2020 WL 5879406

United States District Court, D. Connecticut.
SANDRA CASTILLO Plaintiff,
v.
SWIFT TRANSPORTATION SERVICES, LLC, et al. Defendants.
No. 20-cv-1291 (VLB)
|
Filed 10/02/2020

Order remanding case to Superior Court for the State of Connecticut
Hon. Vanessa L. Bryant United States District Judge
*1 After reviewing the Defendants’ Notice of Removal, accompanying filings, and the Defendants’ response [Dkt. 16] to the Court’s Order to Show Cause [Dkt. 14], the Court remands this matter to the Superior Court for the State of Connecticut because the Court does not have removal jurisdiction over the action pursuant to 28 U.S.C. § 1441(b)(2) because the Defendants only invoke diversity jurisdiction (28 U.S.C. § 1332(a)) and one of the Defendants, Mr. Hernandez, is a citizen of Connecticut.

Procedural Background
On August 3, 2020, Plaintiff Sandra Castillo, a citizen of Michigan, commenced an action in Superior Court for the State of Connecticut against Defendants Hector Hernandez, a citizen of Connecticut, Swift Transportation Services, LLC, Swift Transportation Company of Arizona, Swift Services Holdings, Inc. and Knight-Swift Transportation Holdings, Inc. [Dkt. 1 (Not. of Removal, Dkt. 1-1 (Compl.) ¶ 2) ]. The corporate defendants maintain their principle place of business in Arizona, where they are also domiciled. [Dkt. 1 (Not. of Removal) ¶ 3].

The action alleges that Ms. Castillo sustained bodily injuries during a motor vehicle accident in New York involving a tractor-trailer truck that Defendant Hernandez operated on behalf of the other Defendants. [Compl. ¶¶ 3-5]. Plaintiff alleges that she sustained damages in excess of $15,000 for jurisdictional purposes; Defendants aver that some of Plaintiff’s injuries are alleged to be permanent, resulting in lost earning capacity, and that the amount in controversy is in excess of $75,000. [Dkt. 1 (Not. of Removal) ¶ 4].

All Defendants joined and removed this action on September 2, 2020, asserting that this Court has diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332(a)(1). [Dkt. 1]. The next day, the Court ordered the Defendants to show cause why the case should not be dismissed or remanded under 28 U.S.C. § 1441(b) because Defendant Hector Hernandez is a citizen of Connecticut.

The Defendants filed a timely response. [Dkt. 16]. The Defendants acknowledge that Mr. Hernandez is a citizen of Connecticut. [Id. at 1]. They argue that diversity jurisdiction exists because the parties are citizens of Michigan, Arizona and Connecticut and, therefore, they have sustained their burden for removal based on diversity jurisdiction. [Id. at 2]. Inexplicably their response does not address the applicability of 28 U.S.C. § 1441(b), which the Court ordered Defendants to address. As a consequence of Defendants’ failure to comply with its order, this Court is obliged to expend hours preparing this memorandum of law.

Removal Jurisdiction
The traditional justification for diversity jurisdiction is to “open[ ] the federal courts’ doors to those who might otherwise suffer from local prejudice against out-of-state parties.” Hertz Corp. v. Friend, 559 U.S. 77, 85 (2010) (citations omitted) (reversing district court’s finding that jurisdiction was lacking). Removability is governed by 28 U.S.C. § 1441. The statute provides, in relevant part:
*2 Generally.–Except as otherwise expressly provided by Act of Congress, 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.
§ 1441(a)(emphasis added).

Here, the removing Defendants satisfy the original jurisdiction requirement; complete diversity exists between the parties and the amount in controversy requirement is also satisfied. But the Defendants fail to satisfy the requirement for removing an action on diversity jurisdiction grounds. 28 U.S.C. § 1441(b)(2), states:
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

