Dotson et al v. Elite Oil Field Services, Inc. et al
Filing
26
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND 5 , GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT 8 , DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT AS TO HESS 14 , AND DENYING AS MOOT HESS SECONDMOTION TO DISMISS 24 . Signed by District Judge Irene M. Keeley on 3/4/15. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONALD DOTSON, CHRISTINE DOTSON,
H.G.D., a minor, D.D.IV, a minor,
and A.H., a minor,
Plaintiffs,
v.
//
CIVIL ACTION NO. 1:15CV7
(Judge Keeley)
ELITE OIL FIELD SERVICES, INC.
And JEFFREY A. HESS,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
Pending before the Court is the motion to remand filed by the
plaintiffs, Donald Dotson, Christine Dotson, H.G.D., a minor,
D.D.IV, a minor, and A.H., a minor (“the Dotsons”).
Also pending
is the motion to dismiss filed by the defendant, Jeffrey A. Hess
(“Hess”) (Dkt. No. 8).
For the reasons that follow, the Court
DENIES the motion to remand (Dkt. No. 5), GRANTS the motion to
dismiss Hess from the original complaint (Dkt. No. 8), DISMISSES
the amended complaint as to Hess (Dkt. No. 14), and DENIES AS MOOT
Hess’ second motion to dismiss (Dkt. No. 24).
I. BACKGROUND
Plaintiff Donald Dotson (“Dotson”) worked for defendant Elite
Oil Field Services, Inc. ("Elite") as a semi-tractor operator.
In
that capacity, Dotson hauled steel containers or boxes of mud from
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
oil and gas well operations to a designated disposal facility.
To
that end, Elite assigned Dotson to a 2000 model T-800 Kenworth
tractor hauling a roll-off trailer.
As of August 27, 2013, Elite had contracted with a third-party
to haul mud from a gas well drilling operation near Jacksonburg,
West Virginia, and had assigned Dotson to that job. Hess, Dotson’s
supervisor
and
a
truck
boss
for
Elite,
was
responsible
for
assigning Elite’s vehicles to jobs and to drivers, and managing the
scheduling of vehicle maintenance and other repairs.
On August 16 or 17, 2013, Dotson, who was returning from
dropping off a load, was operating the truck with an empty trailer
on Route 50 in Harrison County, West Virginia.
The truck’s brakes
overheated, began to smoke, and caught on fire. Dotson stopped the
vehicle, called Hess, and explained to him that the brakes had
caught on fire.
Hess arranged for Dotson to be picked up, for the
truck to be towed, and for the necessary repairs to be made.
Dotson alleges that, rather than having the necessary repairs
made, Hess assigned the truck to another driver, who reported
transmission damage.
On August 22, 2013, the truck was taken to a
repair
Preston
facility
repaired.
in
County
to
have
the
transmission
Once the transmission was repaired, Hess told Dotson
2
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
that the truck was fixed, and that he was to take the truck to
Jacksonburg to haul mud.
On August 27, 2013, Dotson drove the truck to the drilling
pad, where it was loaded with a box filled with drilling mud.
As
Dotson began to drive the truck off the drilling site, which
required a descent down a haul road with an approximately 14%
downhill grade, the truck’s brakes failed, and the truck careened
out of control.
Eventually, it crashed into a ditch or creek bed
on the right side of the road, resulting in severe injuries to
Dotson, including a head injury and a fracture and dislocation of
his left hip.
On December 19, 2014, the Dotsons sued Elite Oil and Hess in
the Circuit Court of Harrison County, West Virginia (Dkt. No. 3-1).
On January 16, 2015, Elite and Hess filed a notice of removal in
this Court, alleging diversity jurisdiction (Dkt. No. 1).
The
Dotsons are residents of Doddridge County, West Virginia (Dkt. No.
3 at 2). Elite is a Pennsylvania corporation with its principal
place of business in Waynesburg, Pennsylvania.
Id.
