Clutter v. Consolidation Coal Company et al
Filing
25
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND, GRANTING PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES AND COSTS, DENYING WITHOUT PREJUDICE DEFENDANT WAYNE CONAWAY'S MOTION TO DISMISS, DENYING WITHOUT PREJUDICE DEFEN DANT STEVE D. FOX'S MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION TO STAY AS MOOT. The Court denies defendant's 8 Motion to Dismiss and defendant's 9 Motion to Dismiss, without prejudice to be raised in State Court, g rants the plaintiff's 12 Motion to Remand to State Court and denies as moot plaintiff's 16 Motion to Stay. An evidentiary Hearing regarding an award of attorney's fees and costs is set for 5/5/2014 02:15 PM in Wheeling District Judge Courtroom, South before Senior Judge Frederick P. Stamp Jr. Signed by Senior Judge Frederick P. Stamp, Jr on 4/15/14. (certified copy via US Mail to the Circuit Court of Marion County)(mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEBRA L. CLUTTER, individually
and in her capacity as the
Administratrix of the
Estate of GLEN L. CLUTTER,
Plaintiff,
v.
Civil Action No. 1:14CV9
(STAMP)
CONSOLIDATION COAL COMPANY,
a Delaware corporation,
WAYNE CONAWAY and STEVE D. FOX,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND,
GRANTING PLAINTIFF’S REQUEST
FOR ATTORNEY’S FEES AND COSTS,
DENYING WITHOUT PREJUDICE
DEFENDANT WAYNE CONAWAY’S MOTION TO DISMISS,
DENYING WITHOUT PREJUDICE
DEFENDANT STEVE D. FOX’S MOTION TO DISMISS AND
DENYING PLAINTIFF’S MOTION TO STAY AS MOOT
I.
Procedural History
The plaintiff, Debra L. Clutter (“Clutter”), filed this civil
action in the Circuit Court of Marion County, West Virginia against
the above-named defendants asserting claims which stem from the
death of the plaintiff’s husband. The plaintiff alleges that death
occurred after a slate bar struck the deceased in the head while he
was attempting to re-rail a supply car at an underground mine. The
plaintiff alleges the following claims: (1) deliberate exposure
pursuant
to
West
Virginia
Code
§
23-4-2(d)(2)(ii)
against
Consolidation Coal Company (“CCC”) individually; (2) deliberate
exposure pursuant to West Virginia Code § 23-4-2(d)(2)(i) against
all defendants; and (3) loss of consortium against all defendants.
Because the plaintiff asserted Claim 2 under the West Virginia
Code, which provides an exception to the general immunity granted
by the West Virginia Worker’s Compensation system, the plaintiff
was able to bring the claim against CCC (the employer); Wayne
Conaway (“Conaway”), a safety director for the mine; and Steve D.
Fox (“Fox”), the foreman who performed a pre-shift inspection of
the area where the decedent’s death occurred.
Thereafter, CCC filed a notice of removal to this Court
alleging that Conaway and Fox had been fraudulently joined to this
action.
Subsequently, Conaway and Fox filed individual motions to
dismiss and CCC filed an answer to the complaint.
The plaintiff
then filed a motion to remand contending that she had rightfully
joined Conaway and Fox and that she should be awarded attorney’s
fees and costs.
Shortly thereafter, the plaintiff filed a motion
to stay this Court’s consideration of the individual defendant’s
motions to dismiss until this Court had decided the plaintiff’s
motion to remand.
All motions are now fully briefed.
II.
Facts
In its notice of removal, CCC alleged that the plaintiff
fraudulently joined non-diverse plaintiffs, Fox and Conaway, in
order to maintain this action in state court.
2
The individual
defendants then filed separate motions to dismiss. Thereafter, the
plaintiff filed a motion to remand.
