Opinion
No. 1:02CV244-D-B
August 30, 2002
OPINION GRANTING MOTION TO REMAND
Presently before the court is the Plaintiffs' motion to remand this matter to the Circuit Court of Itawamba County, Mississippi. Upon due consideration, the court finds that the motion should be granted and this cause remanded to state court for ultimate resolution.
A. Factual Background
The Plaintiff Harvis Elton Warren worked at the Defendant Cooper Tire Rubber Company's Tupelo, Mississippi, warehouse as an independent contractor. In April of 2000, Mr. Warren was severely injured when a column of stacked tires and tire pallets fell on him while he was working at the warehouse.
The Plaintiffs filed this action in the Circuit Court of Itawamba County, Mississippi, on May 23, 2002. In the complaint, the Plaintiffs allege, inter alia, that the Defendants' conduct in connection with Mr. Warren's injuries renders them liable under various state law causes of action including negligence, premises liability and res ipsa loquitur. The Defendants removed the action to this court on June 2, 2002, on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332, alleging that the individual Defendant David Carmickel has been fraudulently joined by the Plaintiffs in order to defeat diversity. The Plaintiffs subsequently motioned the court to remand this matter to state court.
B. Standard/or Remand
The Judiciary Act of 1789 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441 (a). Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332 (a); Sid Richardson Carbon Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th Cir. 1996). After removal of a case, the plaintiff may move for remand, and "[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447 (c). In the case sub judice, there is no dispute that the amount in controversy exceeds $75,000. The Plaintiffs, however, assert that the court does not possess diversity jurisdiction because this action is not between citizens of different states, as is required by 28 U.S.C. § 1332.
The Plaintiffs and the individual Defendant David Carmickel, who was the supervisor and manager of Cooper Tire's Tupelo warehouse, are indisputably resident citizens of Mississippi. This fact, however, will not destroy federal diversity jurisdiction if the Plaintiffs fraudulently joined Carmickel in order to defeat diversity. Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997). But, if the court finds that Carmickel has not been fraudulently joined, then federal diversity jurisdiction is lacking, and the court must remand this matter to state court. See Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992) (federal diversity jurisdiction exists only if no plaintiff is a citizen of the same state as any defendant); Wright v. Combined Ins. Co. of America, 959 F. Supp. 356, 361 (N.D. Miss. 1997).
The party alleging fraudulent joinder bears the burden of persuasion, and that burden is quite stringent. See Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000) ("The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one."). In order to prove that a non-diverse party has been fraudulently joined by a plaintiff hoping to defeat federal diversity jurisdiction, the removing party must demonstrate either "outright fraud in the plaintiff's recitation of jurisdictional facts," or that there is "absolutely no possibility that [the plaintiff] will be able to establish a cause of action against [the allegedly fraudulently joined in-state defendant] in state court." Hart, 199 F.3d at 246.
The Defendants here do not allege outright fraud, so the court must determine whether there is absolutely no possibility that the Plaintiffs will be able to establish a cause of action against Carmickel in state court. In making this determination, the court evaluates all of the factual allegations in the Plaintiffs' pleadings in the light most favorable to the Plaintiffs, and the court examines relevant state law and resolves all uncertainties in favor of the Plaintiffs. Hart, 199 F.3d at 246.
Likewise, in evaluating a claim of fraudulent joinder, the court does not focus on whether the Plaintiffs will prevail on the merits of their claims. Instead, the court simply determines whether there is a possibility that the Plaintiffs will be able to state a claim against the allegedly fraudulently joined individual Defendant. Rodriguez, 120 F.3d at 591 see B., Inc. v. Miller Brewing Co., 663 F.2d 545, 550 (5th Cir. Unit A 1981) (holding that, to successfully move for remand, plaintiff's burden is "much lighter" than that required to survive motion for summary judgment; instead, there need only be "a reasonable basis for predicting that the state law might impose liability on the facts involved" in order for case to be remanded). Further, it is axiomatic that federal courts are to construe removal statutes "strictly against removal and for remand." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).
As set forth below, the court finds that the Defendants have failed to establish that there is no possibility that the Plaintiffs will be able to state a claim against the individual Defendant Carmickel. Accordingly, federal jurisdiction is not present, and this cause shall be remanded to state court pursuant to 28 U.S.C. § 1447 (c).
C. Discussion 1. General Principles
Whether a plaintiff states a cognizable claim against a defendant is determined by reference to the allegations made in the plaintiff's original pleadings, although the court may "pierce" those pleadings in making its determination. B., Inc., 663 F.2 d at 549; Wheeler v. Frito Lay, Inc., 743 F. Supp. 483, 485 (S.D. Miss. 1990). In the case at bar, the Plaintiffs allege, inter alia, that the individual Defendant Carmickel was negligent in connection with the circumstances surrounding the Plaintiff Harvis Elton Warren's injuries.
