Geyer v. United States Van Lines et al
Filing
46
MEMORANDUM OPINION AND ORDER denying 40 MOTION to Withdraw; denying 10 MOTION to Dismiss; granting 12 MOTION for Leave to File Amended Complaint; denying 14 MOTION for Extension of Time to Respond to Motion to Dismiss; denying as moot [ 15] & 19 MOTIONS to Remand to Circuit Court; denying as moot 21 MOTION to Amend; denying s moot 22 MOTION for Default Judgment Pursuant to Rule 55(a), FRCivP; denying 23 MOTION for Default Judgment Pursuant to Rule 55(a), FRCivP; granting plaintiff's 36 MOTION to Surreply regarding the second motion to remand; Clerk is directed to enter the "Notice of First Amended Complaint" as the first amended complaint, and the "Notice of Answer to the Plaintiff's First Amended Complaint with Affirmative Defenses and Cross-Claim as the first amended answer and cross-claim. Signed by Judge John T. Copenhaver, Jr. on 1/4/2013. (cc: attys; any unrepresented party) (tmr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARTIN GEYER,
d/b/a Wellworth Fastener Products,
Plaintiff,
v.
Civil Action No. 2:12-04678
UNITED STATES VAN LINES, and
ALL COAST TRANSPORTERS, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are numerous motions filed by both
parties.
I.
Factual and Procedural Background
The plaintiff, Martin Geyer, engaged defendant All Coast
Transporters to convey personal and professional effects from
Columbus, Ohio, to Rincon, Georgia.
14.
Compl. ¶ 4; Notice of Removal
The bill of lading indicates that the plaintiff surrendered his
property to defendant All Coast Transporters on May 13, 2010.
of Removal 14.
Notice
At an undetermined time, defendant United States Van
Lines obtained possession of the cargo.
See Compl. ¶ 7.
On May 14,
2010, the United States Van Lines truck containing the plaintiff’s
belongings caught fire while travelling through Jackson County, West
Virginia.
Id.
Presumably, the property within was either damaged
or destroyed.
On May 1, 2012, the plaintiff filed suit in the Circuit
Court of Jackson County, West Virginia.
Notice of Removal 13.
The
complaint asserts claims for breach of contract and negligence under
West Virginia law.
Compl. ¶¶ 6-16.
On August 24, 2012, defendant All Coast Transporters
removed.1
Removal of civil actions brought in state courts is
permitted only if federal district courts are vested with original
jurisdiction over the relevant subject matter.
28 U.S.C. § 1441(a).
The district courts “have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States.”
Id. § 1331.
In exceptional circumstances, causes of
action created by state law are deemed to arise under federal law,
thus conferring original jurisdiction upon federal district courts.
See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).
State-law claims that are “completely preempted” by
certain federal statutes, for example, allow federal courts to invoke
original jurisdiction.2
Id.
The Carmack Amendment to the
1
Defendant United States Van Lines has not yet appeared, prompting
an entry of default by the Clerk of the U.S. District Court for the
Southern District of West Virginia on October 12, 2012. See Entry
of Default by Clerk.
2
Complete preemption, a jurisdictional doctrine that “converts a
well-pleaded state law claim into an inherently federal claim,”
2
Interstate Commerce Act of 1887 provides “the exclusive cause of
action for loss or damages to goods arising from the interstate
transportation of those goods by a common carrier,” completely
preempting alternate claims.
Hoskins v. Bekins Van Lines, 343 F.3d
769, 778 (5th Cir. 2003) (finding breach-of-contract, negligence, and
deceptive-trade-practices claims completely preempted).
Therefore, causes of action grounded in state law, but predicated upon
events generating carrier liability under the Carmack Amendment,
arise under federal law.
Hall v. N. Am. Van Lines, Inc., 476 F.3d
683, 687-89 (9th Cir. 2007); Hoskins, 343 F.3d at 778 (quoting
Beneficial, 539 U.S. at 11).
Accordingly, 28 U.S.C. § 1331 vests
federal district courts with original jurisdiction over state-law
claims against carriers alleging property loss or damage, rendering
removal of those claims appropriate.
See 28 U.S.C. § 1441(a).
The
claim need only exceed $10,000, excluding interest and costs.
Id.
§ 1445(b).
Chapter 147 of the Carmack Amendment governs, in part, the
liability of various classes of carriers under bills of lading.
49 U.S.C. § 14706.
See
Subject classes include motor carriers
transporting property across state boundaries.
Id. §§ 13501(1)(A),
differs from the affirmative defense of preemption. Hall v. N. Am.