Hess is a
citizen of West Virginia; however, Elite and Hess contend that he
was fraudulently joined as a party in order to defeat diversity.
Id. at 3.
3
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
On January 22, 2015, the Dotsons filed a motion to remand the
case to state court (Dkt. No. 5).
On February 5, 2015, Elite and
Hess responded, opposing the motion on the ground that Hess was
fraudulently joined (Dkt. No. 11). Then, on January 23, 2015, Hess
filed a motion to dismiss, alleging that the complaint fails to
assert a deliberate intention claim cognizable under West Virginia
law (Dkt. No. 9 at 2).
The Dotsons filed a response opposing Hess’
motion on February 9, 2015 (Dkt. No. 13).
Hess filed a reply on
1
February 16, 2015 (Dkt. No. 18).
The Dotsons also amended their complaint as of right on
February 9, 2015 (Dkt. No. 14).2
On February 16, 2015, at the
Court’s direction, Elite and Hess filed a supplemental response in
opposition to the motion to remand in light of the Dotson’s amended
complaint
(Dkt.
No.
17),
and
the
Dotsons
supplemented
their
1
It is generally improper for the Court to decide a Rule
12(b)(6) motion before ruling on a pending motion to remand.
Stafford EMS, Inc. v. J.B. Hunt Transport., Inc., 270 F.Supp.2d
773, 774 (S.D.W. Va. 2003).
2
The Dotsons did not amend their complaint within 21 days of
serving it (Dkt. No. 1). Fed. R. Civ. Pro. 15(a)(1)(A). They did,
however, amend within 21 days after service of Elite Oil’s answer
(Dkt. No. 7), which was filed earlier than Hess’ motion to dismiss
(Dkt. No. 8).
Fed. R. Civ. Pro. 15(a)(1)(B); City of New
Martinsville, W. Va. v. Public Service Com’n of West Virginia, 2013
WL 2244398 at *2 (S.D.W. Va. May 21, 2013).
4
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
response to the motion on February 20, 2015 (Dkt. No. 20).
The
motions are now fully briefed and ready for review.3
II. LEGAL STANDARD
A.
Fraudulent Joinder
When an action is removed from state court, a federal district
court must determine whether it has original jurisdiction over the
plaintiff’s claims. Kokkonen v. Guardian Life Ins. Co. Of Am., 511
U.S. 375, 377 (4th Cir. 1994).
limited jurisdiction.
“Federal courts are courts of
They possess only that power authorized by
the Constitution and statute, which is not to be expanded by
judicial decree.”
Id.
Federal courts have original jurisdiction primarily over two
types of cases, (1) those involving federal questions under 28
U.S.C. § 1331, and (2) those involving diversity of citizenship
under 28 U.S.C. § 1332.
When a party seeks to remove a case based
on diversity of citizenship under 28 U.S.C. § 1332, that party
bears the burden of establishing “the amount in controversy exceeds
the sum or value of $75,000, exclusive of interests and costs, and
3
After the Dotsons filed their amended complaint, both Elite
Oil and Hess filed motions to dismiss (Dkt. Nos. 22 and 24).
Neither of those motions are fully briefed at this time.
5
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
is between citizens of different states.”
28 U.S.C. § 1332.
Courts should resolve any doubt “about the propriety of removal in
favor of retained state court jurisdiction.”
Marshall v. Manville
Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993).
The doctrine of fraudulent joinder is a narrow exception to
the complete diversity requirement.
Jackson v. Allstate Ins. Co.,
132 F.Supp.2d 432, 433 (N.D.W. Va. 2000) (Broadwater, J.).
If the
doctrine applies, the Court can exercise removal jurisdiction even
though a non-diverse party is a defendant.
Id. (citing Mayes v.
Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).
The Court can
disregard the citizenship of and dismiss the non-diverse defendant,
thereby retaining jurisdiction over the case.
Mayes, 198 F.3d at
461.