Plaintiff alleges and the Defendants concede that Mr. Hernandez is a citizen of Connecticut. Therefore, the removal of this action from Connecticut state court to this District patently violates the defendant-forum rule, 28 U.S.C. § 1441(b)(2). See, e.g., U.S. Bank Tr., N.A. for Wells Fargo Asset Sec. Corp. v. Walbert, No. 3:17-CV-00991 (CSH), 2017 WL 3578553, at *3 (D. Conn. Aug. 18, 2017)(“Defendant repeatedly ignores, and fails at all to address in his opposition, 28 U.S.C. § 1441(b)(2), which provides that actions (like this one) based solely on diversity jurisdiction are not removable where a defendant is a citizen of the state in which the action is originally brought. Thus, regardless of where Plaintiff is located, or even which entity is the correct Plaintiff, the Court lacks subject matter jurisdiction over this case against the [removing defendant]. There is no jurisdiction to hear the claims in this action based on diversity of citizenship, and this action must be remanded on this basis alone.”)(footnotes omitted); see also Vendor Res. Mgmt. v. Estate of Zackowski, No. 3:19CV203(AWT), 2019 WL 2188754, at *3 (D. Conn. Apr. 10, 2019)(same); Speranza v. Leonard, 925 F. Supp. 2d 266, 272 (D. Conn. 2013)(same).

In the interest of not protracting this matter further unnecessarily, pursuant to Federal Rule of Civil Procedure 1 the Court commends to Defendants’ counsel’s reading this district’s Local Rule 7. D. Conn. L. Civil R. 7(c)1. Notably, the standard for a motion for reconsideration is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration will only be granted, and should only be sought in good faith founded on a diligent inquiry, on one of the following three grounds: (1) an intervening change in the law; (2) the availability of new evidence; or (3) the need to correct a clear error or prevent manifest injustice. Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245 (2d Cir. 1992). Under no circumstances should a party be permitted to use a motion to reconsider solely to relitigate an issue already decided. Shrader, 70 F.3d 255, 257 (2d Cir. 1995). “[W]here litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d at 1255; Advisory Committee on Rules – 1983 Amendments, citing RoadwayExpress Inc. v. Piper, 447 U. S. 752 (1980); Hall v. Cole, 412 U. S. 1, 5 (1973). Under the “law of the case” doctrine, when a court has ruled on an issue, that decision should be adhered to by that court in subsequent stages in the same case unless cogent and compelling reasons militate otherwise.” Johnson v. Holder, 564 F.3d 95, 99 (2d. Cir. 2009) (internal quotation marks omitted). A party which disagrees with a court’s decision may file a timely appeal and a motion for reconsideration should not be allowed to be deployed as a strategic tool for extending an appeal deadline. This principle applies equally were a party seeks to advance an argument previously made on the same grounds rejected by the court, and where a party seeks to advance a new argument it could have but failed to advance in the first instance. To meet this standard, a motion for re-consideration must be accompanied by “a memorandum [of law] setting forth concisely the controlling decisions or data the movant believes the Court overlooked.” D. Conn. L. Civil R. 7(c).

*3 Defendants cannot meet the reconsideration standard. The Court identified the controlling law and afforded Defendants an opportunity to explain why the case should not be remanded. Defendants failed to comply with the Court’s order and advance a basis for jurisdiction. Thus, Defendants could not identify any matter which the Court failed to consider or a manifest injustice. Nor could there be an intervening change in law as the Court’s decision is based on the law Defendants were directed to address and failed to do so. Finally, Mr. Hernandez was admittedly a citizen of Connecticut on the crucial date the case was filed. Even if he moved to another state after the case was filed the change would not confer jurisdiction. LeBlanc v. Cleveland, 248 F.3d 95, 100 (2d Cir. 2001) (“The fact that [plaintiff] has become a citizen of New York for diversity purposes since filing this lawsuit does not destroy diversity jurisdiction; her status at the time she filed her complaint is controlling.”); Wright & Miller 13F Fed. Prac. & Proc. Juris. § 3638 (3d ed.)

Finally, despite Defendants’ counsel’s failure to make a diligent inquiry of the law cited by the Court as ordered and the unnecessary expenditure of judicial resources occasioned by this failure, the Court declines to exercise its discretion to impose a sanction at this time. Fed. R. Civ. P. 11.

Conclusion
For the reasons stated above, the Court REMANDS this matter to the Superior Court for the State of Connecticut. The Clerk shall send a certified copy of this Order to the Clerk of the Superior Court. 28 U.S.C. § 1447. Thereafter, the Clerk shall close this case.

Counsel for the removing Defendants is ordered to show cause why the Court should not require “payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal” within 14 days of the entry of this order. 28 U.S.C. § 1447(c).