Van Lines, Inc., 476 F.3d 683, 689 n.8 (9th Cir. 2007). Few federal
statutes, even among those that provide the basis for successful
preemption defenses, “have the requisite extraordinary preemptive
force to support complete preemption.” See Sullivan v. Am. Airlines,
Inc., 424 F.3d 267, 272-73 (2d Cir. 2005).
3
14706(a)(1).
In this case, the plaintiff does not dispute that both
defendants operate as “interstate carrier[s] for hire,” and were
engaged to convey the plaintiff’s property from Ohio to Georgia, as
evidenced by the bill of lading.
Notice of Removal 1, 14.
The
plaintiff’s breach-of-contract and negligence claims, seeking
damages of $1.5 million from the defendant carriers for lost or
destroyed property, thus fall within the scope of the Carmack
Amendment.
Given that the amount in controversy exceeds $10,000,
this court may properly exercise jurisdiction over the removed
claims, pursuant to 28 U.S.C. § 1331, § 1441(a), and § 1445(b).3
The plaintiff has filed two separate motions to remand,
dated October 9, 2012 (ECF No. 15), and October 12, 2012 (ECF No. 19),
respectively.4
The plaintiff also moved for the entry of default
3
Generally, the defendant must file notice of removal within thirty
days of being served with the initial pleading. 28 U.S.C. §
1446(b)(1), (b)(2)(B). If the initial pleading states a case that
does not qualify for removal, however, the defendant may still remove
within 30 days of receiving written documentation indicating that
removal would be appropriate. Id. § 1446(b)(3). In this case,
defendant All Coast Transporters first learned that the amount in
controversy exceeded $10,000, as required by 28 U.S.C. § 1445(b), on
July 26, 2012. Notice of Removal 2. Notice of removal was then
timely filed with this court on August 24, 2012.
4
The plaintiff also filed a “supplemental response memorandum” (ECF
No. 35) and a “notice of filing” (ECF No. 36) on October 18, 2012.
The substance of the “supplemental response memorandum” addresses a
pending motion to amend the complaint, despite being designated as
a further response to the motion to remand. See Pl.’s Supplemental
Resp. Mem. 1, ECF No. 35. The “notice of filing,” however, does
contain exhibits relevant to removal. See generally Pl.’s Notice of
Filing. Thus, the court construes the additional notice of filing
4
against defendant All Coast Transporters on October 12, 2012 (ECF No.
23).
Finally, the plaintiff and defendant All Coast Transporters
have filed several miscellaneous motions, also dealt with below.
II.
A.
Analysis
First Motion to Remand (ECF No. 15)
The plaintiff’s first motion to remand is premised on the
removing defendant’s failure to file notice with the Circuit Court
of Jackson County, West Virginia, as required by 28 U.S.C. § 1446(d).
Pl.’s Objection to Notice of Removal 1, ECF No. 15.
The plaintiff
acknowledges, however, that defendant All Coast Transporters
subsequently provided the state court with notice of removal on
October 10, 2012.
See Pl.’s Objection to Notice of Removal and Pl.’s
Mot. to Remand (“Pl.’s Second Mot.”) at 1, ECF No. 19.
Thus, the
plaintiff’s first motion to remand (ECF No. 15) is denied as moot.
B.
Second Motion to Remand (ECF No. 19)
On October 12, 2012, after the requisite notice was
submitted to the Circuit Court of Jackson County, the plaintiff filed
a second motion to remand.
The plaintiff contends that defendant All
Coast Transporters failed to file notice of removal in state court
as a motion for leave to surreply, pursuant to Local Rule 7.1(a)(7),
regarding the second motion to remand (ECF No. 19). Absent an
objection by either defendant, the court grants the motion and will
consider any relevant material presented in the surreply documents.
5
promptly, as mandated by 28 U.S.C. § 1446(d).
Pl.’s Second Mot. 1.
The plaintiff also asserts that valid removal requires the consent
of all properly served defendants, which was not obtained.
Pl.’s
Reply to Def. All Coast Transporters, Inc.’s Resp. to Pl.’s Objection
to Notice of Removal and Pl.’s Mot. to Remand (“Pl.’s Reply”) at 2.
Defendant All Coast Transporters responds that the plaintiff’s
objections are barred by 28 U.S.C. § 1447(c).
Def. All Coast
Transporters, Inc.’s Resp. to Pl.’s Objection to Notice of Removal
and Pl.’s Mot. to Remand (“Def.’s Resp.”) at 2.
28 U.S.C. § 1447(c) requires that motions to remand “on the
basis of any defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the notice of removal
under section 1446(a).”