The removing party bears the “heavy burden of showing that
there is no possibility of establishing a cause of action against
[a] non-diverse party” by clear and convincing evidence.
Jackson,
132 F.Supp.2d at 433 (citing Hartley v. CSX Transp. Inc., 187 F.3d
422, 424 (4th Cir. 1999)); Clutter v. Consolidation Coal Co., 2014
WL 1479199 at *4 (N.D.W. Va. Apr. 15, 2014) (Stamp, J.).
In the
alternative, the removing party can establish that “there has been
outright
fraud
in
the
plaintiff’s
6
pleading
of
jurisdictional
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
facts.”
Pritt v. Republican Nat. Committee, 1 F.Supp.2d 590, 592
(S.D.W. Va. 1998).
“[F]raudulent joinder claims are subject to a
rather black-and-white analysis in this circuit.
gray are resolved in favor of remand.”
Any shades of
Adkins v. Consolidation
Coal Co., 856 F.Supp.2d 817, 820 (S.D.W. Va. 2012).
The Court must resolve all issues of fact and law in the
plaintiff’s
favor,
but,
in
doing
allegations of the pleadings.”
so,
“is
not
bound
by
the
Marshall, 6 F.3d at 232-33; AIDS
Counseling and Testing Centers v. Group W Television, Inc., 903
F.3d 1000, 1004 (4th Cir. 1990).
Instead, the Court can consider
“the entire record, and determine the basis of joinder by any means
available.”
AIDS Counseling, 903 F.3d at 1004 (quoting Dodd v.
Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir. 1964)). The
standard for fraudulent joinder is more favorable to the plaintiff
than the standard for a Rule 12(b)(6) motion to dismiss.
Mayes,
198 F.3d at 464.
Significantly, when ruling on a motion to remand based on
fraudulent joinder, the Court cannot consider post-removal filings
“to the extent that they present new causes of action or theories
not raised in the controlling petition filed in state court.”
Griggs v. State Farm Lloyds, 181 F.3d 695, 700 (5th Cir. 1999).
7
A
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
plaintiff cannot “‘re-plead the complaint [after removal] in an
attempt to divest this court of jurisdiction by hindsight.’” McCoy
v. Norfolk Southern Ry. Co., 858 F.Supp.2d 639, 642 n. 1 (S.D.W.
Va. 2012) (quoting Justice v. Branch Banking & Trust Co., 2009 WL
853993 at *7 (S.D.W. Va. Mar. 24, 2009)). The Court must determine
removal jurisdiction “on the basis of the state court complaint at
the time of removal, and . . . a plaintiff cannot defeat removal by
amending it.”
Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d
256, 265 (5th Cir. 1995).
Nonetheless, “if at any time before
final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”
28 U.S.C. §
1447(c).
B.
Deliberate Intention
The West Virginia Workers’ Compensation Act generally provides
broad immunity to qualifying employers against employees’ tort
actions.
See W. Va. Code § 23-2-6.
The “deliberate intention”
statute, however, carves out an exception to that immunity.
An
employee may recover from an employer or “person against whom
liability is asserted” under either of two prongs.
W. Va. Code §
23-4-2(d)(2); Syl. Pt. 1, Mayles v. Shoney’s, Inc., 405 S.E.2d 15
(1990).
Under the first prong, § 23-4-2(d)(2)(i), an employee can
8
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
satisfy the statutory requirements by proving “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.”
The employee
must show an actual, specific intent and may not satisfy the
standard by allegation or proof of:
(A)Conduct which produces a result that was not
specifically intended;
(B)[C]onduct which constitutes negligence, no matter how
gross or aggravated; or
(C)[W]illful, wanton or reckless misconduct.
W. Va. Code § 23-4-2(d)(2)(i) [“a Section I claim”].
An employee
can sue either an employer or a supervisor or co-employee using a
Section I claim.
See W. Va. Code § 23-4-2(d)(2)(i).
