TRAN
v.
WASTE MANAGEMENT, INC.
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The court held that the defendants failed to demonstrate fraudulent joinder, and therefore, federal diversity jurisdiction was lacking, requiring remand to state court.
[1] Statutes authorizing removal of actions to federal courts are to be strictly construed against removal, and all uncertainties as to removal jurisdiction are to be resolve…
[2] The doctrine of fraudulent joinder provides an exception to the citizenship requirements for removal jurisdiction, allowing a federal court to disregard the citizenship o…
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Join FLexlaw to unlock all legal intelligencePlaintiff, a Florida citizen, sued several defendants, including Florida citizens, in state court for wrongful death arising from an industrial vehicl…
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Orange County, Florida.
See
Doc. No. 44 at 8. The Defendants, Bobcat of Orlando, Inc. and Clark Equipment Company, filed Objections (Docs. No. 49 &50 respectively) to the Report and Recommendation (Doc. No. 44), and a memorandum of law in support thereof (Doc. No. 51) on June13, 2003. The Plaintiff has not responded, and the time for doing so has expired. Having reviewed the Report and Recommendation (Doc. No. 44) and the Defendants’ Objections thereto (Docs. No. 49 &50), this Court OVERRULES the Objections (Docs. No. 49 &50), and AFFIRMS and ADOPTS Judge Glazebrook’s well-reasoned memorandum opinion (Doc. No. 44).
II. BACKGROUND
The Plaintiff, Huong Thi Tran, is a citizen of the State of Florida,
1
and is the personal representative of the Estate of No Van Nguyen (“Mr. Van Nguyen”),
2
her husband.
3
The Defendant, Waste Management, Inc. (“Waste Management Corporation”), is a Texas corporation with its principal place of business located in the State of Texas.
4
The Defendant, Clark Equipment Company, is a Delaware corporation with its principal place of business located in the State of New Jersey.
5
The Defendant, Bobcat of Orlando, Inc., is a Florida corporation with its principal place of business located in the State of Florida.
6
The Defendant, William Doug Fravel (“Mr.Fravel”), is a citizen of the State of Florida.
7
This action is for personal injuries arising out of an industrial vehicle collision occurring in Orange County, Florida.
8
In September of 2000, Mr. Van Nguyen was employed as a material sorter with Recycle America of Orange County (“Recycle America”),
9
a division of the Waste Management Corporation.
10
In his capacity as a material sorter, Mr. Van Nguyen was responsible for sorting through cardboard recyclables in order to remove contaminated materials.
11
Once Mr. Van Nguyen’s sorting duties were completed, a Bobcat Skid Steer Loader pushed the cardboard onto a conveyer belt, which inserted the cardboard into a bailer, where the cardboard was baled.
12
On or about September27, 2000, while Mr. Van Nguyen was sorting through a large pile of cardboard, his supervisor, Mr. *1289
Fravel, backed a Bobcat Skid Steer Loader into his person.
13
As a result, Mr. Van Nguyen suffered blunt force trauma to his head and chest, and he was killed instantly.
14
It is apparent that the Clark Equipment Company (“Clark”) designed, assembled, and manufactured the Bobcat Skid Steer Loader.15
Bobcat of Orlando, Inc. (“Bobcat”), is a business unit of Clark.
16
In connection with that accident, the Plaintiff filed a lawsuit against the Defendants pursuant to Florida’s Wrongful Death Act, Fla. Stat. §§ 768.16-768.27.
17
Count I of the First Amended Complaint alleges a cause of action for intentional negligence against the Waste Management Corporation;
18
Count II alleges a cause of action for gross negligence against Mr. Fravel;
19
Count III alleges a cause of action for strict liability product defects against Clark;
20
Count IV alleges a cause of action for strict liability against Bobcat;
21
and Count V alleges a cause of action for breach of implied warranty of fitness and merchantability against Bobcat.
22
The lawsuit was filed in the Ninth Judicial Circuit Court, in and for Orange County, Florida (“the state court”) on August20, 2002.
23
On January31, 2003, Clark filed a Petition for Removal from the state court to the United States District Court for the Middle District of Florida pursuant to28 U.S.C. §§ 1441
24
and 1446.
25
Although
*1290
the Plaintiff and two of the Defendants, Mr. Fravel and Bobcat, are citizens of the State of Florida, removal was based on diversity jurisdiction.