IT IS SO ORDERED

Dated at Hartford, Connecticut: October 2, 2020

All Citations
Slip Copy, 2020 WL 5879406

2020 WL 5880189

United States District Court, N.D. Alabama, Western Division.
PATRICIA ANN TAYLOR, Plaintiff,
v.
TREVOR EAVES LOGGING, LLC, et al., Defendants.
7:20-cv-00836-LSC
|
10/02/2020

L. Scott Coogler, United States District Judge

MEMORANDUM OF OPINION
*1 Before the Court is Plaintiff’s Motion to Remand. (Doc. 19.) The motion has been fully briefed and is ripe for review. For the reasons stated below, Plaintiff’s motion is due to be granted, and this matter is due to be remanded to the Circuit Court of Sumter County, Alabama.

I. BACKGROUND1
Plaintiff Patricia Taylor (“Taylor”), as administratrix of the Estate of Emma Taylor, brings this action against Defendants Trevor Eaves Logging, LLC (“Trevor Logging”); Trevor Eaves Trucking, LLC (“Trevor Trucking”); WestRock CP, LLC (“WestRock”); Calyx Star Ranch (“Calyx”); Daniel Eaves Logging, LLC (“Daniel Logging”); Terry Randall (“Randall”); and Donald Roberts (“Roberts”) (collectively, the “Defendants”). Taylor asserts state law claims against Defendants for negligence, wantonness, negligent entrustment, negligent selection, negligent hiring, and wanton hiring. Taylor seeks damages for the death of Emma Taylor pursuant to Alabama’s Wrongful Death Statute, Ala. Code § 6-5-410.

Randall, Regional Manager for WestRock, contracted with Trevor Logging and Trevor Trucking to transport logs from Mississippi to Alabama. Pursuant to this contract, Roberts, who worked for Trevor Logging, Trevor Trucking, and Daniel Logging, transported logs from Calyx in Mississippi to WestRock’s Rooster Bridge Chip Mill in Alabama. After leaving Rooster Bridge Chip Mill, Roberts attempted an illegal pass while driving a tractor/trailer, which resulted in a head-on collision with Emma Taylor. Emma Taylor died as a result of injuries sustained in the collision.

Taylor alleges that Defendants knew or should have known that the tractor/trailer driven by Roberts “was put out of service by the Federal Motor Carrier Safety Administration and was not safe…to engage in interstate commerce.” (Doc. 1-1 ¶ 18.) She argues that the tractor/trailer “posed a danger to the motoring public,” and that Defendants, including Randall, knew or should have known this at the time Randall entered into the contract with Trevor Logging and Trevor Trucking. (Id. ¶ 21.) Taylor alleges that all of Trevor Logging and Trevor Trucking’s vehicles were out of service, and therefore dangerous.

Taylor originally filed suit in the Circuit Court of Sumter County, Alabama, on May 20, 2020. (Doc. 1-1.) Randall was served on May 20, 2020 (doc. 1-2); Roberts was served on May 26, 2020 (doc. 23-4); Trevor Trucking and Trevor Logging were served on May 29, 2020 (doc. 27); WestRock was served on June 8, 2020 (doc. 1); Calyx was served on June 8, 2020 (doc. 28); and Daniel Logging was served on June 10, 2020 (doc. 1). Randall and WestRock filed a timely Notice of Removal on June 12, 2020,2 asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332. (See doc. 1.) Randall and WestRock acknowledge that Defendants are not completely diverse from Taylor. However, they allege that this is because Randall was fraudulently joined to destroy diversity.3 Randall and WestRock also acknowledge that they had not received consent from all defendants before filing their Notice of Removal, including the last-served defendant, Daniel Logging.

*2 Taylor filed a Motion to Remand on July 10, 2020, claiming that Randall, a citizen of Alabama, was not fraudulently joined. (Doc. 19.) She asserts that, because Randall was not fraudulently joined, the parties are not completely diverse, therefore the Court lacks subject matter jurisdiction. Taylor also claims that Roberts did not consent to removal, therefore Randall and WestRock’s Notice of Removal was deficient.