To properly plead a prima facie Section I claim, the employee
must
allege
that
“an
employer
‘acted
with
a
consciously,
subjectively and deliberately formed intention to produce the
specific result of injury[.]’” Syl. Pt. 9, Tolliver v. Kroger Co.,
498
S.E.2d
702,
715
(W.
Va.
1997).
“‘Neither
negligence,
recklessness nor wilful misconduct satisfies the requirements of
this subsection–instead, . . . a plaintiff must prove that a . . .
person granted immunity actually tried to injure or kill him.’”
Williams v. Harsco Corp., 2011 WL 3035272 at *2 (N.D.W. Va. July
9
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
22, 2011) (Keeley, J.) (quoting Syl. Pts. 7-9, Tolliver, 498 S.E.2d
at 702).
In the alternative, under Section II of the statute, an
employee can recover damages from an employer by proving the
following five elements:
(A) That a specific unsafe working condition existed in
the workplace which presented a high degree of risk and
a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by the
specific unsafe working condition;
(C) That the specific unsafe working condition was a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly
accepted and well-known safety standard within the
industry or business of the employer, as demonstrated by
competent evidence of written standards or guidelines
which reflect a consensus safety standard in the industry
or business, which statute, rule, regulation or standard
was specifically applicable to the particular work and
working condition involved, as contrasted with a statute,
rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C), inclusive, of
this paragraph, the employer nevertheless intentionally
thereafter exposed an employee to the specific unsafe
working condition; and
(E) That the employee exposed suffered serious
compensable injury or compensable death as defined in
10
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
section one, article four, chapter twenty-three whether
a claim for benefits under this chapter is filed or not
as a direct and proximate result of the specific unsafe
working condition.
§ 23-4-2(d)(2)(ii)(A)-(E) [a “Section II claim”].
A Section II claim may only be brought against an employer.
Syl. Pt. 6, Young v. Apogee Coal Co., LLC, 753 S.E.2d 52, 52 (W.
Va. 2013).
A non-employer person, such as a supervisor or a co-
worker, may not be made a defendant in a cause of action under
Section II.
Id. at 54.
IV. ANALYSIS
A.
Allegations in the Original Complaint
Dotson’s original complaint alleges that his injuries were
caused by “the deliberate intention” of Hess, as that term is
defined in W. Va. Code § 23-4-2(d) (Dkt. No. 3-1 at 9).4
Hess “was
specifically aware of the failing, unmaintained, and unrepaired
condition of the truck’s braking system and that such condition
created a high degree of risk and the strong probability of serious
4
The Dotsons also plead a loss of consortium claim based on
the loss of Dotson’s “comfort, guidance, and companionship.” (Dkt.
No. 3-2 at 10). It is well-established, however, that a loss of
consortium claim is derivative of the deliberate intention claim,
and cannot be independently asserted. Evans v. CDX Services, LLC,
528 F.Supp.2d 599, 599 n. 1 (S.D.W. Va. 2007).
11
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
injury or death.”
Id.
Dotson goes on to allege that the unsafe
working condition of the braking system violated safety standards
and regulations, but that Elite and Hess intentionally exposed him
to the specific unsafe working condition anyway, resulting in
severe and permanent injuries.
Id. at 9-10.
In their motion to remand, the Dotsons claim that, because
they generally pleaded a deliberate intention cause of action
against Hess under W. Va. Code § 23-4-2(d), without mentioning
either Section I or Section II, their cause of action against Hess
should stand (Dkt. No. 6 at 2).
The Dotsons contend that they
specifically pleaded facts to support a claim under Section I
because Hess “was the primary actor on behalf of Defendant Elite
Id. at 3.
whose conduct ultimately caused the subject crash.”
They state that, as alleged in the complaint, Hess’ conduct “is
consistent
with
a
claim
under
[Section
I]
.
.
.
.”
Id.