26
In that regard, the Petition for Removal states as follows:
Although Plaintiff and Defendant WILLIAM DOUG FRAVEL are both citizens of the State of Florida, this case is nonetheless removable because WILLIAM DOUG FRAVEL has been fraudulently joined. Defendant, WILLIAM DOUG FRAVEL, at all times material hereto, was a co-employee with the Defendant, NO VAN NGUYEN working at Recycle America of Orange County ... WILLIAM DOUG FRAVEL is entitled to protection under Florida Statute § 440.11, Workers Compensation Exclusive Remedy. Because Plaintiff cannot state a clause of action against WILLIAM DOUG FRAVELU WILLIAM DOUG FRAVEL has been fraudulently joined and his citizenship should be disregarded for the purposes of diversity.
27
******
Although Plaintiff and Defendant, BOBCAT OF ORLANDO, INC., are both citizens of Florida, this case is nonetheless removable because BOBCAT OF ORLANDO, INC., has been fraudulently joined. BOBCAT OF ORLANDO, INC. did not sell the subject ... loader... Because Plaintiff cannot state a cause of action against BOBCAT OF ORLANDO, INC., BOBCAT OF ORLANDO, INC. has been fraudulently joined [and] its citizenship should be disregarded for diversity purposes.
28
On February24, 2003, the Plaintiff filed a Motion to Remand to the state court on the grounds that removal was defective because there was no fraudulent joinder and the Defendants failed to meet the burden of establishing federal diversity jurisdiction.
29
Oral argument on the motion was held on May8, 2003,
30
and United States Magistrate Judge James G. Glazebrook issued a Report and Recommendation on May27, 2003.
31
In his memorandum opinion, Judge Glazebrook recommended that the Plaintiffs Motion be granted, and that this case be remanded to the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida because the Defendants failed to show “any fraudulent joinder.”
32
This Court must now consider the Defendants’, Bobcat of Orlando, Inc. and Clark Equipment Company, Objections to Judge Glazebrook’s recommendations.
33
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III.ASSIGNMENTS OF ERROR
In their Objections to Magistrate Judge Glazebrook’s Report and Recommendation, the Defendants assign four points of error.34
First, they argue that Judge Glaze-brook “failed to apply the correct standard in evaluating Plaintiffs Motion for Remand, because he considered only the bare allegations of Plaintiffs Complaint instead of the totality of the evidence before him.”
35
Second, they argue that Judge Glazebrook “failed to evaluate whether a Florida court could deem defendant William Doug Fravel to have been grossly negligent in light of Fla. Stat. [§ ] 440.11(1) ... and [relevant] deposition testimony.”
36
Third, they argue that Judge Glazebrook “failed to make
any
findings regarding whether Bobcat of Orlando, Inc. was fraudulently joined.”
37
And finally, they argue that Judge Glazebrook “failed to hold plaintiff to her burden of contesting either the allegations in Clark’s Petition for Removal or Clark’s proof of fraudulent joinder.”
38
IV.STANDARD OF REVIEW
When a magistrate judge issues a report and recommendation, the district judge must make a
de novo
determination of the findings and/or recommendations to which any party objects.
39
“This requires that the district judge ‘give fresh consideration to those issues to which specific objection has been made by a party.’ ”
40
“In the absence of specific objections, there is no requirement that a district judge review factual findings
de novo.”
41
However, regardless of whether objections are filed, a district judge must review a magistrate’s legal conclusions
de novo.
42
After reviewing a report and recommendation, objections, and responses thereto, the district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
43
V.LEGAL ANALYSIS
A. THE LAW OF REMOVAL
The Constitution and Congress limit a federal court’s jurisdiction by restricting the types of cases which the federal courts may hear.44
For this reason, statutes authorizing removal of actions to federal courts are to be strictly construed against removal.
45
In fact, because “[fjederal courts are of limited jurisdiction, ... there is a pre
*1292
sumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.”
46
A removing party must present facts establishing its right to remove.
47
When the removing party fails to do so, remand is favored. Nevertheless, a federal court should “be cautious about remand, lest it erroneously deprive [a] defendant of the right to a federal forum.”
48
B. THE LAW OF FRAUDULENT JOINDER
It is well established that for removal to be proper under28 U.S.C. § 1441 “no defendant can be a citizen of the state in which the action was brought.”
49
However, “even if a named defendant is such a citizen ... it is appropriate for a federal court to dismiss such a defendant and retain diversity jurisdiction” if the joinder of that defendant was fraudulent.
50
The doctrine of fraudulent joinder provides for an exception to the citizenship requirements of removal jurisdiction.