In her motion to remand, the plaintiff first asserts that
because CCC has not alleged outright fraud by the plaintiff, it
must show by clear and convincing evidence that there is no
possibility that the plaintiff will be able to establish a cause of
action against the non-diverse defendants in state court. Further,
the plaintiff contends that she has to allege in her complaint that
the supervisor acted in a manner consistent with the language of
West Virginia Code § 23-4-2(d)(2)(i) (“subpart (i)”).
The plaintiff next asserts that she has pleaded in her
complaint that the defendants “consciously, subjectively, and
deliberately formed the intention” to cause the injuries and death
of the deceased. The plaintiff contends that this is so because of
the plaintiff’s allegation that the defendants were aware of the
dangers of the deceased’s work area but still required the deceased
to work in that area.
Further, the plaintiff contends that CCC’s
use of Hedrick v. E.I. du Pont de Nemours and Co., 2013 WL 2422661,
Civil Action No. 2:12-06135 (S.D. W. Va. June 3, 2013), in its
notice of removal is misplaced because in that case, the plaintiff
did not use the specific language of subpart (i) in his complaint
and thus did not plead enough to maintain a subpart (i) claim.
Additionally, the plaintiff argues that the West Virginia Supreme
Court’s decision in Young v. Apogee Coal Co., LLC, 753 S.E.2d 52
3
(W. Va. 2013), is distinguishable because that case dealt with a
claim under West Virginia Code § 23-4-2(d)(2)(ii) (“subpart (ii)”)
and not subpart (i).
The plaintiff contends that CCC only cites
Young to attempt to misguide this Court into deciding a motion to
remand akin to a motion for summary judgment.
Finally, the plaintiff contends that she is owed costs and
fees for CCC’s “fraudulent” removal.
The plaintiff cites eleven
cases that she asserts show a pattern of remand for cases involving
claims
under
defendant.
subpart
(i);
four
of
which
involved
CCC
as
a
The plaintiff argues that because there was well-
settled authority in favor of remand in subpart (i) cases when CCC
removed, the notice of removal was baseless.
Thus, the plaintiff
claims that she has missed the opportunity of a 2014 trial date in
state court and has provided an affidavit of the expenditures
accrued because of CCC’s baseless removal.
In its response, CCC argues that the plaintiff cannot merely
recite the elements of subpart (i) in its complaint under Twombly
and Iqbal.1
CCC asserts that the plaintiff has pled insufficiently
because she has, at most, pled (1) harm not specifically intended;
1
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
These two cases stand for the
proposition that in order to sustain a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), the complaint must
contain “more than labels and conclusions . . . .” Twombly, 550
U.S. at 555. The Court will refer to these two cases in tandem
throughout this order. However, the Court will not give a full
citation each time.
4
(2) that the defendants engaged in gross negligence; and (3) that
the conduct was willful, wanton, or reckless.
CCC contends that
because of the heightened standard that must be applied to subpart
(i) claims, that a plaintiff must show that there was a specific
intent to kill or injure, this should be reviewed under Federal
Rule of Civil Procedure 8 rather than the more lenient fraudulent
joinder standard.
Thus, CCC argues the higher standard set forth
in Twombly and Iqbal should be applied.
As such, CCC argues that
the plaintiff fails because she has not alleged that (1) Conaway
and Fox assigned Clutter to transport equipment on the dangerous
track; (2) Conaway and Fox were present when the accident occurred;
(3) Conaway and Fox directed Clutter to re-rail the equipment or
use a specific method; or (4) Conaway and Fox wielded the bar or
intended injury.
CCC then goes through the plaintiff’s list of eleven cases she
claims
shows
a
pattern
of
remand
distinguishable from this case.
and
argues
that
they
are
As such, CCC asserts that its
notice of removal was objectively reasonable and that it had an
appropriate basis for removal.
CCC contends that removal was not
contrary to law, as it showed by distinguishing the cases cited by
the plaintiff, and that the plaintiff has not listed any other case
in which she was involved with CCC and CCC incorrectly removed.