28 U.S.C. § 1447(c).
Failure to obtain
unanimous consent from all necessary defendants is a procedural
defect that does not implicate subject-matter jurisdiction.
Doe v.
GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003); Balazik v. Cnty. of
Dauphin, 44 F.3d 209, 213 (3d Cir. 2002); Johnson v. Helmerich & Payne,
Inc., 892 F.2d 422, 423 (5th Cir. 1990) (citing Johnson v. Odeco Oil
& Gas Co., 864 F.2d 40, 42 (5th Cir. 1989); Harris v. Edward Hyman
Co., 664 F.2d 943, 945 (5th Cir. 1981)).
Similarly, failure to
promptly provide the state court notice of removal pursuant to 28
U.S.C. § 1446(d) is also deemed a procedural defect.
See Peterson
v. BMI Refractories, 124 F.3d 1386, 1395 (11th Cir. 1997) (holding
6
that even the complete “failure of notice to the state court is a
procedural defect that does not defeat federal jurisdiction”); see
also Koerner v. Aetna U.S. Healthcare, Inc., 92 F. App’x 394, 396 (9th
Cir. 2003) (citing Fristoe v. Reynolds Metals Co., 615 F.2d 1209,
1212-13 (9th Cir. 1980)); Rashid v. Schenck Constr. Co., 843 F. Supp.
1081, 1085-86 (S.D. W. Va. 1993).
Therefore, potential objections
to removal based on lack of unanimous consent among defendants or
imperfect compliance with § 1446(d) are deemed waived if not raised
within 30 days of the notice of removal being filed in federal court.
See 28 U.S.C. §§ 1446(a), 1447(c).
In this case, defendant All Coast Transporters filed a
notice of removal in the U.S. District Court for the Southern District
of West Virginia on August 24, 2012.
The plaintiff’s second motion
to remand, asserting defective compliance with § 1446(d), and the
plaintiff’s subsequent reply brief, noting that defendant United
States Van Lines had not consented to removal, were not filed until
October 12, 2012, and October 17, 2012, respectively.
Accordingly,
because the plaintiff failed to raise his procedural objections
within the 30-day period established by 28 U.S.C. § 1447(c), the
plaintiff’s motion to remand is denied.
In conclusion, this court properly assumed jurisdiction as
of August 24, 2012.
See Aqualon Co. v. MAC Equip., Inc., 149 F.3d
262, 264 (4th Cir. 1998) (citing Berberian v. Gibney, 514 F.2d 790,
7
792 (1st Cir. 1975); Burroughs v. Palumbo, 871 F. Supp. 870, 872 (E.D.
Va. 1994)) (stating that “[f]ederal jurisdiction attached as soon as
. . . a Notice of Removal [was filed] in Federal Court”).
The Circuit
Court of Jackson County, West Virginia, however, maintained
concurrent jurisdiction until October 10, 2012.
See South Carolina
v. Moore, 447 F.2d 1067, 1073 (4th Cir. 1971) (noting that state
tribunals are not divested of jurisdiction under § 1446 until the
proper documents are submitted to both the state and federal courts);
accord Berberian, 514 F.2d at 792-93.
Thus, the court must address
any pending state-court motions filed during the intervening period
of joint jurisdiction, see Holmes v. AC & S, Inc., 388 F. Supp. 2d
663, 667 (E.D. Va. 2004) (citing Burroughs v. Palumbo, 871 F. Supp.
870, 872 (E.D. Va. 1994)) (“Once the notice of removal has been
effectively filed in both courts, the federal court takes the case
in the posture in which it departed the state court, treating
everything done in the state court as if it had been done in federal
court.”), as well as motions filed in federal court after August 24,
2012.
C.
Entry of Default Against Defendant All Coast Transporters
On October 9, 2012, the plaintiff moved the Circuit Court
of Jackson County, West Virginia to enter default against defendant
8
All Coast Transporters.5
See Pl.’s Mot. for an Entry of Default
Against Def. All Coast Transporters, Inc. (“Pl.’s Mot. for Default”)
Ex. 3, at 1.
The plaintiff has yet to provide a copy of the motion
filed in state court.
He has, however, filed a duplicate motion for
entry of default against defendant All Coast Transporters with this
court.
See Pl.’s Mot. for Default, ECF No. 23; Mot. to Withdraw Pl.’s
Mot. for Default ¶ 10, ECF No. 40.
In the interests of judicial
efficiency, the court will resolve the two motions jointly, presuming
that the federal motion essentially mirrors the state motion.6
The plaintiff requests that the Clerk of the Court enter
default against defendant All Coast Transporters, pursuant to Federal
Rule of Civil Procedure 55(a).