Specifically, the Dotsons point to the facts that Hess was Dotson’s
direct supervisor, that he was aware of a specific
failure, that
he deliberately chose to not have the failure repaired, that he
lied to Dotson about the failure having been repaired, and that he
deliberately assigned Dotson to a job where he knew heavy loads
would be carried down a steep grade.
12
Id.
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
Elite Oil and Hess bear the “heavy burden of showing that
there is no possibility of establishing a cause of action against
[a] non-diverse party” by clear and convincing evidence.
Jackson,
132 F.Supp.2d at 433 (citing Hartley, 187 F.3d at 424).
They have
met that burden as to the original complaint; although the Dotsons
have specifically set forth the elements of a Section II claim and
have pleaded facts corresponding to each element, they nowhere
mention Section I (Dkt. No. 3-2 at 9-10).
Although the Dotsons are not required to use any magic words
to adequately plead a cause of action under Section I, they must
plead the elements of such a claim.
This they have failed to do as
to several of the core elements, including a conscious, subjective,
and deliberately formed intention on Hess’ part to cause Dotson’s
injury.
Syl. Pt. 9, Tolliver, 498 S.E.2d at 715.
To reiterate,
under the statute Dotson “must show an actual, specific intent and
may not satisfy the standard by allegation or proof of (A)[c]onduct
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.” W. Va.
Code § 23-4-2(d)(2)(i).
wilful
misconduct
“‘Neither negligence, recklessness nor
satisfies
the
13
requirements
of
this
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
subsection–instead, . . . a plaintiff must prove that a . . .
person granted immunity actually tried to injure or kill him.’”
Williams, 2011 WL 3035272 at *2 (quoting Syl. Pts. 7-9, Tolliver,
498 S.E.2d at 702).
At best, the Dotsons have alleged that Hess knew about the
truck’s faulty brakes, but nonetheless recklessly or negligently
assigned it to Dotson.
They have not alleged that Hess purposely
assigned Dotson to a job with the intent of causing him serious
injury, harm, or death from a likely crash (Dkt. No. 3-2 at 8-9).
The complaint therefore falls far short of the actual, specific
intent necessary to satisfy Section I. See Hedrick v. E.I. du Pont
de Nemours and Co., 2013 WL 2422661 at *3 (S.D.W. Va. June 3, 2013)
(concluding that the plaintiff had no possibility of succeeding on
his Section I claim against the defendant, his former supervisor,
because the complaint did not allege that the defendant intended to
produce the specific result of injury or death).
Based on the foregoing, the Dotsons have no possibility of
succeeding on a Section I claim in their original complaint, making
remand improper. Moreover, insofar as they have attempted to plead
a Section II claim against Hess, such a claim fails because it may
only be brought against an employer.
14
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
B.
Operative Complaint at the Time of Removal
As already noted, the amended complaint filed by the Dotsons
was not the operative pleading when this case was removed.
the
motion
operative
dismissing
to
remand
complaint
Hess
at
based
standard,
the
on
time
the
of
fraudulent
Court
must
removal.
joinder
Under
consider
This
inasmuch
the
requires
as
the
original complaint fails to mention, much less plead, a Section I
claim.
The Dotsons’ amended complaint, however, arguably pleads an
adequate cause of action against Hess under Section I that would
divest this Court of subject matter jurisdiction. The question for
the Court therefore is what to do when a plaintiff who files an
amended complaint as of right includes claims against a preexisting, non-diverse defendant that are sufficient to defeat
diversity jurisdiction.
In this regard, the case of Cavallini v. State Farm Mut. Auto
Ins. Co., 44 F.3d 256, 258-59 (5th Cir. 1995), is instructive.
In
Cavallini, the plaintiffs filed a motion to remand, and five months
later sought leave of court to amend their complaint to “clarify”
facts supporting a cause of action against a defendant.
The
district court denied the plaintiffs’ motion to remand, holding
15
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
that the proposed amended complaint could not be considered, and
that, as of the time of removal, the original complaint had failed
to set forth a cause of action against the defendant, making remand
improper.
