Wagoner v. Hussey Seating Company et al
Filing
22
OPINION AND ORDER by Judge Terence Kern ; terminating party Murray Womble, Inc. (an Oklahoma corporation) ; denying 19 Motion to Remand (vah, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TINA M. WAGONER,
Plaintiff,
COMPSOURCE OKLAHOMA,
Intervenor Plaintiff,
v.
HUSSEY SEATING COMPANY, a foreign
corporation,
MURRAY WOMBLE, INC., an Oklahoma
corporation,
Defendants.
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Case No. 13-CV-352-TCK-PJC
OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Remand (Doc. 19).
I.
Background
On September 13, 2012, Plaintiff Tina Wagoner filed suit in Tulsa County District Court
against Defendants Hussey Seating Company (“Hussey”) and Murray Womble, Inc. (“Murray
Womble”) to recover for damages sustained in a workplace accident that occurred on January 10,
2011. At the time of the accident, Plaintiff was operating retractable or telescoping bleachers in the
Union Public Schools Multipurpose Activity Center (“UMAC”). The bleachers were allegedly
“manufactured by Defendant Hussey and sold by Murray Womble.” (Compl. ¶¶ II, Ex. 1 to Notice
of Removal.) With respect to causation and damages, Plaintiff alleged:
That as a result of the defective and unreasonably dangerous design of the bleachers
the Plaintiff suffered injuries which have prevented her from transacting her
business, forced her to expend large sums of money to effect a cure to her injuries,
which injuries are disfiguring, catastrophic, and debilitating in their nature. That said
injuries have caused her to lose income and did impair her earning capacity. That
at the time of the injuries to this Plaintiff she was 43 years of age with a normal life
expectancy of 39.4 years according to the United States Life Tables.
(Id. ¶¶ III-IV.) Plaintiff sought in excess of $10,000 in actual damages and in excess of $10,000 in
punitive damages against each Defendant.1
On February 19, 2013, CompSource Oklahoma (“CompSource”), an Oklahoma corporation,
filed a Complaint in Intervention, alleging that (1) it was Union Public Schools’ workers’
compensation insurer at the time of Plaintiff’s accident, and (2) as of February 19, 2003, it had paid
medical and indemnity benefits to Plaintiff in excess of $75,000. CompSource further alleged:
That pursuant to 85 O.S. § 348 the Intervenor would show the Court that [Plaintiff]
. . . has elected to take compensation under the Oklahoma Workers’ Compensation
Act and her cause of action is assigned to the Intervenor in the form of a subrogation
interest which Intervenor asserts herein; that by virtue of said statutory authority, the
Intervenor is entitled by way of subrogation rights to reimbursement from the
defendant’s [sic] herein for all sums paid and reserved as a result of its obligation to
its insured . . . . That the covered accident and resulting injury to Plaintiff herein was
the result of the negligence of the defendant’s [sic].
(Compl. in Intervention, Ex. 2 to Not. of Removal.) CompSource sought a judgment in excess of
$75,000 against both Defendants. On May 13, 2013, the state court entered a scheduling order,
1
At the time Plaintiff filed her Petition, this pleading method violated Okla. Stat. tit. 12,
§ 2008(A)(2), which required a plaintiff to plead in excess of $75,000 or, if less than $75,000, to
specify the amount sought. This requirement was part of amendments made by the
Comprehensive Lawsuit Reform Act of 2009 (“CLRA”). Murray Womble moved to dismiss
based on this pleading defect, and Plaintiff argued that this law was unconstitutional. On March
20, 2013, the motion to dismiss was denied without explanation. On June 4, 2013, the Oklahoma
Supreme Court held that the CLRA violated the Oklahoma Constitution’s single-subject
requirement and was void in its entirety. Douglas v. Cox. Retirement Props., Inc., 302 P.2d 789,
794 (Okla. 2013).
2
which set an October 1, 2013 discovery deadline and an October 15, 2013 dispositive motion
deadline.2
On June 13, 2013, within the one-year time limit in 28 U.S.C. § 1446(c)(1), Hussey removed
the action to this Court alleging that this Court had diversity subject matter jurisdiction pursuant to
28 U.S.C. § 1332. Hussey alleged that (1) Murray Womble was fraudulently joined and may be
disregarded for purposes of diversity; and (2) Hussey first ascertained that all diversity requirements
were met on or after May 14, 2013, such that their removal on June 13, 2013 was within the thirtyday time limit set forth in 28 U.S.C. § 1446(b)(3). Hussey attached evidence outside the pleadings
and launched a factual attack on the Court’s jurisdiction. In her motion to remand, Plaintiff argued
that Murray Womble was properly joined and destroys diversity or, alternatively, that Hussey’s
removal was untimely under § 1446(b)(3). Hussey filed a response to the motion, which Murray
Womble joined. Plaintiff failed to file a reply in support of the motion to remand.