See Pl.’s Mot. for Default 1.
The
plaintiff alleges that Defendant All Coast Transporters was properly
5
The plaintiff notes that the “Honorable David Nibert of the Circuit
Court of Jackson County, West Virginia, signed an order granting
Plaintiff’s Motion for Default Judgment against All Coast on October
10, 2012, prior to that court being provided a copy of All Coast’s
Notice of Removal.” Pl.’s Reply 4. Orders granting default
judgment, however, are not effective until entered onto the docket.
W. Va. R. Civ. P. 55(e), 58; see State v. Mason, 205 S.E.2d 819, 823
(W. Va. 1974). Judge Nibert’s order was entered on October 12, 2012,
see Pl.’s Reply Ex. B, at 2, two days after the Jackson County Circuit
Court was divested of jurisdiction. Therefore, the motion remains
unresolved.
6
Accordingly, the plaintiff’s motion to withdraw his request for
entry of default in federal court (ECF No. 40) as repetitive of the
pending state-court motion is denied. See Mot. to Withdraw Pl.’s
Mot. for Default ¶ 10, ECF No. 40; cf. Johnstown Feed & Seed, Inc.
v. Cont’l W. Ins. Co., No. 07-cv-00290-MSK-CBS, 2007 WL 1346595, at
*3 (D. Colo. May 8, 2007) (requiring the parties to refile in federal
court any motions pending in state court at the time of removal).
9
served on May 7, 2012, and failed to respond within the timeframe
established by the Federal Rules of Civil Procedure.7
Id. at 1-3.
In response, defendant All Coast Transporters argues that it has
responded to the complaint by filing a notice of removal, an answer,
and a motion to dismiss.8
Def. All Coast Transporters, Inc.’s Resp.
to Pl.’s Mot. for Default (“Def.’s Resp. to Mot. for Default”) 1-3.
Federal Rule of Civil Procedure 55(a) requires the clerk
to enter default should a party fail “to plead or otherwise defend”
against requested affirmative relief.
Fed. R. Civ. P. 55(a).
court, however, may grant additional time for action.
The
10A Charles
A. Wright et al., Federal Practice and Procedure § 2682 (3d ed. 1995).
Moreover, “if [the] defendant appears and indicates a desire to
contest the action, the court can . . . refuse to enter a default.”
Id.
Thus, an untimely defensive action does not necessitate entry
of default, particularly in the absence of prejudice to the movant.
See Dow v. Jones, 232 F. Supp. 2d 491, 494-95 (D. Md. 2002) (denying
7
The plaintiff references the West Virginia Rules of Civil
Procedure. See generally Pl.’s Mot. for Default. The Federal Rules
of Civil Procedure, however, control all properly removed civil
actions. Fed. R. Civ. P. 81(c)(1). The court will thus construe the
plaintiff’s arguments as referencing the appropriate federal rule.
8
The defendant also asserts that all filings were timely, as proper
service did not occur until July 25, 2012. See Def.’s Resp. to Mot.
for Default 1-2. The defendant, however, fails to identify any
defect rendering the purported service on May 7, 2012 invalid and
offers nothing beyond a brief, unsubstantiated assertion to establish
July 25, 2012 as the actual date on which proper service was
accomplished. See id.
10
entry of default despite the defendant’s failure to take defensive
action within the period prescribed by the Federal Rules of Civil
Procedure 12(a), given the lack of prejudice to the plaintiff and the
“Fourth Circuit’s strong preference that cases be decided on their
merits”); see also Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir.
2000) (quoting Mason & Hanger-Silas Mason Co. v. Metal Trades Council,
726 F.2d 166, 168 (5th Cir. 1984)) (stating that the mere failure to
comply with a “procedural time requirement” should not result in
default judgment).9
In this case, despite an initial delay in responding to the
complaint, defendant All Coast Transporters has repeatedly
demonstrated its intent to defend.
Prior to the plaintiff requesting
entry of default, the defendant filed a notice of removal, an answer,
and a motion to dismiss.
See Fed. R. Civ. P. 55(a) advisory
committee’s note (confirming that acts demonstrating intent to defend
9
Other courts, albeit in unpublished decisions, have similarly
concluded that violations of the timing provisions of Rule 12 do not
require the entry of default, assuming a displayed intent to defend
and no resulting prejudice. See, e.g., United States v. Edwards, No.
2:10-cv-098-EJL-CWD, 2011 WL 2441682, at *2 (D. Idaho June 14, 2011)
(citing Dow, 232 F. Supp. 2d at 494-95); Surplus Source Grp., LLC v.