Id. at 259-60.
On appeal, the United States Court of Appeals for the Fifth
Circuit affirmed the district court’s ruling, agreeing that the
original complaint did not contain a cognizable claim against the
non-diverse defendant.
Id.
In doing so, the Fifth Circuit
reiterated that a complaint amended post-removal cannot divest the
court of subject matter jurisdiction, and that the district court
did not err in denying the plaintiffs’ motion to amend their
complaint.5
Id. at 264.
This Court is unaware of any case decided by the United
States Court of Appeals for the Fourth Circuit that is on all fours
with the facts here.
It is clear, however, that, in the Fourth
5
Other courts in similar situations have hesitated to retain
jurisdiction over a case with incomplete diversity, and have either
denied the plaintiff’s motion to amend the complaint, or have
remanded. See, e.g., Bevels v. Am. States Ins. Co., 100 F.Supp.2d
1309, 1309 (M.D. Ala. 2000) (declining to allow joinder of a nondiverse defendant post-removal); Mills Group Ltd., v. Oceanografia,
S.A. de C.V., 2009 WL 3756931 at *2 (S.D. Tex. Nov. 6, 2009)
(granting the plaintiff’s motion to amend, but then immediately
remanding for lack of jurisdiction, holding that it could not
continue to preside over a case between non-diverse defendants).
16
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
Circuit, post-removal events, including amending a complaint to
reduce
the
amount
in
controversy
or
to
eliminate
a
federal
question, generally do not divest courts of jurisdiction.
See,
e.g., St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
292, 58 S.Ct. 586, 592 (1938) (finding that events occurring after
removal, including amending the pleadings to reduce the claim below
the
jurisdictional
amount,
will
not
deprive
the
court
of
jurisdiction); Brown v. East States Corp., 181 F.2d 26, 27 (4th
Cir.
1950)
(holding
that
the
plaintiff’s
amended
complaint,
eliminating the federal question cause of action, did not require
remand); Petroleum Helicopters, Inc. v. Apical Industries, Inc.,
2013 WL 2297066 at *6-7 (W.D. La. May 23, 2013) (refusing to remand
after the plaintiffs amended their complaint to assert sufficient
claims against a non-diverse defendant); DTND Sierra Investments,
LLC v. Bank of New York Mellon Trust Co. N.A., 2013 WL 432923 at *5
(W.D. Tex. Feb. 4, 2013) (noting that, “[a]lthough it seems in
tension with the requirements of diversity jurisdiction to maintain
jurisdiction over a case that asserts claims against a non-diverse
defendant . . . [s]uch post-removal cases do not divest the court
of jurisdiction, so long as jurisdiction existed at the time of
removal.”).
17
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
The rule that post-removal events do not divest the Court of
jurisdiction “is grounded not only in well over a half-century of
precedent, but also in sound policy.
If parties were able to
defeat jurisdiction by way of post-removal reductions of the amount
in
controversy,
proceedings.”
they
could
unfairly
manipulate
judicial
Hatcher v. Lowe’s Home Centers, Inc., 718 F.Supp.2d
684, 688 (E.D. Va. 2010).6
When a party seeks to amend its
complaint to add a non-diverse defendant, the court may either
allow joinder of additional defendants who destroy subject matter
jurisdiction, and remand the case, or deny joinder of a non-diverse
defendant.
28 U.S.C. § 1447(e).7
In the absence of controlling case law in this circuit, the
Court concludes that it must consider only the original complaint
6
On the other hand, post-removal events to “clarify” the
original pleadings can, in some circumstances, divest a court of
jurisdiction.
That is not the case here.
See Hatcher, 718
F.Supp.2d
at
588
(citing
cases
considering
post-removal
stipulations when the jurisdictional basis or claims are
ambiguous); Ferguson by Ferguson v. Wal-Mart Stores, Inc., 1994 WL
653479 at *2 (D.S.C. Nov. 15, 1994) (holding that the plaintiff’s
stipulation properly divested the court of jurisdiction because the
amount in controversy in the complaint was unclear).
