motion to Remand
(docket entry 2) is GRANTED.
A separate Order of Remand, remanding this case to the Circuit
Court of Jefferson County, Mississippi, shall be entered this date.
SO ORDERED, this the 14th day of October, 2015.

/s/ David Bramlette
UNITED STATES DISTRICT COURT

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