Mid Am. Engine, Inc., No. 4:08-cv-049, 2008 WL 2704867, at *1-2 (E.D.
Tex. July 7, 2008). At least one court has concluded that the current
iteration of Rule 55(a) completely precludes courts from entering
default once any action indicating an intent to defend occurs, even
if untimely. In re Clark, No. C09-1373RAJ, 2010 WL 2639842, at *3
(W.D. Wash. June 28, 2010) (noting that the pleading or defensive
action necessary to prevent an entry of default no longer need occur
as “provided by these rules,” following the 2007 amendments to Rule
55(a)).
11
need not be “connected to any particular rule”).
Furthermore, none
of the documents submitted to the court suggest that the plaintiff
would be prejudiced should entry of default be refused.
Accordingly,
the plaintiff’s motion for entry of default against defendant All
Coast Transporters, Inc. (ECF No. 23) is denied.
D.
Entry of Default Against Defendant United States Van Lines
On October 12, 2012, the plaintiff also moved for entry of
default against defendant United States Van Lines (ECF No. 22).
The
Clerk of the Court, however, had already entered default against the
unresponsive defendant in response to an earlier motion by the
plaintiff.
Having determined that this court had proper
jurisdiction as of August 24, 2012, the plaintiff’s second motion for
entry of default (ECF No. 22) is denied as moot.
E.
Motions to Amend the Complaint
The plaintiff has also filed duplicate motions seeking to
amend his complaint, on October 3, 2012 (ECF No. 12) and October 12,
2012 (ECF No. 21) respectively.
The proposed amendments assert
federal claims under the Carmack Amendment and exclude the state-law
claims for breach of contract and negligence.
Defendant All Coast
Transporters has indicated to the court, in writing, that it does not
oppose the motion.
Consequently, pursuant to Federal Rule of Civil
Procedure 15(a)(2), the court grants the plaintiff’s initial motion
12
to amend (ECF No. 12) and denies the duplicate motion to amend (ECF
No. 21) as moot.
The clerk is directed to enter the “Notice of First Amended
Complaint” (ECF No. 30) as the first amended complaint.
The clerk
is further directed to enter the “Notice of Answer to Plaintiff’s
First Amended Complaint with Affirmative Defenses and Cross-Claim”
(ECF No. 39) as the first amended answer and cross-claim.
F.
Motion to Dismiss
Pending as well is defendant All Coast Transporters’s
motion to dismiss the original complaint (ECF No. 10), filed on
October 1, 2012.
That motion, predicated upon the assumption that
the plaintiff’s state-law claims were preempted by the Carmack
Amendment, has been mooted by subsequent amendments to the complaint.
See supra Part II.E.
G.
Therefore, the motion (ECF No. 10) is denied.
Motion for Extension of Time to Respond to Motion to Dismiss
Finally, the plaintiff’s motion for an extension of time
to respond to the now moot motion to dismiss (ECF No. 14) is denied
as moot.
13
III.
Conclusion
In summary, the plaintiff’s initial motion to remand (ECF
No. 15) is denied as moot.
The plaintiff’s “notice of filing” (ECF
No. 36), construed by the court as a motion to surreply regarding the
second motion to remand, is granted.
to remand (ECF No. 19) is denied.
The plaintiff’s second motion
The plaintiff’s motion to withdraw
his motion for entry of default against defendant All Coast
Transporters, Inc. (ECF No. 40) is denied, as is the motion for entry
of default itself (ECF No. 23).
The plaintiff’s second motion for
entry of default against defendant United States Van Lines (ECF No.
22) is denied as moot, the Clerk of the Court having previously entered
default against that same defendant on October 12, 2012.
Furthermore, the plaintiff’s first motion to amend his complaint (ECF
No. 12) is granted, and the second motion to amend (ECF No. 21) denied
as moot.
The clerk is directed to enter the “Notice of First Amended
Complaint” (ECF No. 30) as the first amended complaint, and the
“Notice of Answer to the Plaintiff’s First Amended Complaint with
Affirmative Defenses and Cross-Claim” (ECF No. 39) as the first
amended answer and cross-claim.
Finally, the defendant’s motion to
dismiss (ECF No. 10) and the plaintiff’s motion for extension of time
to respond to the motion to dismiss (ECF No. 14) are denied as moot.
14
The Clerk is requested to transmit this opinion and order
to all counsel of record and to any unrepresented parties.
DATED:
January 4, 2013
John T. Copenhaver, Jr.
United States District Judge
15
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