51
In the Eleventh Circuit, joinder has been deemed fraudulent in three situations: (1) when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant; (2) when there is outright fraud in the plaintiffs pleading of jurisdictional facts; and (3) where a resident shares no joint, several, or alternative liability with the nonresident defendants and the claim against the resident defendant has no real connection to the claims against the nonresident defendants.
52
With respect to the first type of fraudulent joinder, “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.”
53
“The plaintiff need not have 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.”
54
In determining “whether the 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
*1293
substantive law in favor of the plaintiff.”
55
A federal court should make “these determinations based on the plaintiffs pleadings at the time of removal; but the court may [also] consider affidavits and deposition transcripts submitted by the parties.”
56
It is important to note that “[w]hile 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.”
57
Indeed, federal courts must be certain of their jurisdiction before “embarking upon a safari in search of a judgment on the merits.”
58
As such, “[w]hen considering a motion to remand, federal courts are not to weigh the merits of a plaintiffs claim beyond determining whether it is an arguable one under state law.”
59
In other words, a “district court’s authority to look into the ultimate merits of the plaintiffs claims must be limited to checking for
obviously fraudulent or frivolous
claims.”
60
“On a motion to remand, the removing party bears the burden of proof on the issue of diversity.”
61
“It follows that the burden of proving that joinder of non-diverse resident defendants was a fraudulent attempt to defeat removal also rests on the removing party.”
62
C. APPLICATION
1. The Fraudulent Joinder of Mr. Fravel
In this instance, the parties do not dispute the fact that the Florida Workers Compensation Act affords Mr. Fravel immunity from liability for injury or death arising out this industrial vehicle colli
*1294
sion.
63
Nor do the parties dispute the fact that there are several recognized exceptions to Mr. Fravel’s immunity. In that regard, the Workers Compensation Act provides as follows: “[immunity] shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with
gross negligence
when such acts result in injury or death or such acts proximately cause such injury or death.”
64
The term gross negligence, as it is used in that statute, requires the following:
First of all, gross negligence presupposes the existence of a composite of circumstances which, together, constitute an imminent or clear and present danger amounting to more than normal and usual ... peril ... Secondly, gross negligence must be predicated on a showing of chargeable knowledge or awareness of the imminent danger spoken of. And thirdly, the act or omission complained of must occur in a manner which evinces a conscious disregard of consequences, as distinguished from a careless disregard thereof (as in simple negligence) or from the more extreme willful or wanton disregard thereof (as in culpable or criminal negligence).
65
Applying the aforementioned standards to the case at hand, this Court finds that the Plaintiffs action for gross negligence against Mr. Fravel is not so obviously frivolous as to be considered fraudulent.
66
Foremost, it is plausible that Mr. Fravel’s operation of an industrial vehicle in reverse constitutes an imminent or clear and present danger amounting to more than a normal and usual peril. Second, the record reflects that it is within the realm of possibilities that Mr. Fravel was aware of the imminent danger spoken. Specifically, Mr. Fravel admitted to having seen Mr. Van Nguyen in the immediate vicinity pri- or to the collision.
67
And finally, it is feasible that the collision could have occurred in such a manner as to evidence a conscious disregard of the consequences.
In sum, “drawing all reasonable inferences from the record in the plaintiffs favor and then resolving all contended issues of fact in favor of the plaintiff’,
68
this
*1295
Court finds that there is a possibility that a state court would find that the complaint states a cause of action against Mr. Frav-el.
69
As such, there is no fraudulent join-der, and this case must be remanded for lack of subject matter jurisdiction.
70
Since this Court has determined that Mr. Fravel was not fraudulently joined, it is unnecessary to address whether Bobcat is a proper party.
D. ATTORNEY FEES
In her Motion to Remand, the Plaintiff seeks attorney fees and costs pursuant to28 U.S.C. § 1447(c) on the grounds that Clark’s “removal was totally without merit.”
71
That provision provides, in pertinent part, that an order remanding a case to the state court “may require payment of just costs and any actual expenses, including attorneys fees, incurred as a result of the removal.”
72
“Whether to award fees and costs under this section is within the Court’s sole discretion.”
73
In the Middle District of Florida, where subject matter jurisdiction is lacking “a showing of bad faith is not necessary as a predicate to the award of attorney’s fees [under28 U.S.C. § 1447(c) ].”
74
Rather, the “intent of the statute is to reimburse plaintiffs who have incurred expenses in attacking
improper
removals.”