Further, CCC argues that if the plaintiff meant that plaintiff’s
counsel has had his time wasted by CCC’s removal, CCC has only been
5
able to find one case that involved plaintiff’s counsel and that
was Hoffman v. Consolidated Coal Co., 2010 WL 4968266, Civil Action
No. 1:10CV83 (N.D. W. Va. Dec. 1, 2010), in which remand was based
on a subpart (ii) claim and not a subpart (i) claim.
The plaintiff asserts the same arguments as in her motion to
remand in her reply to CCC’s contentions.
However, the plaintiff
adds that this Court should not apply Twombly and Iqbal but rather
should apply the more lenient fraudulent joinder standard and West
Virginia’s notice pleading standard.
Based on the following analysis, this Court finds that the
plaintiff’s motion to remand should be granted and that attorney’s
fees and costs should be assessed.
As such, this Court also finds
that the individual defendants’ motions to dismiss should be denied
without prejudice so that the defendants may file them in state
court
if
appropriate.
Finally,
this
Court
finds
that
the
plaintiff’s motion to stay is denied as moot given this Court’s
finding as to the motion to remand and the individual motions to
dismiss.
III.
Applicable Law
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.
28 U.S.C. § 1441.
A
federal district court has original jurisdiction over cases between
citizens of different states where the amount in controversy
6
exceeds $75,000.00, exclusive of interests and costs.
§
1332(a).
establishing
The
party
federal
seeking
removal
jurisdiction.
See
bears
the
Mulcahey
28 U.S.C.
burden
v.
of
Columbia
Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
Removal
jurisdiction
is
strictly
construed,
and
if
jurisdiction is doubtful, the federal court must remand.
federal
Id.
The doctrine of fraudulent joinder creates an exception to the
requirement of complete diversity. See Mayes v. Rapoport, 198 F.3d
457,
461
(4th
Cir.
1999).
Under
this
doctrine,
removal
is
permitted even if a non-diverse party has been named as a defendant
at the time the case is removed if the non-diverse defendant has
been fraudulently joined.
Id.
“This doctrine effectively permits
a district court to disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume jurisdiction
over a case, dismiss the nondiverse defendants, and thereby retain
jurisdiction.” Id. When fraudulent joinder is alleged, a court is
permitted to examine the entire record by any means available in
order to determine the propriety of such joinder.
See Rinehart v.
Consolidation Coal Co., 660 F. Supp. 1140, 1141 (N.D. W. Va. 1987).
IV.
A.
Discussion
Fraudulent Joinder
1.
Application of Fraudulent Joinder Standard
To establish fraudulent joinder, “the removing party must
demonstrate either ‘outright fraud in the plaintiff’s pleading of
7
jurisdictional facts’ or that ‘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) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
A claim of
fraudulent
defendants.
joinder
places
Marshall, 6 F.3d at 232.
a
heavy
burden
on
the
“[T]he 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. A claim need not ultimately succeed to defeat removal; only
a possibility of right to relief need be asserted.”
(internal citations omitted).
Id. at 232-33
“Once the court identifies this
glimmer of hope for the plaintiff, the jurisdictional inquiry
ends.”
Hartley, 187 F.3d at 426.
Further, the burden is on the
defendants to establish fraudulent joinder by clear and convincing
evidence.
See Rinehart, 660 F. Supp. at 1141.
CCC first asserts that this Court should apply the more
stringent standard set forth in Twombly and Iqbal rather than the
standard for fraudulent joinder.
CCC contends that because there
is a higher standard of proof for a claim under the deliberate
exposure statute which encompasses subpart (i) claims, this Court
should
likewise
apply
a
higher
plaintiff’s motion to remand.
8
standard
for
considering
the
This Court finds, however, that the correct standard to apply
is that of fraudulent joinder.
The defendants are unable to cite
any case law that supports the assertion that the more stringent
standard for a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) should be applied.
CCC cites Hedrick, 2013 WL
at *7-8, a United States District Court for the Southern District
of West Virginia case, for its assertion.
