Hunt, et al. v. Johnson Western Gunite Company, et al.
Filing
79
MEMORANDUM OPINION: By Order entered 3/31/2011, the court granted plaintiffs' motion to remand and remanded this case to the Circuit Court of McDowell County, WV. The court concluded that it lacked jurisdiction over this matter and accordingly g ranted, to the extent it sought remand, plaintiffs' motion to remand. The motion to remand was denied to the extent it sought attorney fees and costs. Signed by Senior Judge David A. Faber on 5/10/2011. (cc: all counsel of record and certified cc: Clerk, Circuit Court of McDowell County, WV) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
SHERRY HUNT, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 1:10—00991
JOHNSON WESTERN GUNITE COMPANY,
et al.,
Defendants.
MEMORANDUM OPINION
By Order entered on March 31, 2011, the court granted
plaintiffs’ motion to remand and remanded this case to the
Circuit Court of McDowell County, West Virginia.
The reasons for
that decision follow.
I.
Factual and Procedural Background
This action arises from the death of Larry Dale Hunt on
October 22, 2009.
According to the allegations in the Complaint,
Hunt was employed by Johnson Western Gunite Company (“JWGC”) and,
at the time of his death, was performing excavation work as an
employee of JWGC.
Complaint at ¶¶ 17, 35.
Hunt was killed when
a section of the Big Sandy #3 railroad tunnel in which he was
working collapsed, covering him with tons of rock and concrete.
Id. at ¶ 17.
Hunt’s work at the Big Sandy #3 Tunnel was part of the
Heartland Corridor Clearance Improvement Project (“Heartland
Corridor Project” or “the Project”), an undertaking by Norfolk
Southern Railway Company (“NSRC”) to expand thirty railroad
tunnels in order to allow larger trains to travel along the
Heartland Corridor Line in Virginia, West Virginia, Kentucky, and
Ohio.
Id. at ¶¶ 13-14.
NSRC hired JWGC and Johnson Western
Constructors, Inc. (“JWC”) to serve as general contractors on the
Heartland Corridor Project.
Id. at ¶ 16.
Jacobs Associates was
hired to provide geotechnical engineering services and Hatch Mott
MacDonald, LLC (“HMM”) was the project designer.
Id.
STV/Ralph
Whitehead Associates, Inc. and STV, Inc. (collectively “STV”)
managed the project on behalf of NSRC and Rick Meredith, an STV
employee, was the project manager and senior engineer on the
Project.
Id.
As a result of Hunt’s death, his widow and the
administratrix of his estate, Sherry Hunt, filed suit in the
Circuit Court of McDowell County on June 29, 2010.1
Named as
defendants were: NSRC, JWGC, JWC, Jacobs Associates, HMM, STV,
Rick Meredith, and Swank Associated Companies, Inc., a contractor
employed on the Heartland Corridor Project.
The Complaint
alleges that all defendants were negligent and responsible for
Hunt’s death.
Plaintiffs seek damages for that negligence,
negligent infliction of emotional distress, loss of consortium,
and loss of parental consortium.
The Complaint also alleges
1
Specifically, Sherry Hunt filed suit Individually, as
Administratrix of the Estate of Larry Dale Hunt, and as the
parent of Ashton Hunt, a minor.
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deliberate intent on the part of JWGC and JWC, pursuant to West
Virginia Code § 23-4-2(d)(2)(ii)(A-E).
On August 6, 2010, NSRC removed the action to this court
pursuant to the court’s diversity jurisdiction under Title 28
United States Code Section 1332.
In support of removal, NSRC
argues that plaintiffs committed fraudulent joinder in suing Rick
Meredith, the only non-diverse defendant.2
Plaintiffs contend
that their claims against Meredith are valid and moved to remand
this action and for an award of costs and attorney fees incurred
as a result of defendants’ removal.
II.
Standard of Review
Federal district courts may exercise diversity jurisdiction
over civil actions in which the matter in controversy exceeds the
sum or value of $75,000.00 and is between citizens of different
states.
