Garner Environmental Services, Inc. v. Red River Supply, Inc. et al

Filing 12

ORDER re 7 Notice of Removal. By Magistrate Judge Charles S. Miller, Jr.(KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Garner Environmental Services, Inc.,
Plaintiff,
vs.
Red River Supply, Inc., Kathy Vestal,
Michael Crocker, Richard Lahr, and
Lahr Agency, LLC,
Defendants.

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ORDER RE NOTICE OF REMOVAL
(DOCKET NO. 7)

Case No. 1:14-cv-115

On September 19, 2014, plaintiff Garner Environmental Services, Inc. (“Garner”)
commenced this action by filing a complaint in this court. Garner claims that it is entitled to
payment for environmental cleanup services it provided following a fire that destroyed warehouses
containing hazardous materials owned by defendant Red River Supply, Inc. (“Red River”).
On October 3, 2014, defendant Lahr Agency, LLC (“Lahr Agency”) filed a “Notice of
Removal” in this action. See Docket No. 7. The complaint attached to the notice of removal was
brought by Red River against the Lahr Agency in state court in Williams County, North Dakota.
See Docket No. 7-1.

In that case, Red River alleged claims of negligence and negligent

misrepresentation stemming from the Lahr Agency’s failure to obtain adequate insurance coverage
for on-site pollution for Red River. In the notice of removal, the Lahr agency asserts that this court
has supplemental jurisdiction over the state court action pursuant to 28 U.S.C. § 1367.
On October 9, 2014, counsel for the Lahr Agency contacted this court’s Clerk’s Office and
requested that the Clerk restrict access to the “Notice of Removal” (Docket No. 7) because it had
been filed in error. Counsel for the Lahr Agency also sent an email to undersigned’s chambers to
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clarify what had happened. Based on that email, it appears that counsel for the Lahr Agency
believes that the Notice of Removal was improperly filed because the state court action had been
served but had not been filed.
The court is not convinced that the state court case involving Red River and the Lahr Agency
could properly be removed as part of this action, which was originally filed in this court by plaintiff
Garner. The court is also not convinced that it could exercise jurisdiction over a case between two
apparently non-diverse parties pursuant to § 1367’s grant of supplemental jurisdiction. Further, the
court is not certain that the Lahr Agency’s interpretation of the provisions governing the time for
filing a notice of removal is correct. However, none of these issues is before the court at this time.
The Clerk’s Office has restricted access to the “Notice of Removal” (Docket No. 7) at the Lahr
Agency’s request. The court notes for the record that the Notice of Removal was improvidently
filed and was not effective to remove any state court action to this court.
Dated this 16th day of October, 2014.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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