Randall and WestRock filed a Response in Opposition to Plaintiff’s Motion to Remand on July 27, 2020. (Doc. 23.) Calyx and Daniel Logging joined in Randall and WestRock’s Response, consenting to removal along with Trevor Logging and Trevor Trucking. Daniel Logging, Trevor Logging, Trevor Trucking, and Calyx filed Notices of Consent to Removal on August 5, 2020. (Docs. 26, 27, 28.) Taylor filed a Motion to Strike Untimely Consents. (Doc. 29). Calyx and Daniel Logging filed responses to Taylor’s Motion to Strike. (Docs. 30, 31.) Taylor filed a Reply to Defendants’ Response. (Doc. 32.)

II. STANDARD OF REVIEW
A defendant may remove an action initially filed in state court to federal court if the action is one over which the federal court has original jurisdiction. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). As relevant here, jurisdiction exists if there is complete diversity between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1); Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005). The removing party bears the burden of establishing that removal was proper. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). Therefore, defendants removing a case to federal court based on diversity of citizenship bear the burden of establishing the citizenship of the parties. Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam). Any doubt about the existence of federal jurisdiction “should be resolved in favor of remand to state court.” City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (internal citations and quotation marks omitted).

III. DISCUSSION
Taylor raises two grounds for remand: (1) the parties lack complete diversity, and (2) Defendants failed to demonstrate unanimous consent for removal. Defendants argue that complete diversity exists because Randall was fraudulently joined to destroy diversity, and that Roberts’s refusal to consent to removal should be disregarded. The Court will address each argument.

A. Citizenship of LLCs4
For the purposes of diversity jurisdiction, an LLC has the same citizenship as its members. See Carden v. Arkoma Assocs., 494 U.S. 185, 195 (1990); Rolling Greens MHP, LP, 374 F.3d at 1022. Thus, defendants must “list the citizenships of all the members of the limited liability company” in order to satisfy their burden of demonstrating complete diversity of citizenship. Rolling Greens MHP, LP, 374 F.3d at 1022.

Defendants have failed to demonstrate the citizenship of Trevor Logging, Trevor Trucking, Daniel Logging, and Calyx, all of which are LLCs.5 Randall and WestRock state that the LLCs are organized in Mississippi, which is also where they have their principal places of business. However, this does not establish the citizenship of an LLC. Randall and WestRock fail to state the citizenship of the members of these LLCs, therefore they have not met their burden to demonstrate complete diversity of citizenship between parties.6 As such, the Court lacks subject matter jurisdiction over this matter, and Taylor’s Motion to Remand (doc. 19) is due to be granted on this ground alone.

B. Fraudulent Joinder
*3 Even if Randall and WestRock had properly pleaded the citizenship of the LLCs and such citizenship was diverse from Taylor, complete diversity is still lacking because Defendants failed to demonstrate Randall was fraudulently joined. The burden on the removing party to prove fraudulent joinder is a “heavy one.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (per curiam) (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). “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.” Id. at 1333 (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440–41 (11th Cir. 1983), superseded by statute, 28 U.S.C. § 1441(a), on other grounds as recognized in Stillwell, 663 F.3d at 1333). The pleading standard for surviving fraudulent joinder “is a lax one.” Id. at 1333. Rather than the plausibility standard, which requires the complaint to “state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), a claim of fraudulent joinder can be defeated by a showing that the claim has “a possibility of stating a valid cause of action,” Stillwell, 663 F.3d at 1333 (quoting Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)). When assessing possibility, the Eleventh Circuit has stated that “[i]n considering possible state law claims, possible must mean more than such a possibility that a designated residence can be hit by a meteor tonight. That is possible. Surely, as in other instances, reason and common sense have some role.” Legg v. Wyeth, 428 F.3d 1317, 1325 n.5 (11th Cir. 2005) (internal citations omitted). In other words, “[t]he potential for legal liability ‘must be reasonable, not merely theoretical.’ ” Id. (quoting Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)).

To determine whether the claim possibly states a valid cause of action, the court must look to the pleading standards of the state court rather than federal court. Id. at 1334. The Supreme Court of Alabama has stated that “a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Haywood v. Alexander, 121 So. 3d 972, 974–75 (Ala. 2013) (quoting Nance v. Matthews, 662 So. 2d 297, 299 (Ala. 1993)). Further, any ambiguities in the state substantive law must be resolved in the plaintiff’s favor. Stillwell, 663 F.3d at 1333.