II.
Diversity
It is not disputed that, if Murray Womble’s citizenship is disregarded, the remaining parties
are of diverse citizenship. Specifically, (1) Plaintiff is an Oklahoma citizen; (2) Intervenor
CompSource, which the Court views as an Intervening Plaintiff, is an Oklahoma corporation;3 and
2
The parties have not moved for dissolution or modification of that scheduling order,
and such deadlines remain in effect. See 28 U.S.C. § 1450 (“All injunctions, orders, and other
proceedings had in such action prior to its removal shall remain in full force and effect until
dissolved or modified by the district court.”); Winstead v. Ga. Gulf Corp., 77 F. App’x 267, 270
(5th Cir. 2003) (deadline set by state court for motions to amend was never challenged and
remained in full force and effect following removal).
3
Plaintiff does not dispute that CompSource should be deemed an Intervening Plaintiff,
as she did not refute or make any arguments regarding paragraphs 20-23 of the Notice of
Removal. Because the Court views CompSource as an Intervening Plaintiff, there is no need to
address “realignment” issues. See generally Price v. Wolford, 608 F.3d 698, 704-05 (10th Cir.
3
(3) Hussey is a Maine corporation. It is also undisputed, at this juncture in the proceedings, that the
amount in controversy exceeds $75,000. (See Ex. 9 to Resp. to Mot. to Remand, Ex. 9.)4 Therefore,
if Murray Womble was fraudulently joined, the requirements of 28 U.S.C. § 1332 are satisfied.
A.
Fraudulent Joinder Standard
In order to successfully assert fraudulent joinder, the removing party bears the “heavy
burden” of showing either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of
the plaintiff to establish a cause of action against the non-diverse party in state court. Dutcher v.
Matheson, --- F.3d ----, 2013 WL 4212362, at *5 (10th Cir. 2013) (citing Cuevas v. BAC Home
Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011)). Hussey seeks to establish fraudulent
joinder by the second method.
Under the second method, the removing defendant must demonstrate that “there is no
possibility of recovery by the plaintiff against an in-state defendant, which stated differently means
that there is no reasonable basis for the district court to predict that the plaintiff might be able to
2010) (determining whether party that intervened as a defendant should be realigned as a
plaintiff and adopting “substantial conflict” test for realignment of parties). Even if the Court
were to independently examine CompSource’s status, there would be no need for realignment
because CompSource has an “actual and substantial conflict” with Defendants, as evidenced by
its Complaint in Intervention seeking damages against both Defendants. See Price, 608 F.3d at
705 (“Under the substantial-conflict test, a party need not be realigned so long as it has an
‘actual and substantial conflict’ with a party on the other side.”). Further, there is no evidence
that Plaintiff and CompSource have had prior disputes or taken opposing positions in the
workers’ compensation case. Cf. Belcher v. United Parcel Serv., Inc., No. 09-CV-628-TCK,
2009 WL 4912169, at *4 (N.D. Okla. Dec. 10, 2009) (declining to realign employer/workers’
compensation insurer where it and plaintiff had “taken opposing positions in the workers’
compensation case”).
4
Prior to removal, Murray Womble moved to compel a response to its request for
admission regarding the amount in controversy. Following removal, Magistrate Judge Lane
Wilson granted the motion, and Plaintiff filed a supplemental response making this admission.
4
recover against an in-state defendant.” Cuevas, 648 F.3d at 249; Monsanto v. Allstate Indemnity,
No. 99-2225, 2000 WL 525592, at *1 (10th Cir. April 14, 2000) (explaining that removing parties
typically must show that there is no possibility that the plaintiff would be able to establish a cause
of action against the joined party). In determining whether there is any possibility of recovery,
courts may “pierce the pleadings, consider the entire record, and determine the basis of joinder by
any means available.” Smoot v. Chicago, R.I. & P. R. Co., 378 F.2d 879, 882 (10th Cir. 1967)
(internal citations omitted). It is well-settled that “all factual and legal issues must be resolved in
favor of the plaintiff.” Dutcher, --- F.3d ----, 2013 WL 4212362, at *5; Monsanto, 2000 WL
525592, at *1 (explaining that courts typically resolve all disputed questions of fact and all
ambiguities in the controlling law in favor of the non-removing party). Where the removing party’s
argument turns on a factual issue, the Tenth Circuit has indicated that “the issue must be capable of
summary determination and be proven with complete certainty” and that courts may not “pre-try .
