Gainey et al v. Lee County Landfill SC LLC et al

Filing 23

ORDER granting 8 Motion to Remand Motion for Attorney's Fees and Memorandum in Support of Motion, remanding the action to the Lee County Court of Common Pleas and denying both sides' requests for attorneys' fees and costs. Signed by Honorable Joseph F Anderson, Jr on 04/11/2013.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Robert H. Gainey and Martha P. Gainey,

)
)
Plaintiffs,
)
)
vs.
)
)
Lee County Landfill SC, LLC; Republic
)
Services of South Carolina, LLC; Republic )
Services, Inc.; Bartow Keller; Mike Culp; )
and Thomas Lawrence,
)
)
Defendants.
)
)

C/A No.: 3:12-cv-3030-JFA

ORDER

This matter comes before the court on a motion by Plaintiffs Robert H. Gainey and
Martha P. Gainey to remand the instant case to state court, ECF No. 8, and a motion by
Defendants Lee County Landfill SC, LLC, Republic Services of South Carolina, LLC, Republic
Services, Inc., Bartow Keller, and Mike Culp to dismiss all of the Defendants except Lee County
Landfill SC, LLC, ECF No. 4. For the reasons that follow, the court finds that this case should
be remanded to the Lee County Court of Common Pleas.
I.

Factual and Procedural History
Plaintiffs live close to the Lee County Landfill (“the landfill”), which is owned by Lee

County Landfill SC LLC. Plaintiffs brought this class action in South Carolina state court
alleging that they have been harmed by odors that have traveled from the landfill to their
property. In their Complaint, Plaintiffs assert the following causes of action: nuisance, trespass,
negligence/gross negligence and recklessness, and intentional acts.

Plaintiffs are seeking

compensatory damages, punitive damages, and fees and costs, as well as an injunction and a
restraining order. The issues in this case are similar to those in Babb v. Lee County Landfill SC,

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LLC, C/A No.: 3:10-cv-1724-JFA, a case tried before this court in March 2012 in which a
motion for judgment as a matter of law and an issue of injunctive relief remain.
Defendants removed this case on October 19, 2012. On that same date, Defendants filed
their motion to dismiss. On November 5, 2012, Plaintiffs filed a motion to remand. After the
motions were fully briefed, the court heard argument from both sides.
II.

Legal Standard
A state action must be within the original jurisdiction of the district court to be removed

to federal court. See 28 U.S.C. § 1441. Original jurisdiction exists in “all civil actions where the
matter in controversy exceeds the sum of $75,000, exclusive of interests and cost, and is between
. . . citizens of different States.” 28 U.S.C § 1332(a)(1). The party seeking removal bears the
burden of proving federal jurisdiction has been properly invoked.

Sonoco Prods. Co. v.

Physicians Health Plan, Inc., 338 F.3d 366 (4th Cir. 2003) (citing Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)).
The fraudulent joinder doctrine permits removal when a non-diverse party is or has been
a defendant in the case and where “there is no possibility that the plaintiff would be able to
establish a cause of action against the in-state defendant in state court.” Hartley v. CSX Transp.,
Inc., 187 F.3d 422, 424 (4th Cir. 1999) (internal quotation marks and emphasis omitted). The
burden to prove such fraudulent joinder is “heavy” because “the defendant must show that the
plaintiff cannot establish a claim against the nondiverse defendant even after resolving all issues
of fact and law in the plaintiff’s favor.” Marshall v. Manville Sales Corp., 6 F.3d 229, 232–233
(4th Cir. 1993). However, in determining whether an attempted joinder is fraudulent, “the court
is not bound by the allegations of the pleadings, but may ‘consider the entire record, and

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determine the basis of joinder by any means available.’” AIDS Counseling & Testing Centers v.
Group W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990).
III.

Discussion
A.

Diversity Jurisdiction

The issues raised in Plaintiffs’ motion and in Defendants’ motion are intertwined.
Plaintiffs assert that this case should be remanded because it lacks complete diversity.
Defendants argue that the defendants who destroy diversity—namely, the individual, landfill
employee Defendants1—have been fraudulently joined and that they should be dismissed. If
those individual Defendants are dismissed, then the remaining parties will be diverse, and this
court will have jurisdiction under 28 U.S.C. §1332(a). However, if the individual Defendants
have not been fraudulently joined, then remand is appropriate.
In support of their position that remand is necessary in this case, Plaintiffs submit wellsettled South Carolina law that a joint action in tort is maintainable against both a master and its
servant, even though the master’s liability may rely entirely on the principle of respondeat
superior. In those cases, the master and the servant are jointly and severally liable to the
plaintiff. Based on that South Carolina law, at least one court in this district has decided that an
insurance adjuster was not fraudulently joined in bad faith and negligence causes of action
against an insurance company. Pohto v. Allstate Ins. Co., 2011 WL 2670000, at *3 (Jul. 7, 2011)
(“Given the desire expressed by courts in South Carolina and other states to hold employees
individually liable for torts they commit within the scope of their employment, the court believes
Boggs could possibly be held liable if Pohto could show she adjusted his claims in bad faith.”).

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The Complaint actually names Thomas Lawrence as the third Lee County Landfill employee Defendant, but no
person by that name works at the landfill. Plaintiffs corrected the name in their motion and in their briefs, but the
docket still reflects Thomas Lawrence (not Lee Postal) as a Defendant, presumably because Plaintiffs have not filed
an amended complaint.