At this stage, Taylor states a possible claim against Randall for negligent selection.7 At the pleading stage, a plaintiff need only allege that a defendant’s negligence caused harm to the plaintiff. See, e.g., Knight v. Burns, Kirkley & Williams Constr. Co., 331 So. 2d 651, 654–55 (Ala. 1976); McKelvin v. Smith, 85 So. 3d 386, 390 (Ala. Civ. App. 2010). Here, Taylor alleges that Randall was negligent when he contracted with Trevor Logging and Trevor Trucking even though he knew or should have known about the safety issues with their tractor/trailers and alleges that Randall’s negligence caused Emma Taylor’s death. Alabama recognizes the tort of negligent selection. See McGinnis v. Jim Walter Homes, Inc., 800 So. 2d 140, 148 (Ala. 2001). Defendants fail to show that under no set of facts could Taylor state a claim for negligent selection against Randall. Therefore, Defendants have failed to meet their burden as to fraudulent joinder.

Because Taylor and Randall are both citizens of Alabama,8 and Defendants did not meet their burden to demonstrate Randall was fraudulently joined, the parties lack complete diversity. Therefore, the Court lacks subject matter jurisdiction over this case. Accordingly, Taylor’s Motion to Remand is due to be granted on this ground as well.

C. Removal Requires Unanimous Consent of Defendants
*4 While it is clear to the Court that Randall and WestRock failed to obtain unanimous consent for removal as required by 28 U.S.C. § 1446(b), this error is procedural and not jurisdictional. See In re Uniroyal Goodrich Tire Co., 104 F.3d 322, 324 (11th Cir. 1997). Accordingly, the Court reserves any further discussion other than to acknowledge that unanimous consent of the served Defendants was not obtained.

IV. CONCLUSION
For the reasons stated above, the Court lacks jurisdiction in this case. Accordingly, Taylor’s Motion to Remand (doc. 19) is due to be granted, and this case is due to be remanded to the Circuit Court of Sumter County, Alabama. Taylor’s Motion to Strike Untimely Notices of Consent (doc. 29) is due to be terminated as moot. Additionally, WestRock, Randall, Calyx, and Daniel Logging’s Motion to File Exhibit Under Seal (doc. 24) is due to be resolved by the state court as this Court lacks subject matter jurisdiction over this case. A separate order consistent with this opinion will be entered contemporaneously herewith.

DONE and ORDERED on October 2, 2020.

L. Scott Coogler

United States District Judge

202892
All Citations
Slip Copy, 2020 WL 5880189

Footnotes

1
The following facts are taken from Plaintiff Patricia Taylor’s Complaint (doc. 1-1), and the Court makes no ruling on their veracity.

2
No other defendants joined Randall and WestRock in their Notice of Removal.

3
Randall and WestRock also argue that Calyx, Daniel Logging, Randall, and WestRock were fraudulently joined, but they fail to elaborate on this assertion in their Notice of Removal or any subsequent briefs other than to state generally that there are no viable claims against them.

4
While the parties did not raise this as an issue, the Court has an obligation to ensure it has subject matter jurisdiction over a matter, therefore it may sua sponte address the citizenship of the LLCs. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).

5
WestRock states in the Notice of Removal that it “is a corporation organized and existing under and by virtue of the laws of the State of Delaware, having its principal place of business in Georgia.” (Doc. 1 ¶ 21.) However, WestRock is listed as an LLC, not a corporation; therefore, WestRock’s citizenship is determined by the citizenship of its members. WestRock indicates the citizenship of its members in a separate disclosure statement. (See doc. 4.) WestRock’s members are citizens of Delaware and Georgia, therefore WestRock’s citizenship is not an issue.

6
Additionally, Trevor Trucking, Trevor Logging, Daniel Logging, and Calyx filed Corporate Disclosure Statements that do not discuss the citizenship of their members. (See docs. 7, 9, 13, 15.)

7
Taylor brings multiple claims against Randall. However, because she has the possibility of stating a claim against Randall for negligent selection, it is unnecessary to evaluate the sufficiency of every claim.

8
Taylor, as the representative of the Estate of Emma Taylor, is “deemed to be a citizen only of the same State as the decedent.” 28 U.S.C. § 1332(c)(2). Emma Taylor was a citizen of Alabama.