. . doubtful issues of fact to determine removability.” Smoot, 378 F.2d at 882.5
Although it is clear that a removing party bears the heavy burden of proof, and that the Court
must resolve any questions in a plaintiff’s favor, it is less clear what type of evidence a plaintiff must
submit in response to an attack on the accuracy of an alleged fact. Plaintiff argues that it need only
5
This Court and other courts within the Tenth Circuit have sometimes referred to the
fraudulent joinder standard as requiring “clear and convincing evidence.” See, e.g., Spence v.
Flynt, 647 F. Supp. 1266, 1271 (D. Wyo.1986) (“The removing party who claims fraudulent
joinder has the burden of pleading such with particularity and supporting it with clear and
convincing evidence; it must prove the non-liability of the defendant as a matter of fact or
law.”); Castens v. Conseco Life Ins. Co., No. 11-CV-628-TCK, 2012 WL 610001, at *2 (N.D.
Okla. Feb. 24, 2012) (“With respect to the consideration of evidence, a removing defendant who
pleads fraudulent joinder must support his claim with clear and convincing evidence.”); Mitchell
v. Ford Motor Co., No. 05–379, 2005 WL 1657069, at *3 (W.D. Okla. July 5, 2005) (same).
The Court finds little difference between the “complete certainty” language in Smoot and the
“clear and convincing” language in other cases.
5
present the results of its pre-suit investigation and demonstrate that it had a good-faith basis for
including the non-diverse party at the outset of the litigation. There is at least some support for
Plaintiff’s position. See Frontier Airlines, Inc. v. United Air Lines, Inc., 758 F. Supp. 1399, 1405
(D. Colo. 1989) (“We are of the view that plaintiff can defeat removal and controvert defendants’
factual submissions merely by presenting the results of its pre-filing investigation of the claims
alleged.”). Hussey argues that Smoot requires a plaintiff to come forward with proof supporting an
alleged fact (and not just proof of pre-filing good faith), where a removing defendant mounts an
evidentiary attack on the accuracy of such fact. See Smoot, 378 F.2d at 880-82.
The Court concludes that Smoot is procedurally and factually similar to this case and requires
Plaintiff to do more than produce evidence of its pre-suit investigation. In Smoot, the removing
defendants argued that a railroad employee accused of negligence was fraudulently joined. Upon
removal, the removing defendant submitted an affidavit showing that the non-diverse employee had
terminated his employment with the defendant railroad fifteen months before the collision and could
not be connected with the alleged negligence. See id. at 880. The plaintiff filed a motion to remand,
arguing that she “had in good faith alleged a cause of action against” the employee. Id. The plaintiff
failed to deny either the allegations of the removal petition or the affidavit. Id. The court did not
analyze the question of good faith but instead upheld denial of the motion to remand because the
defendants established “[t]he non-liability of [the non-diverse defendant] . . . with complete certainty
upon undisputed evidence.” Id. at 882. A good-faith filing effort could not save the plaintiff where
evidence of non-liability was wholly undisputed, and the “continued joinder [of the non-diverse
defendant] serve[d] only to frustrate federal jurisdiction.” Id. Smoot indicates that Plaintiff must
produce some evidence showing there remains a possibility of recovery against Murray Womble,
6
despite Murray Womble’s denial that it sold the bleachers in question. The quantum of evidence
is low, all disputes must be resolved in Plaintiff’s favor, and Hussey retains the heavy burden of
proof. But Plaintiff is incorrect that she need only demonstrate good-faith filing efforts in order to
prevent removal; instead, Smoot indicates that she must create some dispute regarding the
challenged jurisdictional fact. See also Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005)
(“When the Defendants’ affidavits are undisputed by the Plaintiffs, the court cannot then resolve the
facts in the Plaintiffs’ favor based solely on the unsupported allegations in the Plaintiffs’
complaint.”).
B.
