Watkins v. Ashley et al

Filing 38

ORDER granting 12 Motion to Remand; denying as moot and without prejudice 15 Motion to Dismiss for Failure to State a Claim; denying as moot and without prejudice 17 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge James C. Fox on 2/6/2014. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-221-F
DONNA HEWITT WATKINS, as
Administrator of the Estate of Eric Eugene
Black,deceased,
Plaintiff,

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v.
GERALD A. ASHLEY and TRULITE
GLASS & ALUMINUM SOLUTIONS,
LLC, formerly known as Arch Aluminum
& Glass, LLC,
Defendants.

ORDER

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This matter is before the court on the Motion to Remand [DE-12] filed by Plaintiff Donna
Hewitt Watkins, as Administrator of the Estate of Eric Eugene Black, deceased ("Watkins" or
"Plaintiff") and the Motions to Dismiss [DE-15; DE-17] filed by Defendants Gerald A. Ashley
("Ashley") and Trulite Glass & Aluminum Solutions, LLC ("Trulite").

I. FACTUAL AND PROCEDURAL BACKGROUND
On August 5, 2011, Eric Eugene Black died at a glass and aluminum facility owned by
Defendant Trulite and located in Youngsville, North Carolina. Compl. [DE-1-1]

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13, 18. At the

time of his death, Black was working for Act Electric, a company that Trulite had hired to install
electrical conduit on the ceiling of the Youngsville Plant. !d.

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46, 4 7. As part of his work, Black

was required to be elevated on a scissor lift in order to install the electrical conduit. !d.

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77. While

Black was working, a Trulite employee began operating a Gantry crane, which allegedly was
virtually silent and provided no warning to Black that a portion of the bridge of the crane was headed

toward the scissor lift on which Black was standing. Id.

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80, 84-86. The bridge of the Gantry crane

crashed into the scissor lift and knocked Black to his death. Jd.

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96.

Plaintiff Watkins, as Administrator of Black's estate, filed suit in Wake County Superior
Court on February 25, 2013, alleging claims against both Defendants Ashley and Trulite. Plaintiff
alleges that Ashley, as "Plant Manager," was responsible for safety at the Plant. Compl. [DE-1-1]
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109. Both Watkins and Ashley are residents ofNorth Carolina. ld.

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5, 10. Defendants were

served with process on February 25, 2013.
Defendant Trulite filed aN otice of Removal [DE-l] in this court on March 26, 2013, based
on this court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). Defendant Trulite
asserted in the Notice of Removal that this court's assertion of diversity of citizenship jurisdiction
was appropriate because, under the doctrine of fraudulent joinder, there was no colorable claim
against Defendant Ashley. Plaintiff timely filed her Motion to Remand [DE-12] on April22, 2013,
arguing that she has stated a colorable claim against Defendant Ashley. Defendants thereafter filed
Motions to Dismiss [DE-15; DE-17] the various claims against them.

