Opinion
Case No.: 6:03-cv-127-Orl-22JGG
May 25, 2003
REPORT AND RECOMMENDATION
TO THE UNITED STATES DISTRICT COURT
This cause came on for oral argument on May 8, 2003 [Docket No. 41] on the following motion:
MOTION: PLAINTIFF'S MOTION TO REMAND (Doc. No. 10)
FILED: February 24, 2003 THEREON it is RECOMMENDED that the motion be GRANTED.
I. THE ISSUES
No Van Nguyen ["Nguyen"], the decedent, worked at Waste Management, Inc.'s Recycle America sorting cardboard for recycling. Defendant William Doug Fravel was Nguyen's supervisor. On September 27, 2000, Fravel was operating a Bobcat Model 863 Skidsteer Loader when he backed into Nguyen and killed him. The personal representative of Nguyen's estate brought this action in the Ninth Judicial Circuit for Orange County, Florida. The complaint alleged solely state-law claims against defendant Fravel (gross negligence); defendant Waste Management, Inc (intentional negligence); defendant Clark Equipment Company (strict liability and product defects); and defendant Bobcat of Orlando, Inc. (strict liability and breach of the implied warranties of fitness and merchantability). Docket No. 4.
Under Fla. Stat. § 768.72, "gross negligence" means that "the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct."
On January 21, 2003, defendant Clark Equipment Company filed a notice of removal of the case to this court, alleging complete diversity of citizenship. Docket Nos. 1, 2. In its petition for removal, however, Clark Equipment Company conceded that defendant Fravel — like Nguyen's personal representative — was a citizen of Florida. Docket No. 2 at 2. Clark Equipment Company nevertheless contended that Travel's citizenship does not defeat diversity because Fravel had been "fraudulently joined" given that the Florida's Workers Compensation Act, Fla. Stat. § 440.11 bars suit against a co-worker. Docket No. 2 at 2. None of the other four defendants joined in the removal. After removal, defendant Bobcat of Orlando, Inc. filed motion with this court on February 14, 2003 that states that Bobcat "consents to the removal of this cause," and then seeks dismissal or summary judgment. Docket No. 9.
On February 24, 2003, Nguyen's personal representative moved to remand the case to state court pursuant to 28 U.S.C. § 1447 (c) on the grounds that there was no "fraudulent joinder," and that this court lacks subject matter jurisdiction. Docket No. 10. Clark Equipment Company filed a memorandum of law opposing remand. Docket No. 15. The remaining defendants (Waste Management, Inc.; Bobcat or Orlando, Inc.; Fravel) filed no memorandum opposing remand. See Local Rules 3.01(b), 4.02(c). Having heard oral argument on the motion on May 8, 2003, it is ripe for decision. Docket No. 41.
II. THE LAW OF REMOVAL A. Removal In General
A civil case filed in state court may be removed to federal court by the defendants if the district court in the district in which the action is pending has original jurisdiction over the action, 28 U.S.C. § 1441 (a). However, regard for the independence of state courts requires that the district court construe this statute strictly against the party seeking removal. See Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1045 (2d Cir. 1991) ("By narrowly construing removal statutes, federal courts preserve the independence of state governments."); Stone v. Williams, 792 F. Supp. 749, 751-752 (M.D. Ala. 1992) (citing Shamrock Oil Gas Co. v. Sheets, 313 U.S. 100, 108-109 (1941)).
Section 1446 of 28 U.S.C. governs the procedure for removing a case from state to federal court. Section 1446(a) requires that a removing defendant file a notice of removal "containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served" with the district court. In cases involving multiple defendants, all defendants must consent to the removal under § 1441(a). See In re Federal Savings and Loan Insurance Corp., 837 F.2d 432, 434 n. 2 (11th Cir. 1988) (citing Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen Assistants' Local 349, 427 F.2d 325, 327 (5th Cir. 1970); P.P. Farmers' Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546, 547 n. 2 (7th Cir. 1968)). Save a limited exception that is not relevant here, 28 U.S.C. § 1446 (b) mandates that a notice of removal "shall be filed within thirty days" after defendant first receives notice of the action through an initial pleading. See 28 U.S.C. § 1446 (b).
The initial pleading required by 28 U.S.C. § 1446 (b) "must constitute a clear statement of the case which will allow the defendant to examine the basis for the action." Perimeter Lighting, Inc. v. Karlton, 456 F. Supp. 355, 358 (N.D. Ga. 1978) (citation omitted). Using the initial pleading's filing date as the starting point for the period of removal ensures "that the defendant will be able to ascertain, from the face of that pleading, the nature of the claims against him and the availability of removal." Stone v. Williams, 792 F. Supp. 749, 752 (M.D. Ala. 1992) (citation omitted). Under 28 U.S.C. § 1447(c), the Court may remand an action to state court based upon any defect in the removal procedure. See 28 U.S.C. § 1447(c); In re The Uniroyal Goodrich Tire Co., 104 F.3d 322, 324 (11th Cir. 1997); Wilson v. General Motors, 888 F.2d 779, 781 n. 1 (11th Cir. 1989).
