Trokey v. Great Plains Roofing and Sheet Metal, Inc.,

Filing 35

ORDER AND OPINION (1) GRANTING PLAINTIFF'S MOTION TO REMAND, AND (2) REMANDING THE MATTER TO STATE COURT, 6 . Signed on 2/23/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
PHILLIP TROKEY,
Plaintiff,
vs.
GREAT PLAINS ROOFING
AND SHEET METAL, INC., et al.
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16-cv-01193-ODS

ORDER AND OPINION (1) GRANTING PLAINTIFF’S MOTION TO REMAND,
AND (2) REMANDING THE MATTER TO STATE COURT
Pending is a Motion to Remand filed by Plaintiff Phillip Trokey. Doc. #6. The
motion is granted, and the matter is remanded to the Circuit Court of Jackson County,
Missouri.
This suit arises from personal injuries suffered by Trokey during his employment
with Installtec, as the result of a lift tipping over. Defendant Great Plains Roofing and
Sheet Metal, Inc. (“Great Plains”) allegedly supplied the lift to Installec, and Defendant
Spencer Plumb allegedly operated the lift during the incident. Trokey filed a Petition in
the Circuit Court of Jackson County, Missouri, on September 4, 2015. Complete
diversity of citizenship was lacking as Trokey and Plumb were citizens of Missouri.
However, on October 6, 2016, Trokey dismissed his claims against Plumb after the two
parties negotiated a settlement. On November 7, 2016, Great Plains removed the case
to this court. Trokey seeks remand to state court.
When removal is predicated on diversity of citizenship, the case cannot be
removed “more than 1 year after commencement of the action, unless the district court
finds that the plaintiff has acted in bad faith in order to prevent a defendant from
removing the action.” 28 U.S.C. § 1446(c)(1). “The statute is a product of Congress’
different treatment for diversity cases (as opposed to federal question cases): it is a
legislative judgment that a suit governed by state law that is filed in state court should
remain in state court if it has been pending and consuming state judicial resources for

more than one year.” Bush v. State Farm Fire & Cas. Co., No. 13-0550-CV-W-ODS,
2013 WL 3755776, at *2 (W.D. Mo. July 16, 2013). “This legislative judgment dictates
that diversity cases remain in state court unless bad faith is evidenced; the one year
limit is not obviated by considerations of fairness, equity, or some other basis for
ascertaining what seems ‘right,’ but only by bad faith.” Id. at *3.
Trokey argues for the Court to interpret the meaning of “bad faith” using the
standard for fraudulent joinder. However, courts address “bad faith” and “fraudulent
joinder” independently of each other. Bajaba, LLC v. Gen. Steel Domestic Sales, LLC,
No. 14-CV-4057, 2014 WL 5363905, at *6 (W.D. Ark. Oct. 21, 2014). Bad faith under
section 1446 governs the time for removal, while fraudulent joinder pertains to the
court’s subject matter jurisdiction. Id. at *5-6. The Eighth Circuit has not yet set forth an
interpretive standard for the “bad faith” exception under section 1446.
This suit was pending for more than one year before it was removed. Great
Plains argues Trokey acted in bad faith by reaching a settlement with the non-diverse
defendant, Plumb, resulting in Plumb’s dismissal more than one year after the suit
commenced. Both Great Plains and Plumb were named as defendants in Trokey’s
initial petition. Trokey asserted a valid claim against Plumb, evidenced by the state
court denying Plumb’s motion to dismiss for failure to state a claim. Doc. #6-1. This
suggests reasons – other than to avoid federal court – for joinder of Plumb. While this
matter was pending in state court, Great Plains raised no issue with Plumb being a
defendant. Tellingly, Great Plains filed a cross-claim against Plumb, alleging his
negligence in the incident caused Trokey’s injuries. Given these circumstances, the
Court discerns no bad faith.
Lastly, Great Plains argues the Court should employ a two-step framework to
analyze the “bad faith” exception under section 1446. See Aguayo v. AMCO Ins. Co.,
59 F. Supp. 3d 1225, 1273-77 (D. N.M. 2014). Under that framework, a court first
examines whether the plaintiff actively litigated against the “removal spoiler” in state
court. Id. at 1262-63 (defining actively litigate to consist of obtaining a settlement with
the defendant). Actively litigating against the “removal spoiler” entitles the plaintiff to a
rebuttable presumption of good faith. Id. If the plaintiff is entitled to the presumption,

2

the second step gives the defendant the opportunity to rebut the presumption with direct
evidence of bad faith. Id.
If the Court were to utilize the framework suggested by Great Plains, its decision
would remain unchanged. Trokey actively litigated against Plumb by defeating Plumb’s
motion to dismiss. Moreover, the two parties negotiated a settlement. Plumb’s failure
to respond to discovery and Trokey’s failure to enforce discovery is questionable.
However, the settlement between the two parties in light of Plumb’s motion to dismiss
being denied is inconsistent with bad faith. Additionally, Great Plains has provided no
evidence – direct or otherwise – of Trokey acting in bad faith. Plumb’s joinder does not
appear to be an effort by Trokey to avoid federal court. The timing of the settlement,
without more, does not reach the level of bad faith proscribed by section 1446(c).
This matter was removed more than one year after it was commenced, and the
Court finds Plaintiff did not act in bad faith to prevent Great Plains from removing this
matter. Thus, removal is untimely. Plaintiff’s motion to remand is granted, and the case
is remanded to the Circuit Court of Jackson County, Missouri.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: February 23, 2017

3