Crigger v. Parsley Enterprises Inc., et al.
Filing
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MEMORANDUM OPINION AND ORDER: it is ORDERED that this action is REMANDED to the Circuit Court of McDowell County for all further proceedings. Signed by Judge David A. Faber on 2/27/2015. (cc: counsel of record and certified copy to clerk of court for the Circuit Court of McDowell County) (mjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JOEY CRIGGER,
Plaintiff,
v.
Civil Action No: 1:14-30971
PARSLEY ENTERPRISES, INC. et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the court pursuant to a sua sponte
review of the court’s subject matter jurisdiction.
Having
conducted such a review, the court concludes that, as complete
diversity does not exist in this case, the court does not
possess subject matter jurisdiction.
The case is REMANDED to
the Circuit Court of McDowell County.
I.
Background
This action arises out of an accident that occurred on
October 18, 2012.
Plaintiff, an employee of defendant Parsley
Enterprises (hereinafter “Parsley”), was injured near the end of
his shift while working at a mine owned by defendant Alpha
Natural Resources Services, LLC (hereinafter “Alpha Natural”).
In his complaint, plaintiff alleges that he was injured when the
transport he was riding on “came into a depressed area causing
him to be thrown upwards.”
(Doc. No. 1 at Exh. 1).
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Plaintiff
landed on his seat “with a jarring impact,” leading to numerous
injuries.
Id.
On October 20, 2014, plaintiff filed suit against
defendants in the Circuit Court of McDowell County, West
Virginia.
On December 29, 2014, defendant Alpha Natural removed
the case to this court, invoking the court’s diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).
However,
plaintiff is a citizen of West Virginia, defendant Alpha Natural
is a citizen of Delaware and Virginia, 1 and defendant Parsley is
a citizen of West Virginia.
Despite the lack of complete diversity, defendant Alpha
Natural asserts that this court has jurisdiction to adjudicate
the instant matter.
In support of their position, defendant
Alpha Natural argues that plaintiff fraudulently joined
defendant Parsley to defeat diversity jurisdiction, and urges
the court to disregard defendant Parsley’s West Virginia
1
For purposes of diversity jurisdiction, a limited liability
company is assigned the citizenship of its members. Gen. Tech.
Applications, Inc. v. Exro Ltda, 388 F.3d 114, 120 (4th Cir.
2004). Alpha Natural is a Delaware limited liability company
with two members: Alpha Natural Resources, LLC and AMFIRE
Holdings, LLC. (Doc. No. 1 at ¶ 5). AMFIRE Holdings, LLC has
one member: AMFIRE, LLC, a Delaware limited liability company.
Id. In turn, AMFIRE, LLC has one member, which is Maxxum Carbon
Resources, LLC, a Delaware limited liability company. Id. The
sole member of Maxxum Carbon Resources, LLC is Alpha Natural
Resources, LLC, also a Delaware limited liability company. Id.
The sole member of Alpha Natural Resources, LLC is Alpha Natural
Resources, Inc., a Delaware corporation with its principal place
of business in Bristol, Virginia. Id.
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citizenship and assume jurisdiction.
Soon after defendant Alpha
Natural removed the case, defendant Parsley moved the court to
dismiss plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
(Doc. No. 5).
Initially, the court notes that plaintiff has not moved the
court to remand the case to state court.
Nevertheless, the
court must determine that it can exercise subject matter
jurisdiction, even if the parties do not raise the issue.
Sucampo Pharms. Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548
(4th Cir. 2006); Brickwood Contractors, Inc. v. Datanet Eng’g
Inc., 369 F.3d 385, 390 (4th Cir. 2004) (en banc); see also
Gibson v. Shentel Cable Co. et al., Civil Action No. 2:11-00229,
2011 WL 3423336, at *1 (S.D.W. Va. Aug. 5, 2011).
Furthermore,
defendant Parsley’s consent to removal, (Doc. No. 1 at Exh. A),
does not end the inquiry as a party may not waive subject matter
jurisdiction.