Fraudulent Joinder Analysis
Hussey submitted the following evidence in support of its assertion that Plaintiff has no
possibility of recovery against Murray Womble. Jeff Naber (“Naber”), Vice-President of Murray
Womble, submitted an affidavit (“Naber Affidavit”) stating:
Murray Womble has distributed Hussey products. However, Murray Womble has
determined that it did not sell or install the bleachers at issue in this case, at
[UMAC]. Based on documentation provided by Defendant Hussey, the bleachers at
issue were distributed by Defendant Hussey and installed by Specialty Supply &
Installation Co. of Conroe, Texas. Murray Womble has reviewed its books and
records maintained in the ordinary course of business and has found that it did not
manufacture, sell, install, distribute or design the bleachers at issue in this case.
(Naber Aff. ¶¶ 4-6, Ex. 6 to Notice of Removal (emphasis added).) Thus, Naber (1) denies that
Murray Womble sold the bleachers to Union Public Schools, as alleged in the Petition, and (2)
asserts that Hussey was the seller. Consistent with the Naber Affidavit, Hussey argued in its brief
that “Hussey actually sold the bleachers in this case.” (See Resp. to Mot. to Remand 1.)6
6
For unknown reasons, Hussey did not offer an affidavit from one of its own employees
identifying Hussey as the seller. Nor did it offer a purchase order, bill of sale, invoice, or other
business record identifying Hussey as the seller. Nonetheless, the Naber Affidavit is sufficient to
7
Hussey also submitted a letter dated April 19, 2013 from Hussey’s counsel to Plaintiff’s
counsel (“4/19/03 Correspondence”) stating: “[A]ttached please find documents that we recently
located which identify the Installer as Specialty Supply & Installation Company, from Conroe,
Texas.” (4/19/03 Letter, Ex. 3 to Notice of Removal.) The referenced documents reflect: (1) an
offer from Specialty Supply & Installation Company (“SSI”) to Hussey to install 2,698 seats for the
price of $107,924, dated October 6, 2003; (2) an acceptance by Hussey with the exception of $5,400,
also dated October 6, 2003; and (3) an invoice from SSI to Hussey dated October 23, 2003. (Id.)
Hussey submitted its Second Supplemental Response to Plaintiff’s First Discovery Requests
(“Supplemental Responses”), wherein Hussey produced the 4/19/03 Correspondence and admitted
that SSI installed the bleachers.7
In response to this evidence, Plaintiff submitted the unsworn Statement of Cord Adams
(“Adams”), who was hired by Plaintiff’s counsel to conduct a pre-suit investigation. In relevant
part, Adams stated:
I went out and met with [Plaintiff’s] boss, Steve Bardin (the building supervisor),
Dawn Meadows (formerly the school principal and then grounds superintendent),
and Dave Stauffer (former principal and then facilities superintendent), and viewed
the bleachers. . . . The people identified above were there when the 2003 bleachers
were installed and explained that Murray Womble’s agent, Jimmy Dresler, had been
present when those bleachers were installed and had trained them on how to operate
them. The school personnel indicated to me that the bleachers had come from
satisfy Hussey’s burden for purposes of removal.
7
The 4/19/03 Correspondence and Supplemental Responses are of little evidentiary
value because they simply show that Murray Womble did not install the bleachers. The
challenged allegation is that Murray Womble sold the bleachers, and it is unclear how the
4/19/03 Correspondence and Supplemental Responses challenge this allegation. If it is industry
practice for a seller to contract for installation, this could perhaps support a finding that Hussey
was the seller. However, this was not explained to the Court. Thus, the Court finds the Naber
Affidavit to be the crucial evidence submitted by Hussey.
8
Murray Womble and they were apparently unaware that some different dealer or
distributor may have been involved.
(Adams Statement, Ex. 2 to Pl.’s Mot. to Remand.) Plaintiff also attempts to cast doubt on Naber’s
credibility by arguing that (1) Murray Womble has not produced the business records supporting
Naber’s statements; (2) Naber does not deny that Murray Womble was “involved” in the sale, was
present during the installation process, or somehow received compensation from the sale; and (3)
it took Hussey until April 2013 to conclude that it, and not Murray Womble, sold the bleachers. (See
Pl.’s Mot. to Remand 6 & n.1) Plaintiff also argues that “[f]urther discovery is necessary to explain
why the Murray Womble affidavit seems to contradict what the Union Public School officials
understood per the Adams’ affidavit.” (Id. n.1.) Plaintiff has not submitted any affidavits or
deposition testimony of the school officials who allegedly believed they were dealing with Murray
Womble or its agent.