7
As discussed later on, in the Fourth Circuit, courts can
decline to allow parties to amend their complaint to add
additional, non-diverse defendants who would defeat jurisdiction,
notwithstanding the provision in Rule 15(a) for allowing one
amendment as of right. Mayes, 198 F.3d at 462.
18
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
that existed at the time of removal for purposes of the motion to
remand.
This path is “grounded not only in well over a half-
century of precedent, but also in sound policy.” Hatcher, 718
F.Supp.2d at 688.
The relevant time for determining jurisdiction remains at the
time of removal, when the original complaint was the only operative
pleading. Based on that, and concluding that Hess was fraudulently
joined, the Court will disregard Hess’ citizenship for purposes of
determining diversity jurisdiction at the time of removal, and
dismiss him from the case, notwithstanding the new allegations in
the amended complaint.
See DTND Sierra,
2013 WL 432923 at *6.
Following on that, it is clear that complete diversity existed at
the time of removal between the Dotsons, who are citizens of West
Virginia, and Elite Oil, a citizen of Pennsylvania (Dkt. No. 3-2 at
5).8
Therefore, the Court DENIES the plaintiffs’ motion to remand
8
Complete diversity was the only contested aspect of this
Court’s jurisdiction.
The allegations for damages in the
complaint, although not specifically laid out in dollar figures,
include compensatory damages for medical expenses, loss of
consortium, pain and suffering, emotional distress, interest, and
punitive damages (Dkt. No. 3-2 at 10-11). Considering the judgment
the Dotsons could receive, Elite Oil and Hess have established, by
a preponderance of the evidence, that the amount in controversy
exceeds $ 75,000. Smith v. Booth, 2007 WL 2963776 at *2 (S.D.W.
Va. Oct. 9, 2007).
19
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
(Dkt. No. 5) and GRANTS Hess’ first motion to dismiss the original
complaint (Dkt. No. 8).
C.
Hess’ Continued Presence in the Case
Next, it is necessary to analyze the viable Section I claim
alleged against Hess in the amended complaint.
Notwithstanding
those new allegations, the question is whether, after already
having denied the motion to remand, the Court may keep Hess, a nondiverse defendant, in the case and still retain jurisdiction.
In this regard, the Fourth Circuit’s decision in Mayes v.
Rapoport, 198 F.3d 457 (4th Cir. 1999), is helpful.
There, the
Fourth Circuit addressed a plaintiff’s attempt to add a new, nondiverse defendant after removal.
It noted that courts could use
the doctrine of fraudulent joinder to avoid a plaintiff’s attempt
to add a non-diverse defendant post-removal “for the specific
purpose of avoiding federal jurisdiction.”9
Id. at 463.
The
Fourth Circuit left district courts with two options when a
plaintiff seeks to add non-diverse defendants post-removal: either
allow
joinder
and
remand,
or
9
deny
joinder.
Id.
at
462.
The Fourth Circuit found that fraudulent joinder was
applicable, notwithstanding the fact that the plaintiff sought to
add a non-diverse defendant after the court already possessed
jurisdiction. Mayes, 198 F.3d at 463.
20
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
Importantly, it emphasized that the removal statute “does not allow
a district court to retain jurisdiction once it permits a non[]diverse defendant to be joined in the case.”
Id.
As for plaintiffs who amend their complaint without leave of
court under Rule 15(a), the Fourth Circuit rejected the idea that
the court must remand, finding instead that the district court “has
the authority to reject a post-removal joinder that implicates 28
U.S.C. § 1447(e), even if the joinder was without leave of court.”
Id. at 462, n. 11.
As in Mayes, the Dotsons seek to add an additional claim
against an additional party.
Although Hess was “present” at the
time of removal, he has been dismissed as fraudulently joined. The
Dotsons’ amended complaint asserts a facially viable deliberate
intention claim against Hess that satisfies the lenient fraudulent
joinder standard.