Thomas v. Bd. of Trs. of Ohio State Univ., 195
U.S. 207, 211 (1904) (“It is equally well established that when
jurisdiction depends upon diverse citizenship the absence of
sufficient averments or of facts in the record showing such
required diversity of citizenship is fatal and cannot be
overlooked by the court, even if the parties fail to call
attention to the defect, or consent that it may be waived.”).
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II.
Standard of Review
A defendant may remove an action from state court to
federal court only if the case could have been brought
originally in federal court.
Yarnevic v. Brink’s, Inc., 102
F.3d 753, 754 (4th Cir. 1996) (citing 28 U.S.C. § 1441).
A
federal court has original jurisdiction over actions where the
amount in controversy exceeds $75,000, 2 exclusive of interests
and costs, and the controversy is between citizens of different
states.
28 U.S.C. § 1332(a)(1).
requires complete diversity:
Diversity of citizenship
each plaintiff must be a citizen
of a different state than each defendant.
Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996).
The doctrine of fraudulent joinder, however, 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.”
461 (4th Cir. 1999).
Mayes v. Rapoport, 198 F.3d 457,
Our court of appeals places a heavy burden
on those defendants who claim fraudulent joinder:
In order to establish that a nondiverse defendant has
been fraudulently joined, the removing party must
establish either: [t]hat there is no possibility that
2
In this case, the amount in controversy requirement for
diversity jurisdiction appears to be satisfied. Plaintiff’s
complaint seeks compensatory and punitive damages, as well as
attorney’s fees and other relief. If a jury rendered a verdict
in plaintiff’s favor, its award could exceed $75,000.
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the plaintiff would be able to establish a cause of
action against the in-state defendant in state court;
or [t]hat there has been outright fraud in the
plaintiff’s pleading of jurisdictional facts.
Id. at 464 (emphasis in original) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
To argue
fraudulent joinder successfully, a defendant must demonstrate
“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.”
Mayes, 198 F.3d at 464 (quoting
Marshall, 6 F.3d at 232–33) (internal quotation marks omitted).
This standard “is even more favorable to the plaintiff than the
standard for ruling on a motion to dismiss.”
Harley v. CSX
Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999).
And fraudulent joinder claims must survive a black-andwhite analysis, with any shades of gray resolved in favor of
remand.
Id. at 425.
A plaintiff need have only a “glimmer of
hope” in order for the case to be remanded to state court:
In all events, a jurisdictional inquiry is not the
appropriate stage of litigation to resolve . . .
various uncertain questions of law and fact. . . .
Jurisdictional rules direct jurisdictional 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.
* * * *
[Plaintiff’s] claims may not succeed ultimately, but
ultimate success is not required. . . . Rather, there
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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).
As defendants do
not allege fraud in the pleadings, the only question before the
court is whether plaintiff has any possibility of recovery
against defendant Parsley in state court.
III. Discussion
In his complaint, plaintiff alleges personal injury
resulting from an accident that occurred on the job.
In most
cases, a West Virginia plaintiff cannot recover from his or her
employer for such injuries.
West Virginia’s Worker’s
Compensation statutory scheme grants immunity to employers for
injuries or illnesses suffered on the job.
W. Va. Code § 23-2-6
(2014).
However, this immunity is not absolute.
Such immunity “may
be lost only if the employer or person against whom liability is
asserted acted with ‘deliberate intention.’”
4-2(d)(2).
W. Va. Code § 23-
A plaintiff may establish a cause of action for
deliberate intent through either of the subsections of § 23-4-2(d)(2).
Coleman Est. v. R.M. Logging, Inc., 700 S.E.2d 168, 172
(W. Va. 2010)(citing Syl. pt. 1, Mayles v. Shoney’s, Inc., 405
S.E.2d 15 (W. Va. 1990)).
West Virginia Code § 23-4-2(d)(2)(i)
requires proof that “the employer or person against whom
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liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee.”
From the face of plaintiff’s
complaint, he does not appear to raise such a claim.