See 28 U.S.C. § 1332(a)(1).
Title 28 United States Code
Section 1441, known as the “removal statute,” provides that a
case filed in state court may be removed to federal court when it
is shown by the defendant that the federal court has original
jurisdiction.
See Mulcahey v. Columbia Organic Chems. Co., 29
F.3d 148, 151 (4th Cir. 1994).
Because removal raises federalism
concerns, the court must carefully scrutinize the facts to ensure
2
The Complaint alleges that both Sherry Hunt and Ashton
Hunt are residents of West Virginia. Id. at ¶¶ 1-2. Rick
Meredith is also alleged to be a resident of West Virginia. Id.
at ¶ 10. The Complaint says nothing about the citizenship of
these parties.
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that removal is appropriate.
Mulcahey, 29 F.3d at 151 (citing
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)).
The
removing defendant bears the burden of establishing that removal
is appropriate.
Landmark Corp. v. Apogee Coal Co., 945 F. Supp.
932, 935 (S.D. W. Va. 1996) (Copenhaver, J.).
“If federal
jurisdiction is doubtful, a remand is necessary.”
Mulcahey, 29
F.3d at 151.
Fraudulent joinder is an exception to the complete diversity
requirement of Section 1332.
The fraudulent joinder doctrine
allows a district court to disregard, for jurisdictional
purposes, the citizenship of certain non-diverse defendants,
assume jurisdiction over a case, dismiss the non-diverse
defendants, and thereby retain jurisdiction.
Mayes v. Rapoport,
198 F.3d 457, 461 (4th Cir. 1999).
A defendant is fraudulently joined if the plaintiff commits
outright fraud in his pleadings or if there is no possibility of
stating a claim against the resident defendant.
Id. at 464.
The
burden to show fraudulent joinder is particularly heavy.
Defendants must show that plaintiff cannot establish a claim
against the non-diverse defendant even after resolving all issues
of fact and law in plaintiff’s favor.
Id.
The standard to be
applied by the court is even more favorable to the plaintiff than
the standard for granting motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6).
Id. at 464, 466 (stating that a
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“glimmer of hope” for relief against the non-diverse defendant is
sufficient to defeat removal jurisdiction).
In making this
determination, the court is not limited to the allegations of the
pleadings, but may consider the entire record and determine the
basis of the joinder “by any means available.”
III.
A.
Id.
Analysis
Citizenship of Rick Meredith
Before turning to the fraudulent joinder argument, the court
addresses the threshold issue raised by Rick Meredith as to his
citizenship.
“In determining citizenship, a person is a citizen
of the state in which he is domiciled, meaning the state he
considers his permanent home.”
506 (D. Md. 2010).
Ward v. Walker, 725 F. Supp. 2d
The Complaint alleged that Rick Meredith was
a resident of West Virginia and the Notice of Removal did not
argue otherwise.
However, in an affidavit filed in this court on
December 29, 2010, Meredith contends that while he resides in
West Virginia and has done so since 2008 for purposes of his job,
he does not intend to make West Virginia his permanent residence.
Meredith’s affidavit does not, however, indicate that he is a
citizen of a state other than West Virginia.
As noted above, federal district courts may exercise
diversity jurisdiction over civil actions only where the matter
in controversy exceeds the sum or value of $75,000.00 and is
between citizens of different states.
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See 28 U.S.C.
§ 1332(a)(1) (emphasis added).
construed.”
“The statute must be strictly
Simmons v. Rosenberg, 572 F. Supp. 823, 824
(E.D.N.Y. 1983).
As such, in a diversity action, every party
must be a citizen of a state.
See, e.g., Simmons, 572 F. Supp.
at 824 (“[T]here is no diversity of citizenship under Section
1332(a)(1) or (2) where, as here, a party is a U.S. citizen [ ]
without state citizenship.”).
“In order to be a citizen of a
State within the meaning of the diversity statute, a natural
person must both be a citizen of the United States and be
domiciled within the State.”