The Court concludes that Defendants have met their burden of proving that there is no
possibility of recovery against Murray Womble. The crucial piece of evidence is the Naber
Affidavit, wherein Naber denies that Murray Womble played any role in any transactions leading
to installation of the allegedly defective bleachers at UMAC. Plaintiff’s only counter-evidence is
the unsworn Adams Statement.8 The only averments therein that could cast doubt upon the Naber
Affidavit are Adams’ statements regarding what the school officials told him. However, such
statements by Adams are inadmissible hearsay under Federal Rule of Evidence 801because they are
being offered to prove the truth of the matters asserted – namely, that the three identified Union
8
Although unsworn, this statement may be considered by the Court pursuant to 28
U.S.C. § 1746. Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 570 n.1 (10th Cir. 1994)
(recognizing that “an unsworn statement made in compliance with [28 U.S.C. § 1746] may be
submitted in lieu of affidavits”).
9
Public Schools officials believed Murray Womble was somehow involved in the transaction.9 This
hearsay evidence is inadmissible and cannot be used to counter the Naber Affidavit. See Connally
v. State Farm Fire & Cas. Co., No. CA-12-64, 2012 WL 2155110, at *10 (S.D. Ala. May 22, 2012)
(explaining that inadmissible hearsay “cannot be considered in resolving a claim of fraudulent
joinder; and that the affiant must be competent to testify on the matters stated and that all matters
must be statements of fact based on personal knowledge”); Bloodsworth v. Smith & Nephew, No.
2:05CV622-D, 2005 WL 3470337, at *9 (M.D. Ala. Dec. 19, 2005) (“The court cannot consider
hearsay in ruling on the fraudulent joinder issue.”). Without the hearsay statements, the Adams
Statement does nothing to counter the Naber Affidavit, and the remaining record consists of an
undisputed denial of involvement in the relevant transaction.
Further, even assuming the Court considers the hearsay, Adams indicates that the school
officials believed Murray Womble was involved but were “apparently unaware that some different
dealer or distributor may have been involved.” (Ex. 2 to Pl.’s Mot. to Remand.) Even Adams seems
to admit that the school officials were misinformed, despite their good-faith belief that Murray
Womble sold the bleachers. As explained above, a good-faith belief in the veracity of a claim is not
sufficient to counter Hussey’s evidence. Thus, Murray Womble’s non-liability has been established
with complete certainty upon undisputed evidence, and its Oklahoma citizenship may be disregarded
for purpose of the Court’s diversity analysis. See Smoot, 378 F.2d at 882 (affirming finding of
fraudulent joinder where non-liability of non-diverse party was “established with complete certainty
upon undisputed evidence”); Legg, 428 F.3d at 1322-23 (reversing grant of motion to remand where
9
Plaintiff failed to file a reply brief and failed to identify any exception to the hearsay
rule raised by Hussey, and the Court has not identified any exception that applies to these
statements.
10
the plaintiffs failed to dispute a sworn statement that non-diverse defendant never promoted or sold
the relevant drug) (“With no response from the Plaintiffs, there was no question of fact for the court
to resolve.”).
The Court will briefly address Plaintiff’s reference to “additional discovery” uncovering
evidence that could be used to counter the Naber Affidavit. At the time of Plaintiff’s Motion to
Remand on July 12, 2013, a scheduling order had been in place for two months setting a discovery
deadline of October 15, 2013. By the time of Plaintiff’s reply deadline, discovery had been open
for at least three months. This is sufficient time for Plaintiff to conduct depositions, obtain
statements from the relevant school officials, or obtain business records. More importantly, Plaintiff
did not request any additional time for discovery or give this Court any indication that, with more
time or more discovery, Plaintiff would be able to counter the Naber Affidavit. Instead, Plaintiff
chose to rely on its pre-suit investigation efforts and failed to even file a reply brief addressing
Hussey’s arguments. Under these circumstances, Plaintiff has had time, opportunity, and incentive
to gather evidence in support of the motion to remand and has failed to do so. See TKI, Inc. v.
Nichols Research Corp., 191 F. Supp. 2d 1307, 1315 (M.D. Ala. 2002) (rejecting similar argument
where the plaintiffs had over a year since the original filing of the Complaint and failed to present
any evidence countering a non-diverse defendant’s assertion that it played no role in the alleged
misconduct).
III.
Timeliness of Notice of Removal
A notice of removal “shall be filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which
such action or proceeding is based . . . .” 28 U.S.C. § 1446(b)(1). “[I]f the case stated by the initial
11
pleading is not removable, a notice of removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3).