75
In this case, although the filing of the Notice of Removal may have been in good faith, the Notice was improper because this Court lacks subject matter jurisdiction.
76
In fact, it can be stated with relative ease that the Notice was patently
*1296
improper considering the facts presented in the case, the presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand
77
, and Eleventh Circuit precedent providing that in the remand context “the district court’s authority to look into the ultimate merit of the plaintiffs claims must be limited to checking for obviously fraudulent or frivolous claims.”
78
Accordingly, this Court finds that “as a matter of fairness”, the Plaintiff is entitled to recover from the Defendant, the Clark Equipment Company, all just costs and any actual expenses, including attorneys fees, incurred as a result of the removal.
79
VI. CONCLUSION
Based on the foregoing, it is ORDERED that:
1. The Defendant’s, Bobcat of Orlando, Inc., June 13, 2003 Objections to Magistrate Judge’s Proposed Findings and Recommendations Contained Within Report on Remand (Doc. No. 49) are OVERRULED.
2. The Defendant’s, Clark Equipment Company, June13, 2003 Objections to Magistrate Judge’s Report and Recommendation on Remand (Doc. No. 50) are OVERRULED.
3. United States Magistrate Judge James G. Glazebrook’s May27, 2003 Report and Recommendation (Doc. No. 44) is APPROVED and ADOPTED.
(a) The Plaintiffs, Huong Thi Tran, as the personal representative of the Estate of No Van Nguyen, February24, 2003 Motion to Remand (Doc. No. 10) is GRANTED.
(b) This case is hereby REMANDED to the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. The clerk shall take all necessary steps to effectuate this remand including forwarding a certified copy of this Order to that court.
4.This Court retains jurisdiction to secure payment for the just costs and actual expenses, including attorney fees, incurred as a result of this improper removal.
(a) The parties shall confer in a good faith effort to determine the amount of attorneys’ fees and costs to be paid.
(b) If the parties fail to reach an agreement the Plaintiff shall submit to this Court a Bill of Costs and other appropriate documentation evincing all costs, actual expenses, and attorney fees expended in connection with attacking this improper removal.
(c) The Plaintiff shall file such Bill of Costs on or before Monday, July21, 2003.
*1297
(d) The Defendant, the Clark Equipment Company, shall have until Monday, July28, 2003 to respond to the Plaintiffs Bill of Costs.
Report And ReCOMmendation
GLAZEBROOK, United States Magistrate Judge.
TO THE UNITED STATES DISTRICT COURT
This cause came on for oral argument on May8, 2003 [Docket No. 41] on the following motion:
MOTION: PLAINTIFF’S MOTION TO REMAND (Doc. No. 10)
FILED: February24, 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 September27, 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);
1
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.
On January21, 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 Fravel’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 February14, 2003 that states that Bobcat “consents to the removal of this cause,” and then seeks dismissal or summary judgment. Docket No. 9.
On February24, 2003, Nguyen’s personal representative moved to remand the case to state court pursuant to28 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 May8, 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
*1298
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 Corp. v. Sheets,
313 U.S. 100, 108—109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)).
Section 1446 of28 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
The initial pleading required by28 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). Under28 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.
Pacheco de Perez v. AT & T 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 plaintiffs 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.
*1299
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 Allen, Inc.,
991 F. 2d 1533 (11th Cir.1993). Second when there is outright fraud in the plaintiffs 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 plaintiffs claim beyond determining whether it is an arguable one under state law.
Triggs,
154 F. 3d at 1287;
Crowe,
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 ease, 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
*1300
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 plaintiffs 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 Fravel’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.
IY.
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.
Mat27, 2003.
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Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (31 total)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (U.S. 1994)
- Shamrock OIL & GAS Corp. v. Sheets, 313 U.S. 100 (U.S. 1941)
- Burns v. Windsor Ins. Co., 31 F.3d 1092 (11th Cir. 1994)
- Jeffrey S. v. State Bd. OF Educ. OF State OF Ga., 896 F.2d 507 (11th Cir. 1990)
- Ligia Pacheco de Perez v. AT&T Co., 139 F.3d 1368 (11th Cir. 1998)
- Triggs v. John Crump Toyota, Inc., 154 F.3d 1284 (11th Cir. 1998)
- Crowe v. Coleman, 113 F.3d 1536 (11th Cir. 1997)
- Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996)
- Coker v. Amoco OIL Co., 709 F.2d 1433 (11th Cir. 1983)
- Glaab v. Caudill, 236 So. 2d 180 (Fla. 2d DCA 1970)