Axel Johnson, Inc. v. Carroll
Carolina Oil Co., Inc., 145 F.3d 660, 663 (4th Cir. 1998)
(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828
(1989) (emphasis in original)).
Furthermore, our appeals court
has held that citizenship cannot be “inferred from allegations of
mere residence, standing alone.”
Id.3
In Simmons, a diversity action, the plaintiff merely alleged
that she was an American citizen and “a citizen of a state other
than the state of New York.”
572 F. Supp. at 825.
Noting that
“[d]iversity must be alleged with detail and certainty,” the
Simmons court dismissed the complaint for lack of subject matter
3
There is no question that, had it been filed in federal
court, the Complaint would have been insufficient to establish
the citizenship of the parties for purposes of diversity
jurisdiction. See, e.g., Realty Holding Co. v. Donaldson, 268
U.S. 398, 399 (1925) (“The bill alleges that . . . appellee [is]
a ‘resident’ of Michigan. This is not a sufficient allegation of
appellee’s Michigan citizenship.”).
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jurisdiction.
Id.
In so doing, the court stated that
plaintiff’s “vague allegation of alternative state residences
will not suffice” and that “there is little presented on the
record to establish with any certainty a state domicile.”
Id.
As the party seeking removal, NSRC bears the burden of
proving that removal was proper.
See Greer v. Crown Title Corp.,
216 F. Supp.2d 519, 521 (D. Md. 2002) (citing Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)).
Given the uncertainty surrounding Rick Meredith’s citizenship,
NSRC has failed to establish that this lawsuit is properly before
this court.
The court will, nevertheless, consider NSRC’s
allegations that Meredith was fraudulently joined solely for the
purposes of defeating diversity.
B.
Fraudulent Joinder
As to Rick Meredith, the Complaint makes the following
allegations:
62.
At all relevant times, Defendant Rick Meredith
served as a senior engineer and project manager of
the HCCIP, and regularly controlled, inspected,
planned, altered, supervised, directed and
approved of the Big Sandy #3 tunnel expansion work
performed by general contractors JWGC and JWC and
their workers, including Larry Dale Hunt.
63.
At all relevant times, Defendant Rick Meredith had
the duty to manage, plan, direct, engineer,
supervise, inspect and approve of the Big Sandy #3
tunnel work in a manner which would protect Larry
Dale Hunt from loose unsupported ground while
Larry Dale Hunt was working under or adjacent to
the remaining shoulders and/or remnants of the Big
Sandy #3 tunnel roof arch and the duty to provide
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Larry Dale Hunt with a reasonably safe place to
work
64.
Defendant Rick Meredith breached his duties by
negligently managing, planning, directing,
engineering, supervising, inspecting and approving
of the Big Sandy #3 tunnel work in a manner which
failed to protect Larry Dale Hunt from loose
unsupported ground while Larry Dale Hunt was
working under or adjacent to the remaining
shoulders and/or remnants of the Big Sandy #3
tunnel roof arch in violation of approved safety
standards and/or industry standards, and by
failing to provide Larry Dale Hunt with a
reasonably safe place to work. Defendant Rick
Meredith also breached other common law and
statutory duties of care which proximately caused
the death of Larry Dale Hunt.
Complaint ¶¶ 62-64.
NSRC argues that Rick Meredith was fraudulently joined
because its contract with JWC, the general contractor on the
Project, made JWC “solely responsible for the means, methods,
sequences, procedures and techniques necessary to ensure a safe
project work site.”
p. 3.
NSRC’s Memorandum in Opposition to Remand at
According to NSRC, the Construction Management Agreement
it signed with STV, and by which Rick Meredith was employed as a
Construction Manager, made STV responsible for “monitoring
construction to ensure that what is being constructed is
consistent with the plans and specifications, that the required
materials are being used, and to assist in assessing the level of
completion of the work in determining the payment due to the
contractors.”
Id.
Because “no responsibility for project or
worker safety was assigned to STV, or included within its scope
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of work,” NSRC contends that STV and Meredith were not
responsible for Hunt’s safety.