Hussey contends that the earliest possible “other paper” triggering the removal clock was
Plaintiff’s Responses to Requests for Production, dated May 14, 2003. Therein, Plaintiff responded
to a request to produce “all documents setting forth the damages, losses, and expenses you contend
you have incurred” as follows: “All expenses, medical and medical-related expenses which Tina
Waggoner has incurred, have been paid by her workers’ compensation carrier and the documentation
thereof is not yet in the possession of this Plaintiff.” (Ex. 9 to Not. of Removal.) According to
Defendants, this response, combined with CompSource’s Complaint in Intervention seeking in
excess of $75,000 for medical bills paid on Plaintiff’s behalf, was the first “paper” it received from
Plaintiff that conclusively established the jurisdictional amount. Plaintiff argues that the triggering
“other paper” was either (1) CompSource’s Complaint in Intervention, filed February 19, 2003,
because Plaintiff’s and CompSource’s claims must be aggregated for purposes of assessing the
propriety of removal; or (2) Plaintiff’s deposition, which occurred on April 18, 2003.
The Court concludes that the Notice of Removal was timely filed. First, the Court rejects
Plaintiff’s argument that the case became immediately removable upon CompSource’s filing of the
Complaint in Intervention. As a general principle, a case not originally removable may become
removable under § 1446(b) only by virtue of a “voluntary act” of the plaintiff. DeBry v.
Transamerica Corp., 601 F.2d 480, 488 (10th Cir. 1979) (“The general effect of the
[voluntary/involuntary] test is that a cause cannot be removed where the removability is a result of
12
some development other than a voluntary act of plaintiff.”); Lauf v. Nelson , 246 F. Supp. 307, 311
(D. Mont. 1965) (“‘And as a general proposition third persons who intervene and voluntarily submit
to the jurisdiction of the state court cannot create a removable action.’”) (quoting 1A Moore, Federal
Practice (2d ed. 1965) 0.167 (11) at 1054). The Court need not decide whether CompSource’s and
Plaintiff’s claims could ordinarily be aggregated for purposes of federal jurisdiction; the crucial
question is whether Plaintiff engaged in a voluntary action that rendered the case removable and
started the thirty-day removal clock. Plaintiff did not do so, and Plaintiff would undoubtedly have
opposed any removal based solely on CompSource’s pleadings.
Second, the Court rejects Plaintiff’s argument that her deposition on April 18, 2003 triggered
the removal clock. In her motion to remand, Plaintiff recounts portions of her deposition that
allegedly should have made clear to Defendants that she sought in excess of $75,000. (See Mot. to
Remand 9-11 (detailing, for example, Plaintiff’s extensive injuries, hourly rate of pay and request
for lost wages, need for caregiver, and need for special equipment).) In the same deposition,
however, Plaintiff stated that she did not know how much money she sought and did not have any
particular number in mind. (Pl.’s Dep., Ex. 8 to Resp. to Mot. to Remand, at 170.) Plaintiff also did
not specify an amount of time for which she sought lost wages and stated she did not know if she
would be released for some type of work, (see id. at 66, 70), rendering any precise lost wages
calculation difficult for Defendants to complete. And even after this deposition, in Plaintiff’s
Responses to Defendant Murray Womble’s First Requests for Admission dated April 23, 2013,
Plaintiff refused to admit that she sought an amount in excess of $75,000. (Ex. 7 to Not. of
Removal.) Therefore, Plaintiff’s deposition on April 18, 2003, did not constitute an “other paper”
that triggered the removal clock.
13
Based on the serious and extensive nature of Plaintiff’s accident, which resulted in paralysis,
confinement to a wheelchair, and significant ongoing medical care, it seems obvious that she seeks
in excess of $75,000. But Plaintiff refused to plead that amount, refused to admit that amount in
discovery, and prior to May 14, 2003, had not provided any “other paper” allowing Defendants to
satisfy their burden of establishing that amount upon removal. Under these circumstances,
Plaintiff’s argument that Hussey was somehow dilatory in its removal effort is wholly unpersuasive.
IV.
Conclusion
Plaintiff’s Motion to Remand (Doc. 19) is DENIED. Defendant Murray Womble, Inc. was
fraudulently joined and is DISMISSED from the case without prejudice.10 The parties are ordered
to file a Joint Status Report setting forth proposed deadlines for the remainder of the case.11
_______________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE
10
The Court must dismiss fraudulently joined parties without prejudice because it lacks
jurisdiction over them. See Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d 1242, 1249
(10th Cir. 2004).
11
As explained supra note 2, the deadlines in the May 13, 2013 scheduling order remain
in effect upon removal. Thus, the Court currently intends to enter a schedule for only those
deadlines that have not passed.
14
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