However, this is
misplaced because the court in Hedrick clearly used the more
lenient fraudulent joinder standard. Id. at *2. The Hedrick court
found that the plaintiff failed to meet the lenient standard by not
asserting that the defendant had acted with a “‘consciously,
subjectively and deliberately formed intention to produce the
specific result of injury or death . . .’” or providing additional
facts in his complaint to support the inference that the defendant
had the required intent under subpart (i).
Id. at *3.
Hedrick
second
court
was
clearly
applying
the
Thus, the
prong
of
the
fraudulent joinder standard under which the removing party must
show that there is no possibility the plaintiff could maintain a
cause of action.
Further, this Court notes that the other cases cited by the
parties for fraudulent joinder, based on subpart (i) or (ii), use
the more lenient fraudulent joinder standard.2
2
As such, the
E.g., Duffield, et al. v. Penn Line Corp., et al., 2013 WL
2607480, Civil Action No. 2:13CV04733, *1-2 (S.D. W. Va. June 11,
2013); Blythe v. Consolidation Coal Co., 2013 WL 486871, Civil
9
appropriate standard to be applied is that as set forth above for
fraudulent joinder.
2.
Remand
CCC has not alleged outright fraud by the plaintiff; thus, CCC
has the burden to establish by clear and convincing evidence that
“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, 187 F.3d at 424.
The plaintiff argues that a
pattern of remand has been established in cases involving claims
under subpart (i) where the plaintiff alleges in the complaint that
the individual defendant acted in a manner consistent with the
language of subpart (i).
Further, the plaintiff contends that she
has done so in this action.
On the other hand, CCC asserts that
the case law cited by the plaintiff does not suggest that remand is
proper and that the plaintiff has not pleaded sufficient facts to
establish a cause of action under subpart (i).
Because the plaintiff’s grounds for relief are based upon West
Virginia law, the Court looks to the law of that state to determine
whether Conaway and Fox were fraudulently joined.
The plaintiff
asserts a cause of action against all three defendants for a
deliberate intention workplace injury pursuant to subpart (i).
Action No. 5:12CV95, *3 (N.D. W. Va. Feb. 7, 2013); Adkins v.
Consolidated Coal Co., 856 F. Supp. 2d 817, 820 (S.D. W. Va. 2012);
Bledsoe v. Brooks Run Mining Co., LLC, 2011 WL 5360042, Civil
Action No. 5:11CV00464, *1 (S.D. W. Va. Nov. 4, 2011).
10
This statutory provision establishes an exception to the general
prohibition
against
Compensation Act.
such
suits
under
West
Virginia
Workers’
See W. Va. Code § 23-2-6.
West Virginia’s deliberate intention statute provides two
independent means for proving deliberate intention.
Specifically,
West Virginia Code § 23-4-2(d)(2)(i) states:
The immunity from suit provided under this section and
under sections six [§ 23-2-6] and six-a [§ 23-2-6a],
article two of this chapter may be lost only if the
employer or person against whom liability is asserted
acted with “deliberate intention”. This requirement may
be satisfied only if:
(i) It is proved that the employer or person against whom
liability is asserted acted with a consciously,
subjectively and deliberately formed intention to produce
the specific result of injury or death to an employee.
This standard requires a showing of an actual, specific
intent and may not be satisfied by allegation or proof
of: (A) conduct which produces a result that was not
specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C)
willful, wanton or reckless misconduct . . . .
West
Virginia
Code
§
23-4-2(d)(2)(i).
“Neither
negligence,
recklessness nor willful misconduct satisfies the requirements of
this subsection–instead, in a single i claim a plaintiff must prove
that an employer or other person granted immunity actually tried to
injure or kill him.”
Williams v. Harsco Corp., 1:10CV206, 2011 WL
3035272 (N.D. W. Va. July 22, 2011) (citing Syl. Pts. 7-9, Tolliver
v. Kroger Co., 498 S.E.2d 702 (W. Va. 1997)).
