Nationwide Agribusiness Insurance Company et al v. Meller Anlagenbau GMBH

Filing 21

ORDER signed by Judge Rudolph T. Randa on 3/28/2013 DENYING 15 MOTION to Remand to State Court. Telephonic Scheduling Conference set for 5/21/2013 at 10:30 AM before Judge Rudolph T. Randa, the Court will initiate the call. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY,
Plaintiff,
FRANSISCO ALCALA,
Involuntary Plaintiff,
-vs-

Case No. 12-C-1227

MELLER POULTRY EQUIPMENT, Inc., and
MELLER ANLAGENBAU GMBH,
Defendants.

DECISION AND ORDER

This action was removed on December 4, 2012 on the basis of diversity jurisdiction.
On February 1, 2013, the plaintiffs moved to remand, arguing that this action is
nonremovable because it arises under Wisconsin’s workmen’s compensation law. 28 U.S.C.
§ 1445(c). The motion to remand is untimely. 28 U.S.C. § 1447(c). Therefore, the alleged
defect is waived. Lunsford v. Cemex, Inc., 733 F. Supp. 2d 652, 655-56 (M.D.N.C. 2010)
(“Courts have uniformly held . . . that an improperly removed case that arises under a state’s
workers’ compensation law is a procedural defect in removal that is waived unless asserted
within thirty days of removal”). In any event, the plaintiffs’ claims in this action are tort
claims for negligence and product liability that do not arise under Wisconsin’s workmen’s
compensation laws. Plaintiffs cite Wis. Stat. § 102.29, which provides that an employee who

brings a worker’s compensation claim retains the right to bring a tort action against third
parties. The meaning of § 102.29 will “play no role in determining whether the plaintiff will
prevail.” Houston v. Newark Boxboard Co., 597 F. Supp. 989, 991 (E.D. Wis. 1984); Ill. ex
rel. Sec’y. of Dep’t of Transp. v. DeLong’s, Inc., 57 F. Supp. 2d 639, 641 (C.D. Ill. 1999)
(“negligence . . . lacks the no-fault element of Illinois’ Workers’ Compensation Act and may
be adjudicated without any inquiry or interpretation of the Act”) (citing Spearman v. Exxon
Coal, USA, Inc., 16 F.3d 722 (7th Cir. 1994)).
Plaintiffs’ motion to remand [ECF No. 15] is DENIED. The Court will conduct a
telephonic scheduling conference on May 21, 2013 at 10:30 a.m. (CST). The parties should
refer to the Court’s previous notice, ECF No. 14, for details on how to proceed.
Dated at Milwaukee, Wisconsin, this 28th day of March, 2013.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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