Under Mississippi law, an agent for a disclosed principal can be held personally liable for his own tortious acts committed within the scope of his employment, and a tort claim can be maintained against that agent.Hart, 199 F.3d at 247. The agent is subject to personal liability when he "directly participates in or authorizes the commission of a tort." Hart, 199 F.3d at 247 (quoting Mississippi Printing Co., Inc. v. Maris, West Baker, Inc., 492 So.2d 977, 978 (Miss. 1986)). In the case sub judice, the Plaintiffs have alleged that Carmickel, as the agent for Cooper Tire who was in charge of the warehouse where Mr. Warren was injured, directly participated in the commission of at least one tort, negligence, while within the scope of his employment. See Complaint at ¶¶ 8, 15, 16, 27.
2. A Premises Owner's or Manager's Potential Liability to Independent Contractors
While Mississippi law makes it burdensome for independent contractors or business invites to successfully sue premises owners (or those in charge of the premises) for negligence for injuries sustained while working on the premises, the court finds that such relief is not necessarily foreclosed in this case. See. e.g., Diamond Int'l Corp. v. May, 445 So.2d 832, 835 (Miss. 1984) (stating that independent contractors are considered business invitees under Mississippi law);Stokes v. Emerson Elec. Co., 217 F.3d 353, 356-59 (5th Cir. 2000) (setting forth relevant standards for independent contractor to establish claim for negligence against premises owner or manager).
While premises owners or managers have no duty to protect independent contractors against risks "arising from or intimately connected with defects of the premises, or of machinery or appliances located thereon, which the contractor has undertaken to repair," the Defendants have made no effort to establish that this "intimately connected" exception to liability is applicable here; and, based on the record before it, the court cannot hold as a matter of law that the exception applies. Stokes, 217 F.3d at 357; United Roofing and Siding v. Seefeld, 222 So.2d 406, 408 (Miss. 1969). Accordingly, at this stage of the proceedings and based on the evidence presently before the court, the Plaintiffs' negligence claim against Carmickel survives this potential ground for dismissal.
A corollary to the "intimately connected" exception to liability states that a premises owner or manager is not liable when the independent contractor assumes "the right and fact of control of the premises and the nature and details of the work." Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 185 (Miss. 1989). No evidence currently before the court suggests that Mr. Warren had "the right and fact of control" of the warehouse where he was working, although he did control the nature and details of his work. Accordingly, this exception to liability potentially does not apply.
Finally, an owner or manager is not liable for injuries suffered by an independent contractor "resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees `assumed the risk.'" Stokes, 217 F.3d at 357. This "knowledge of danger" exception to liability applies to dangerous conditions of which the contractor has actual or constructive knowledge. Hill v. International Paper Co., 121 F.3d 168, 175 (5th Cir. 1997). The Defendants have not asserted this exception as a bar to recovery by the Plaintiffs, and the court finds that the exception may not apply because there is no evidence presently before the court indicating that Mr. Warren knew or should have known of the dangerous condition that purportedly caused his injuries. Accordingly, the court finds that the Defendants have failed to establish that there is no possibility that the Plaintiffs will be able to state a claim for negligence against the individual Defendant David Carmickel based on this exception to potential liability.
3. Conclusion
In sum, upon careful review of the parties' submissions, and after construing all state law ambiguities in favor of the Plaintiffs, the court finds that the scenario set forth in the Plaintiffs' pleadings, if true, could possibly result in liability being imposed on David Carmickel for his alleged tortious acts. The Plaintiffs have sufficiently set forth specific allegations, including that Carmickel was aware of the danger posed at the warehouse and took no action to address the danger, demonstrating that Carmickel may have been negligent.
Accordingly, the court finds that the Defendants have not demonstrated that there is absolutely no possibility that the Plaintiffs will be able to establish a cause of action against Carmickel in state court. As such, the court finds that Carmickel has not been fraudulently joined in this action, and thus his citizenship cannot be ignored for the purposes of determining subject matter jurisdiction. His presence in this civil action means that the complete diversity of citizenship necessary to maintain federal jurisdiction over this case is absent. This cause, accordingly, shall be remanded to the Circuit Court of Itawamba County for ultimate resolution.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION TO REMAND
Pursuant to an opinion issued this day, it is hereby ORDERED that
(1) the Plaintiffs' motion to remand (docket entry 13) is GRANTED; and
(2) this cause is hereby REMANDED to the Circuit Court of Itawamba County, Mississippi.