B. Remand In General
In evaluating a motion to remand, the removing party bears the burden of demonstrating federal jurisdiction. Pachecode Perez v. ATT Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Diversity jurisdiction requires complete diversity, and every plaintiff must be diverse from every defendant. Tapscott v. M.S. Dealer Service Corp., 77 F.3d 1353, 1355 (11th Cir. 1996).
To determine whether a case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff, and must resolve any uncertainties about state substantive law in favor of the plaintiff. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997); B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The federal court makes these determinations based on the plaintiff's pleadings at the time of removal, but the court may consider affidavits and deposition transcripts submitted by the parties. Id. C. Fraudulent Joinder
Fraudulent joinder is a judicially-created doctrine that provides an exception to the requirement of complete diversity. Triggs v. Crump Toyota, 154 F.3d 1284, 1287 (11th Cir. 1998). Joinder has been deemed fraudulent in three situations. Id. First, when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant. Triggs, 154 F.3d at 1287; Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983), superceded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Alien, Inc., 991 F.2d 1533 (11th Cir. 1996). Second when there is outright fraud in the plaintiff's pleading of jurisdictional facts. Id. And third, where a diverse defendant is joined with a non-diverse defendant as to whom there is no joint, several, or alternative liability, and where the claim against the diverse defendant has no real connection to the claim against the non-diverse defendant. Triggs, 154 F.3d at 1287; Tapscott, 77 F.3d at 1360 (11th Cir. 1996).
If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court. Triggs, 154 F.3d at 1287; Crowe, 113 F.3d at 1538; Coker, 709 F.2d at 1440-41. The plaintiff need not have a winning case against the allegedly fraudulent defendant. He need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate. Triggs, 154 F.3d at 1287.
While the proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment under Fed.R.Civ.P. 56(b), the jurisdictional inquiry must not subsume substantive determination. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). The United States Court of Appeals for the Eleventh Circuit has repeatedly stressed that the trial court must be certain of its jurisdiction before "embarking upon a safari" in search of a judgment on the merits. Crowe, 113 F.3d at 1538. When considering a motion for remand, federal courts do not weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law. Triggs, 154 F.3d at 1287; Crow, 113 F.3d at 1538; Coker, 709 F.2d at 1440-41 (plaintiff need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate).
III. APPLICATION
Clark Equipment Company, the removing party, has failed to meet its burden of demonstrating federal jurisdiction. There is no diversity of citizenship in this case, and no federal jurisdiction. The plaintiff personal representative is a citizen of Florida, as was the decedent. Although there is diversity between the plaintiff and defendants Waste Management, Inc. and Clark Equipment Company, both Bobcat of Orlando, Inc and William Doug Fravel are citizens of Florida.
Waste Management, Inc. is a Texas corporation with its principal place of business in Dallas, Texas. Waste Management, Inc. was decedent's actual employer, even though decedent actually worked at Recycle America of Orange County, a company apparently owned by Waste Management, Inc. Clark Equipment Company is a Delaware corporation with its principal place of business in Woodcliff Lake, New Jersey. Clark Equipment Company is the manufacturer of the Bobcat Model 863 Skidsteer Loader Bobcat steer loader. Bobcat of Orlando, Inc. is likely a Florida corporation, and does have its principal place of business in Florida. It is the retailer and distributor of Bobcat equipment. William Doug Fravel is a citizen of Florida, and an employee of Waste Management, Inc or Recycle America. Fravel supervised the decedent, and drove the Bobcat that killed him.
Evaluating the factual allegations in the light most favorable to the plaintiff, and resolving all uncertainties about Florida substantive law in favor of the plaintiff, this case should be remanded to state court. Defendants have not shown any fraudulent joinder. At oral argument, no one argued that there was outright fraud in the plaintiff's pleading of jurisdictional facts. Neither is this a situation in which the diverse defendants (Waste Management, Inc. and Clark Equipment Company) are joined with the non-diverse defendants (Bobcat of Orlando, Inc. and Fravel) as to whom there is no joint, several, or alternative liability, and where the claim against the diverse defendants has no real connection to the claim against the non-diverse defendants. Of course, the Estate seeks damages for decedent's death from all who allegedly contributed to Nguyen's death, including Nguyen's supervisor at Waste Management, Inc. who ran him over with a Bobcat allegedly manufactured by Clark Equipment Company and allegedly delivered or serviced by Bobcat of Orlando, Inc.
Most importantly, this court cannot say that there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendants, Bobcat of Orlando, Inc. and William Doug Fravel. There is more than just a mere possibility that a Florida court would find that the complaint states a cause of action against at least one of the two resident defendants (Bobcat of Orlando, Inc. and Fravel). The decedent need not have a winning case against Fravel and Bobcat of Orlando, Inc. He need only have a possibility of stating a valid cause of action against them in order for the joinder to be legitimate. Discovery has only just begun. On the present record, this court cannot say that Fravel was not grossly negligent — that Travel's conduct was not so reckless or wanting in care that it constituted a conscious disregard or indifference to Nguyen's safety. This Court must therefore find that the joinder was proper, and recommend remand of the case to the state court.
IV. CONCLUSION
Failure to file written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
DONE and ORDERED.