Adkins v. Consolidation Coal Co.
856 F. Supp. 2d 817
S.D.W. Va2012Background
- Plaintiff-filed wrongful-death action in Kanawha County; defendants removed citing diversity jurisdiction.
- Nondiverse individual defendants include West Virginia residents; diverse plaintiffs are only the widow and a Pennsylvania-defendant parent.
- Decedent died July 29, 2010 at Loveridge #22 mine; several Consolation/Consol employees listed as defendants.
- Complaint asserts seven counts, including deliberate-intent, negligence, vicarious liability, conspiracy, and damages requests.
- Plaintiff moves to remand, arguing nondiverse defendants destroy complete diversity; defendants move to dismiss under Rule 12(b)(6) and assert fraudulent joinder.
- Court grants remand, concluding fraudulent-joinder exists for five nondiverse individuals and that there is at least a glimmer of hope against the remaining nondiverse defendant Moore.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fraudulent joinder defeats diversity here | Adkins shows nondiverse defendants destroy complete diversity | Nondiverse defendants are fraudulently joined to defeat jurisdiction | Remand granted; fraudulent-joinder shown for five nondiverse defendants |
| Whether Count II deliberate-intent claim can be pursued against nondiverse defendants under WV law | §23-4-2(d)(2)(ii) allows co-employees to be liable | Only employers may be liable under §23-4-2(d)(2)(ii) | Count II against five nondiverse defendants lacks possibility of recovery; fraudulent-joinder established as to these defendants |
| Whether Count III negligence against Consol and nondiverse Moore survives immunity | Moore and Consol liable for safety duties | Immunity under WV Workers’ Comp Act extends to agents/subagents | Glimmer of hope for recovery against Moore; no complete dismissal on immunity grounds; remand warranted |
| Whether Counts IV (vicarious liability) and V (conspiracy) survive immunities against nondiverse defendants | Immunity does not bar all liability | Immunity forecloses recovery for these counts | No recovery against five nondiverse defendants due to immunity; supports fraudulent-joinder finding |
Key Cases Cited
- Yarnevic v. Brink’s, Inc., 102 F.3d 753 (4th Cir. 1996) (jurisdictional removal standard; 28 U.S.C. § 1441)
- Mayes v. Rapoport, 198 F.3d 457 (4th Cir. 1999) (fraudulent joinder standard; heavy burden on moving party)
- Hartley v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999) (jurisdictional inquiry favored; glimmer of hope standard)
- Marshall v. Manville Sales Corp., 6 F.3d 229 (4th Cir. 1993) (fraudulent joinder—no recovery necessity to defeat jurisdiction)
- Weekly v. Olin Corp., 681 F.Supp. 346 (N.D.W.Va. 1987) (co-employee liability under WV §23-4-2(d)(2) debated; remand decision depends on interpretation)
- Evans v. CDX Servs., LLC, 528 F.Supp.2d 599 (S.D. W.Va. 2007) (co-employees not subject to §23-4-2(d)(2)(ii) immunity in some views)
- Bennett v. Buckner, 149 S.E.2d 201 (W. Va. 1966) (legislative intent to extend employer immunity to others)