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This court has recognized that “corporate officers and directors are not liable for the
tortious conduct of the corporation unless they commit, participate in, direct, or authorize the
commission of a tort.” Bessinger v. Food Lion, 305 F. Supp. 2d 574, 579 (D.S.C. 2003). In the
Bessinger case, this court found that non-diverse store managers were fraudulently joined in a
South Carolina Unfair Trade Practices Act (“SCUTPA”) claim against various corporate grocery
stores because the managers did not participate in the act that allegedly violated the SCUTPA
(the decision to remove product from store shelves). Id. at 579–80. Courts have recognized that
some control is necessary to impose liability on an individual defendant. See, e.g., Benjamin v.
Wal-Mart, 413 F. Supp.2d 652, 655–56 (D.S.C. 2006) (“Such liability depends upon control,
rather than ownership of the premises. In considering whether an individual has exercised
control of the premises so as to impose a duty to reasonably inspect the premises, a court will
generally consider the individual’s power or authority to manage, direct, superintend, restrict,
regulate, govern, administer, or oversee the management of the property.”) (quotations and
citations omitted). In the Benjamin case, the court found that a department manager and an
employee were fraudulently joined in a slip-and-fall case against Wal-Mart. The court declined
to “decide what level of control South Carolina law would require to impose such a duty upon an
employee; however, the court [had] no difficulty finding that merely being a manager or an
employee does not evidence a sufficient level of control.” Id. at 656–57.
Plaintiffs submit testimony from the Babb trial and from the depositions of the individual
Defendants as evidence that the individual Defendants exercised a level of control that opens
them up to liability. Bart Keller, for example, testified at the Babb trial that he was “in charge of
all the day-to-day activities” at the landfill from January 2009 to September 30, 2011. Babb
Trial Tr. at 1523, ECF No. 8-3. He, apparently, was charged with making sure the landfill

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“stayed in compliance with all the DHEC regulations” and was responsible for running “the site
efficiently and profitably.” Babb Trial Tr. at 1523–24, ECF No. 8-3. Mike Culp was the
operations manager at the landfill from September 2009 until November 2011. According to his
deposition testimony, he and Keller made the decision as to whether to use odor neutralizers at
the landfill to assist with odors. Culp Depo. at 23, ECF No. 8-2. He further testified that it was
one of his and Keller’s responsibilities to control odors at the landfill. Culp Depo. at 36–38, ECF
No. 8-2. Lee Postal, a general manager with the corporate Defendants, has had responsibility for
the landfill on and off since 1996. In his deposition, Postal testified that any budgets he prepares
for the landfill would include operations needs as well as expenditures for gas collection and
odor control systems. Postal Depo. at 8, ECF No. 8-4. Postal also testified that he made the final
decision on the type of waste received by the Lee County Landfill. Postal Depo. at 13, ECF No.
8-4.
Defendants do not dispute that the individual Defendants had responsibilities related to
controlling odors at the landfill. However, Defendants contend that Plaintiffs have not attributed
any specific, individual conduct to Keller, Culp, and Postal that led to Plaintiffs’ harm but have
merely alleged that the individual Defendants are “responsible for the day-to-day operation,
management and financial performance of the Lee County Landfill.” Defendants argue that such
an allegation is insufficient to support the causes of action against the individual Defendants.
Other courts have dismissed employee defendants when they have been merely “lumped in” with
diverse corporate defendants.
After reviewing the responsibilities of the individual Defendants at the landfill, the court
finds that they are not sham defendants. The court believes that this case is distinguishable from
Bessinger. In Bessinger, the store managers had no part in allegedly tortious decision-making

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process that resulted in the removal of a product from grocery store shelves. 305 F. Supp. 2d at
579–80. In contrast, here, the individual Defendants exercised some control and oversight over
the systems in place to control odors at the landfill. The court emphasizes that it makes no
finding as to the individual Defendants’ liability. Nevertheless, the court is persuaded that the
individual Defendants had the requisite level of control over odors at the landfill such that they
have not been fraudulently joined in this action.
B.

Federal Question Jurisdiction

Defendants briefly argue that this court has federal question jurisdiction over the instant
case because Plaintiffs rely on federal statutes in their allegations.

Defendants assert that

jurisdiction is based on the fact that federal law must be applied to determine if Defendants have
any alleged duties arising under federal statutes, regulations, common law or any federally
enforceable permits referenced in Plaintiffs’ Complaint, and to determine if those duties have
been violated. For example, Plaintiffs allege negligence per se on the part of the Defendants
based on federal law. Additionally, some of Plaintiffs’ claims allege that interstate activities
caused harm to them.
Plaintiffs dispute that there is any such federal question jurisdiction in this case. The
court agrees. The mere mention in the Complaint of the words “federal regulations” does not
give rise to federal question jurisdiction. See Mulcahey v. Columbia Organic Chems. Co., 29
F.3d 148 (4th Cir. 1994). As Plaintiffs’ causes of action are neither created by federal law nor do
they arise under federal law, the court finds that there is no federal question jurisdiction in this
case.

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IV.

Conclusion
Because this court finds that it lacks subject matter jurisdiction over the instant action, it

is constrained to grant Plaintiffs’ Motion to Remand. ECF No. 8. Accordingly, the court directs
the Clerk to remand this case to the Lee County Court of Common Pleas. Because this court
lacks subject matter jurisdiction over this case, it cannot decide Defendants’ Motion to Dismiss.
ECF No. 4. The court further denies both sides’ requests for attorneys’ fees and costs.
IT IS SO ORDERED.

April 11, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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