CCC specifically argues that the plaintiff fails to support a
claim under subpart (i) because she has not alleged that (1)
11
Conaway and Fox assigned Clutter to transport equipment on the
dangerous track; (2) Conaway and Fox were present when the accident
occurred; (3) Conaway and Fox directed Clutter to re-rail the
equipment or use a specific method; or (4) Conaway and Fox wielded
the bar or intended injury. As to CCC’s assertions, this Court has
previously found that this type of argument is invalid. In Beagle,
this Court held that a defendant’s “presence or absence at the
worksite on the day of the accident has no bearing on the question
of intent.”
Beagle, 5:09CV33 at *7.
Each of these specific
arguments is rooted in the individual defendants having to have
some sort of presence at the worksite when the injury or death
occurred. As this Court has previously held, a plaintiff still has
the
“possibility”
alleging
that
the
of
establishing
defendant
was
a
cause
present
at
of
action
the
time
without
of
the
complained of injury.
Further, a “possibility” that a cause of action will be found
valid can be found based on the plaintiff’s allegations rooted in
the applicable statutory language. Rinehart, 660 F. Supp. at 1142.
Here, the plaintiff has pleaded her allegations based on the
specific
language
background
to
of
connect
subpart
the
(i)
and
individual
has
provided
defendants
to
factual
those
allegations. As this Court has previously stated, a plaintiff does
not need to show that her allegations “are sufficiently pled to
meet the more stringent standard of a motion to dismiss.” Hoffman,
12
2010 WL 4968266, *5, n. 2.
Specifically, in Hoffman, this Court
granted remand where the plaintiff had only made allegations based
on the statutory language of both subparts (i) and (ii).
Although
the defendants argue otherwise, this Court found that remand was
proper based on the allegations pled by the plaintiff and that
finding applied to both the subpart (i) and subpart (ii) claims.
Id.
Hence, why this Court stated that it was only finding “that
the allegations are sufficiently pled to overcome the defendants’
claim of fraudulent joinder.”
Hedrick,
cited
by
Id.
CCC,
provides
further
support
of
the
assertion that a plaintiff may follow the statutory language, with
sufficiently pleaded facts, in order to survive a fraudulent
joinder.
As stated previously, the court in Hedrick found that
remand was not proper because the plaintiff had not asserted that
the
defendant
acted
with
a
“consciously,
subjectively
and
deliberately formed intention to produce the specific result of
injury or death . . . ” and had pleaded “no additional facts
supporting the inference” that the defendant intended to injure or
kill the plaintiff.
Hedrick, 2013 WL 2422661 at *3.
Taken in the
inverse, the plaintiff’s claim would have been properly pled if he
had done those two things.
Here, the plaintiff has clearly
provided allegations under the statutory language and has provided
additional facts to show intent on behalf of the individual
defendants.
13
Although CCC would like to have this Court apply a more
stringent standard, it is clear that even where remand is not
granted, courts still apply a lenient test that only requires a
“glimmer of hope.”
Hartley, 187 F.3d at 426.
This “glimmer of
hope” in statutorily pled cases, as seen above, can be found in a
complaint that follows a close recitation of the statutory language
but also provides some factual content to support the required
statutory elements.
That standard has been met here and thus, CCC
has failed to prove by clear and convincing evidence that the
plaintiff has no possibility, or a “glimmer of hope, to establish
a cause of action against the in-state defendant in state court.”
Id. at 424.
B.
Attorney’s Fees and Costs
Title 28, United States Code, Section 1447(c) provides that
“[a]n order remanding the case may require payment of just costs
and any actual expenses, including attorney’s fees, incurred as a
result of the removal.”
With respect to the award of attorney’s
fees and costs, the United States Court of Appeals for the Fourth
Circuit has found that 28 U.S.C. § 1447(c) “provides the district
court with discretion to award fees when remanding a case” where it
finds such awards appropriate.