II. DISCUSSION
Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the defendant" to the appropriate
court. 28 U.S.C. § 1441(a). The two principal bases for original jurisdiction are diversity of
citizenship of the parties and the presence of a federal question. 28 U.S.C. §§ 1331, 1332. In this
case, Ashley and Trulite filed a notice of removal in this court on the basis of diversity jurisdiction.
The removing parties, as the ones invoking this court's jurisdiction, bear the burden of
showing that removal is proper. Schwenk v. Cobra Mfg. Co., 322 F.Supp. 2d 676, 678 (E.D. Va.
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2004). Because removal raises federal concerns, a court must strictly construe removal jurisdiction.
Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F. 3d 148, 151 (4th Cir. 1994). "If federal
jurisdiction is doubtful, a remand is necessary." !d.; see also 28 U.S.C. § 1447(c). To invoke a
court's diversity jurisdiction, the parties must be complete diverse, meaning that none of the
plaintiffs share citizenship with any of the defendants, and the amount in controversy must exceed
the jurisdictional threshold of$75,000. 28 U.S.C. § 1332; Mayes v. Rapoport, 198 F.3d 457,461
(4th Cir. 1999). Moreover, an action based on the court's diversity jurisdiction "shall be removable
only if none of the parties in interestproperly joined and served as defendants is a citizen of the State
in which such action is brought." 28 U.S.C. § 1441(b); Palisades Collections, LLC, v. Shorts, 552
F.3d 327, 331 (4th Cir. 2008) ("[I]n a diversity case, a defendant cannot remove a case from its home
forum .... ").
In this case, even though Watkins and Ashley are both residents of North Carolina, and
therefore diversity of citizenship is seemingly not present, Defendants contend that removal is still
appropriate under the doctrine of fraudulent joinder. See Notice of Removal [DE-l] ,-r 8. This
doctrine allows the court to disregard the citizenship of the non-diverse defendant and retain federal
jurisdiction. Mayes, 198 F.3d at 461. Specifically, a defendant alleging fraudulent joinder must
show either "outright fraud in the plaintiff's pleading of jurisdictional facts" or that "there is no
possibility that the plaintiff would be able to establish a cause of action" against the non-diverse
defendant. Hartley v. CSC Transp. Inc., 187 F.3d 422,424 (4th Cir. 1999). The former situation
is not implicated here; rather, the question is whether Defendants have shown that there is no
possibility Watkins will able to establish a cause of action against Ashley.
In answering that question, the court must resolve all legal and factual issues in favor of the
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plaintiff. /d ("The party alleging fraudulent joinder bears a heavy burden-it must show that the
plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiffs
favor."). As the Fourth Circuit has recognized, the standard under the fraudulent joinder doctrine
is even more favorable to a plaintiff than that applied to a motion to dismiss. Id "Once the court
identifies [a] glimmer of hope for the plaintiff, the jurisdictional inquiry ends." Id at 426.
Additionally, the court notes that it may not "delv[ e] too far into the merits of deciding a
jurisdictional question," because
O]urisdictional rules direct judicial traffic. They function to steer litigation to the
proper forum with a minimum of preliminary fuss. The best way to advance this
objective is to accept the parties joined on the face of the complaint unless joinder
is clearly improper. To permit extensive litigation of the merits of a case while
determining jurisdiction thwarts the purpose of jurisdictional rules.

Id
Here, Defendants have not met the heavy burden of showing, after the court resolves all legal
and factual issues in Plaintiffs favor, that there is no possibility Plaintiff can establish a cause of
action against Defendant Ashley. Defendants raise several challenges to Plaintiffs sole claim
against Defendant Ashley-negligence-including that (1) as a matter oflaw, Ashley owed no duty
to Plaintiffs decedent; (2) Plaintiff failed to allege that Ashley breached any duty to Plaintiffs
decedent; and (3) Plaintiff has failed to allege sufficient facts to show causation.
Under North Carolina law, "[t]o state a common law negligence claim, [a] plaintiff must
show (1) a legal duty; (2) a breach thereof; and (3) injury proximately caused by the breach."

Bridges v. Parrish, 366 N.C. 539, _ , 742 S.E.2d 794, 796 (2013) (internal quotation marks
omitted). With regard to the first element, duty is defined as an "obligation, recognized by the law,
requiring the person to conform to a certain standard of conduct, for the protection of others against

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unreasonable risks." Davis v. North Carolina Dep 't ofHuman Resources, 121 N.C. App. 105, 112,
465 S.E.2d 2, 6 (1995) (internal quotation marks omitted). In this case, Defendants contend Plaintiff
cannot, as a matter of law, show that Defendant Ashley owed Plaintiffs decedent a duty which
would support either the premises liability or negligent supervision theories of the negligence claim.
Whatever the merit ofDefendants' arguments with regard to Ashley's duty under the theories
of premises liability and negligent supervision, the court notes that Plaintiff also cites to North
Carolina appellate cases for the proposition that "[t]he law imposes upon every person who enters
upon an active course of conduct the positive duty to exercise ordinary care to protect others from
harm and calls a violation ofthat duty negligence." Pl.'s Omnibus Mem. in Opp. to Mots. to Dismiss
[DE-21] p. 17 (citing Council v. Dickersons, Inc., 233 N.C. 472, 64 S.E.2d 552 (1951)). Some
decisions of the North Carolina Court of Appeals have interpreted this maxim, while also relying on
Restatement (Second) of Torts § 324A, to recognize that "under certain circumstances, one who
undertakes to render services to another which he should recognize as necessary for the protection
of a third person, or his property, is subject to the liability to the third person, for injuries resulting
from his failure to exercise reasonable care in such undertaking." Quail Hollow East Condominium
Ass'n v. Donald J Scholz Co., 47 N.C. App. 518, 522,268 S.E.2d 12, 15 (1980); see also Mozingo
v. Pitt County Mem '1 Hasp., 101 N.C. App. 578,587,400 S.E.2d 747, 752 (1991). Section 324A of