Therefore, the Court either must allow the
amended complaint and remand the case to state court, or must
dismiss the amended complaint as to Hess.
See id. at 461 (stating
that fraudulent joinder allows the court to retain jurisdiction by
dismissing non-diverse defendants).
In deciding this question, the Court is mindful of the longstanding principle that post-removal events, generally speaking, do
21
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
not divest courts of jurisdiction. In St. Paul Mercury Indem. Co.,
303 U.S. at 292-93, 58 S.Ct. at 492, the Supreme Court of the
United States noted that events after removal that reduce the
amount in controversy do not destroy the court’s jurisdiction “once
it has attached.”
“Without such a rule, disposition of the
[jurisdictional] issue would never be final, but would instead have
to be revisited every time the plaintiff sought to amend the
complaint to assert a new cause of action against the nondiverse
defendant, all at considerable expense and delay to the parties and
the state and federal courts involved.” Cavallini, 44 F.3d at 264.
Because the Dotsons’ amended complaint would add Hess, a nondiverse
defendant
who
has
been
dismissed
from
the
original
complaint, the Court has the discretion to deny joinder. 28 U.S.C.
§ 1447(e); Mayes, 198 F.3d at 462.
consider
all
relevant
factors,
In doing so, the Court may
including
the
purpose
of
the
Dotsons’ amendment, whether they have been dilatory, whether they
will be injured if the amendment is not allowed, and any other
factors bearing on the equities.
Mayes, 198 F.3d at 462-63.
After considering the pleadings and briefing, the Court finds
that the Dotsons’ amended complaint was submitted primarily for the
purpose of defeating federal diversity.
22
See Gum v. General Elec.
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
Co., 5 F.Supp.2d 412, 414 (S.D.W. Va. 1998) (finding that the
amended complaint was submitted to avoid federal jurisdiction, and
noting as significant that the amendments were filed soon after the
case was removed, and before significant discovery occurred).
The Court further finds that the Dotsons were dilatory in
amending their complaint.
underlying
their
new
They obviously were aware of the facts
Section
I
claim,
as
they
are
the
same
operative facts underlying the rest of the claims in the case.
Instead of ensuring that the Section I claim against Hess was
adequately pleaded in the first instance, they waited until the
motion
to
remand
was
substantially
briefed,
and
used
the
defendants’ argument in that briefing to “improve” their claims and
amend the complaint in order to add a new Section I claim against
Hess.
Finally, the Court has a “virtually unflagging obligation” to
exercise its jurisdiction.
Colorado River Water Conservation
District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236 (1976).
It finds that the Dotsons will not suffer serious prejudice should
Hess
be
dismissed.
Therefore,
the
Court
DISMISSES
WITHOUT
PREJUDICE the Dotsons’ amended complaint as to Hess (Dkt. No. 14),
23
DOTSON V. ELITE OIL FIELD SERVICES
1:15CV7
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND [DKT. NO.
5], GRANTING MOTION TO DISMISS HESS FROM THE ORIGINAL COMPLAINT
[DKT. NO. 8], DISMISSING WITHOUT PREJUDICE THE AMENDED COMPLAINT
AS TO HESS [DKT. NO. 14], AND DENYING AS MOOT HESS’ SECOND
MOTION TO DISMISS [DKT. NO. 24]
DISMISSES Hess from the case, and DENIES AS MOOT Hess’ second
motion to dismiss (Dkt. No. 24).
V. CONCLUSION
For the reasons discussed, the Court DENIES the Dotsons’
motion to remand (Dkt. No. 5), GRANTS Hess’ first motion to dismiss
the original complaint (Dkt. No. 8), DISMISSES WITHOUT PREJUDICE
the Dotsons’ amended complaint as to Hess (Dkt. No. 14), and DENIES
AS MOOT Hess’ second motion to dismiss (Dkt. No. 24).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: March 4, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
24
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