Id. at 4.
On its face, the Complaint states a claim against Rick
Meredith.
NSRC, however, is asking this court to conclude that
Rick Meredith had no duty to Hunt based upon the contracts that
NSRC entered into with the various entities involved in the
Heartland Corridor Project.
In resolving this issue, a court
would be required to scrutinize the contracts at issue and weigh
them against the facts of this case to determine that plaintiffs
have no possibility of recovering against Mr. Meredith.
Ultimately, NSRC wants this court to pretry the claims lodged
against Meredith and it is relying on the contracts to provide a
defense to those claims.
However, “a jurisdictional inquiry is
not the appropriate stage of litigation to resolve these various
uncertain questions of law and fact.”
Hartley v. CSX Transp.,
Inc., 187 F.3d 422, 425 (4th Cir. 1999).
In Hartley, the United States Court of Appeals for the
Fourth Circuit concluded that the “district court erred by
delv[ing] too far into the merits in deciding a jurisdictional
question.”
Id.
In so doing, the Hartley court opined:
We cannot say, however, that Hartley has no chance of
establishing the facts necessary to support her tort
claims. . . . CSX contests these points and we are
unable to resolve them with the snap of a finger at
this state of the litigation. Indeed, these are
questions of fact that are ordinarily left to the state
court jury.
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In all events, a jurisdictional inquiry is not the
appropriate stage of litigation to resolve these
various uncertain questions of law and fact. Allowing
joinder of the public defendants is proper in this case
because courts should minimize threshold litigation
over jurisdiction. See Navarro Sav. Ass’n v. Lee, 446
U.S. 458, 464 n.13, 100 S.Ct. 1779, 64 L.Ed.2d 425
(1980) (“Jurisdiction should be as self-regulated as
breathing: . . . litigation over whether the case is in
the right court is essentially a waste of time and
resources.” (internal quotation marks omitted)).
Jurisdictional rules direct judicial traffic. They
function to steer litigation to the proper forum with a
minimum of preliminary fuss. The best way to advance
this objective is to accept the parties joined on the
face of the complaint unless joinder is clearly
improper. To permit extensive litigation of the merits
of a case while determining jurisdiction thwarts the
purpose of jurisdictional rules.
Id. at 425.
In conclusion, the court noted:
We cannot predict with certainty how a state court and
state jury would resolve the legal issues and weigh the
factual evidence in this case. Hartley’s claims may
not succeed ultimately, but ultimate success is not
required to defeat removal. Rather, there need be only
a slight possibility of a right to relief. Once the
court identifies this glimmer of hope for the
plaintiff, the jurisdictional inquiry ends.
Id. at 425-26 (internal citations omitted).
In the end, NSRC may be able to establish that Rick
Meredith owed no duty to Hunt.
However, this court cannot come
to such a conclusion without inappropriately delving into the
merits of the case.
Accordingly, the court finds that there is
at least “a glimmer of hope” that plaintiffs can recover against
Meredith and, therefore, NSRC has failed to carry its burden of
establishing the existence of diversity jurisdiction in this
case.
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IV.
Conclusion
Because NSRC has not carried the onerous burden of
demonstrating fraudulent joinder, the court concluded that it
lacked jurisdiction over this matter.
Accordingly, plaintiffs’
motion to remand was granted to the extent it sought remand.
Because the court concluded that the propriety of removal of this
action was subject to a fair dispute, see Landmark Corp. v.
Apogee Coal Co., 945 F. Supp. 932, 939-40 (S.D.W. Va.
1996)(Copenhaver, J.), the motion to remand was denied to the
extent it sought attorney fees and costs.
The Clerk is further directed to send a copy of this
Memorandum Opinion to all counsel of record, and to
forward a certified copy of the same to the Clerk of the Circuit
Court of McDowell County, West Virginia.
It is SO ORDERED this 10th day of May, 2011.
ENTER:
David A. Faber
Senior United States District Judge
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