the Second Restatement of Torts states:
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the
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undertaking.
Restatement (Second) ofTorts § 324A (1965).
Pertinent to this case, an illustration in this Restatement§ 324A provides the following:
The A Company employs B as superintendent of building construction work. One of
his duties to A Company is to inspect a scaffold erected by an independent
contractor, to make sure that it is safe for A Company's workmen. B negligently fails
to inspect the scaffold, and as a result of the defective condition, which would have
been discovered by proper inspection, the scaffold collapses and C, a workman
employed by A Company, is injured. B is subject to liability to C.

!d. Here, Plaintiff has alleged that "Defendant Ashley was responsible for safety at the Plant and for
practices and procedures dealing with outside contractors" and "was responsible for management
ofthe Crane Operator." Compl. [DE-1-1]

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109-10. Although the North Carolina Supreme Court

has yet to adopt the analysis in Restatement § 324A, and the facts in the cases where it has been
applied by the North Carolina Court of Appeals are distinguishable, the court nevertheless finds that

Quail Hollow and Mozingo cases provide the "glimmer of hope" Plaintiff needs. Hartley, 187 F .3d
at 426.
Nor can the court say, as a matter of law, that Plaintiff cannot show breach or causation.
Plaintiff has alleged that Ashley breached the duties specified above by, among other things, failing
to ensure that the Gantry Crane was equipped with proper warning devices, and that Gantry Crane
bridge, without warning to Plaintiff's decedent, crashed into the scissor lift he was on and knocked
him to his death. Compl. [DE-1-1]

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84-86, 96, 98(u), 112.

The court recognizes that Defendants have submitted the Declaration of Ashley, stating that
he is not the safety coordinator ro the Youngsville Plant, was not a member of Youngsville Plant's
Safety Committee, and does not have the authority to modify safety procedures. Decl. of Ashley

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[DE-1-2]. Because the court has to take all of the allegations in Plaintiffs Complaint as true,
however, the court cannot treat Ashley's declaration as "as conclusive proof of the outright frivolity
ofplaintiffs claim against him." Vick v. Kapstone Kraft Paper Corp., No. 4:10-CV-78-FL, 2011
WL 841073, at *4 (E.D.N.C. February 9, 2011) (memorandum and recommendation), adopted by
2011 WL 841063 (E.D.N.C. March 7, 2011).
The court expresses no opinion on whether Plaintiff will ultimately be successful in her claim
against Ashley, other than to reiterate that there is a "glimmer ofhope." Whether that glimmer results
in a cognizable claim will be for the state court to decide. In any event, because Defendants cannot
meet the heavy burden of showing there is no possibility that Plaintiff has a claim against
Ashley-which is a different question than whether Plaintiff has stated a claim that withstands Rule
12(b)(6) scrutiny-Plaintiffs Motion to Remand [DE-12] is ALLOWED.
Because the court has determined that it cannot exercise removal jurisdiction over this case,
the Motions to Dismiss [DE-15; DE-17] are DENIED as moot and without prejudice.
III. CONCLUSION
For the foregoing reasons, the Motion to Remand [DE-12] is ALLOWED. Defendants'
Motions to Dismiss [DE-15; DE-17] are DENIED as moot and without prejudice. The Clerk of Court
is DIRECTED to remand this case to the Superior Court of Wake County.

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SO ORDERED. This, the__£___ day of February, 2014.

J esC. Fox
Senior United States District Judge

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