(4th Cir. 1996).
In re Lowe, 102 F.3d 731, 733 n.2
However, courts may award attorney’s fees “only
where the removing party lacked an objectively reasonable basis for
seeking removal.
Conversely, when an objectively reasonable basis
14
exists, fees should be denied.”
Martin v. Franklin Capital Corp.,
546 U.S. 132, 141 (2005).
This Court finds that such fees and costs are appropriate in
this matter.
CCC did not assert a colorable claim to removal
jurisdiction in this Court because its claim was contrary to the
settled authority of this Court. A removing party does not have an
objectively reasonable basis for removal if the basis for removal
is contrary to clear case law and “a cursory examination of the
applicable law would have revealed that the federal district court
does not have jurisdiction.”
Husk v. E.I. Du Pont De Nemours and
Co., 842 F. Supp. 895, 899 (S.D. W. Va. 1994); see also Powers v.
Cottrell, Inc., 728 F.3d 509, 520 (6th Cir. 2013); Gibson v.
Tinkey, 822 F. Supp. 347, 349 (S.D. W. Va. 1993).
As set forth
above, this Court and other courts have held previously that
subpart
(i)
claims,
such
as
the
plaintiff’s,
meet
the
less
stringent standard applicable to the review of a fraudulent joinder
claim.
The plaintiff has set forth enough facts against the
individual defendants to meet the requirements for remand and it is
now clear based on the case law that individual supervisors or
employees may be sued under subpart (i).
A superficial review of
the current precedent and the underlying complaint should have
impeded CCC’s removal.
This Court has spoken to at least one if not all four of CCC’s
specific
arguments
as
to
why
intent
15
was
not
shown
by
the
plaintiff’s allegations. Further, this Court and other courts have
found that a complaint may track statutory language and that a
plaintiff is not required to plead sufficient facts so as to
survive a motion to dismiss but only to support a finding that the
statutory elements have been pled as to the defendant.
However,
CCC filed a notice of removal in the face of such precedent.
Finally, CCC repeatedly focused on this Court applying the
stringent standard for a motion to dismiss and the fact that the
West Virginia Supreme Court had recently found that subpart (ii)
claims may not be brought against individual defendants.
6,
Young,
753
S.E.2d
at
54.
Both
arguments
appear
Syl. Pt.
to
be
diversionary tactics by CCC and were clearly not applicable to the
motion to remand by the plaintiff which could only be based on the
claims made under subpart (i) against Conaway and Fox, the nondiverse defendants.
Accordingly, because the facts in this case and prior case law
heavily weigh against CCC’s arguments in the notice of removal,
this Court finds that CCC’s removal was not objectively reasonable.
As an award of attorney’s fees and costs is discretionary, this
Court finds that the plaintiff is entitled to such fees and costs,
pursuant to § 1447(c), incurred because of CCC’s removal to this
Court.
Thus, although this Court is remanding this action to the
state court, the Court will retain the matter on its docket in
16
order to hold an evidentiary hearing regarding the fees and costs
associated with removal.
V.
Conclusion
For the reasons stated above, the plaintiff’s motion to remand
(ECF No. 12) is GRANTED, defendant Wayne Conaway’s and defendant
Steve D. Fox’s motions to dismiss (ECF Nos. 8 and 9) are DENIED
WITHOUT PREJUDICE to be raised in state court, if appropriate.
Accordingly, it is ORDERED that this case be REMANDED to the
Circuit Court of Marion County, West Virginia.
Finally, the
plaintiff’s motion to stay (ECF No. 16) is DENIED AS MOOT.
However, as this Court found that an award of attorney’s fees
and costs is appropriate, the parties are DIRECTED to appear for an
evidentiary hearing on May 5, 2014 at 2:15 p.m. in the South
Courtroom on the Second Floor of the Federal Building at 1125
Chapline Street in Wheeling, West Virginia 26003.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Marion County, West Virginia.
DATED:
April 15, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
17
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