Instead, plaintiff’s claim appears to fall within the
second statutory option for deliberate intent.
Under West
Virginia Code § 23-4-2(d)(2)(ii), a plaintiff may establish a
prima facie case for deliberate intent by proving five elements:
(A)
(B)
(C)
(D)
(E)
That an unsafe working condition that presented a
high degree of risk of serious injury or death
existed at the workplace;
That the employer, prior to the injury, actually
knew of the risk;
That the unsafe working condition or hazard was a
federal or state safety violation;
That the employer intentionally subjected the
plaintiff to the unsafe working condition in
spite of the knowledge of the danger; and
That the plaintiff suffered a serious injury as a
result of the unsafe working condition.
(2014); see also Coleman, 700 S.E.2d at syl. pt. 6.
Plaintiff’s
complaint contains the following allegations:
2. The Plaintiff, Joey Crigger, was employed by
Parsley Enterprises, Inc. and placed at a mine . . .
owned and operated by Alpha Natural Resources
Services, LLC. On October 18, 2012, Plaintiff was
injured while in the course of his employment when he
was riding upon a transport out of the mine at the end
of his shift.
* * * *
9. Plaintiff avers that the Defendant deliberately
intended to cause his injuries by created [sic] a
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knowing unsafe work environment and concealing the
same from OSHA inspectors.
10. The condition of the mines property [sic] created
an unsafe work environment that presented a high
degree of risk and the strong probability of injury.
11. Defendant knowingly created an unsafe working
condition by improperly maintaining the routes of
ingress and egress of entry of the mine shaft, thereby
exposing the Plaintiff to said unsafe working
condition that ultimately led to his injury.
12. The Plaintiff, Joey Crigger, has suffered
monetary loss, property loss, emotional distress,
mental anguish, has incurred numerous injuries and
medical expenses, and has suffered a loss of income
due to the conduct of the Defendant Alpha Natural
Resources, LLC and Parsley Enterprises, Inc.
13. The Defendant, Parsley Enterprises, Inc. further
created an unsafe work environment by placing the
Plaintiff into this Alpha Natural Resources Services,
LLC mine after which they knew or should have known of
the unsafe work conditions of that property.
(Compl. ¶¶ 2, 9–13).
Resolving all issues of law and fact in plaintiff’s favor,
the complaint details a claim of deliberate intent against
defendant Parsley where:
(1) an unsafe working condition
existed; (2) Parsley knew of the risk; (3) the conditions were a
federal or state safety violation; (4) Parsley intentionally
subject plaintiff to those conditions despite its knowledge of
the conditions; and (5) plaintiff suffered a serious injury as a
result.
This is sufficient to provide a glimmer of hope that
plaintiff could recover against defendant Parsley in state
court.
And, having identified this glimmer of hope, the court’s
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jurisdictional inquiry ends in favor of remand to the state
court.
Although plaintiff’s allegations relay little factual
content and, therefore, may have been susceptible to dismissal
under Rule 12(b)(6), the court reiterates that the fraudulent
joinder standard “is even more favorable to the plaintiff than
the standard for ruling on a motion to dismiss.” 3
Hartley, 187
F.3d at 424; see also Gibson, Civil Action No. 2:11-00229, 2011
WL 3423336, at *5 (S.D.W. Va. Aug. 5, 2011).
Therefore, as the
court cannot conclude that defendants were fraudulently joined,
it cannot overlook the lack of complete diversity among the
parties, and must remand the case to state court.
IV.
Conclusion
For the foregoing reasons, the court concludes that it
lacks subject matter jurisdiction.
Accordingly, it is ORDERED
that this action be remanded for all further proceedings to the
Circuit Court for McDowell County.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and a certified copy to
the clerk of court for the Circuit Court of McDowell County.
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The court further notes that the Fourth Circuit published the
Hartley decision in 1999, before the advent of the heightened
pleading requirements set forth in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
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IT IS SO ORDERED this 27th day of February, 2015.
Enter:
David A. Faber
Senior United States District Judge
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