Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION
WILLIE LEE HUNT, )
)
Plaintiff, )
) v. ) CIVIL ACTION NO. 13-00412-CG-N
)
COMFORT SYSTEMS (USA) )
SOUTHEAST, INC., et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
This аction is before the Court on a motion (doc. 6) filed by Comfort Systems (USA) Southeast, Inc. (“Comfort Systems”), a defendant herein, to sever and remand to the Circuit Court of Mobile County, Alabаma, Count I of plaintiff’s Complaint (doc. 1- 2), and on a sua sponte review of the Court’s subject matter jurisdiction. These matters have been referred to the undersigned Magistrate Judge pursuant tо 28 U.S.C. § 636 (b)(1)(B) and Standing Order 6 of this Court. Upon consideration of all pertinent portions of the record, it is recommended that this entire action be REMANDED for lack of jurisdiction.
*2 I. Background.
This action was removed from the Circuit Court of Mobile County, Alabama, by Defendant Yates Construction Co., Inc. on August 9, 2013 (doc. 1). Removal was “pursuant to 28 U.S.C. §1332, et. seq. [and] based on complete diversity of citizenship between Plaintiff, who is a resident citizen of the State of Alabama, Defendant “Yates,” who as named in this matter is a corporate resident of the State of Alabama but whо has been incorrectly, improperly and/or fraudulently included in this matter and Defendant Comfort Systems, a corporate resident of the State of Florida.” (Doc. 1 at ¶ 8) [2] . Yates acknowledged that it is a “resident of the State of Alabama” and is not diverse from the plaintiff, “who is a resident citizen of the State of Alabama.” ( Id .) Yates has also аcknowledged that the only other named and served defendant in this action is Comfort Systems “a corporation organized and existing in the State of Florida,” which “has not joined in this removal.” ( Id. at ¶¶ 3, 4). [3]
On August 16, 2013, Comfort Systems filed its motion to sever and remand Count I of plaintiff’s complaint (doc. 6). The motion is predicated on the well established prohibition against removal to federal court of claims arising under workers’ *3 compensation laws. [4] The Court entered an order (doc. 9) on August 19, 2013, for the plaintiff to show cause why Comfort Systems’ motion ought not to be granted. Plaintiff has not filed a written response. Instead, W.G. Yates & Sons Construction Co. (“W.G. Yates”) filed a response on August 20, 2013, in which it claimed to be erroneously named in the Complaint as Yatеs Construction Co., Inc. (“Yates”), and agreed that Count I should be severed and remanded (doc. 10 at ¶ 4). Despite its appearance in this manner, W.G. Yates is not named as a рarty and has not, in any event, divulged its citizenship in any filing in this case. [5] Consequently, the Court entered an order (doc. 12) on August 21, 2013, regarding the issue of its subject matter jurisdiction, specifically quеstioning the existence of diversity jurisdiction in this case.
On August 26, 2013, Defendant Yates filed notice of the parties’ consent to remand (doc. 13) and therein clarified that the proper defendant, W.G. Yates, is a Mississippi company that has not been added or substituted as a party defendant, and did not remove the action to this Court. Yates, the non-diverse defendant, was the entity that removed the case.
II. Analysis.
*4
Diversity jurisdiction pursuant to 28 U.S.C. § 1332 “requires complete diversity;
every plaintiff
must be diverse from
every defendant
. Triggs v. John Crump Toyota,
Inc.,
Although the plaintiff and the non-diverse defendant, Yates, now agree that W.G. Yates shоuld be “joined and Yates [] dismissed as a defendant” (doc. 13 at ¶ 9), this Court was never vested with diversity jurisdiction upon removal and is, therefore, without authority to effectuate any substitution оf parties, even if they are diverse. The law on this issue was recently summarized by this Court as follows:
Section 1441(a) “require[s] that the case be fit for federal adjudication at the time the removal petition is filed ....” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73 (1996); accord Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 772 (11 th Cir. 2010) (“[T]he jurisdictional determination ... is based only on the facts as they exist at the time of removal .”); [Adventure Outdoors, Inc. v.] Bloomberg, 552 F.3d [1290,] 1294–95 [(11 th Cir. 2008)] (“The existence of federal jurisdiction is tested at the time of removal .”); Leonard v. Enterprise Rent a Car,279 F.3d 967 , 972 (11 th Cir. 2002) (“[W]e note that for purposes of this challenge to the subject matter jurisdiction of the district court, the critical time is the date of removal....”); Tillman v. R.J. Reynolds Tobacco,253 F.3d 1302 , 1306 n. 1 (11 Cir. *5 2001) (“[T]hе question of diversity subject matter jurisdiction is determined on the plaintiff's pleadings at the time of removal .”); Burns v. Windsor Insurance Co.,31 F.3d 1092 , 1097 n. 13 (11 Cir. 1994) ( “Jurisdictional facts are assessed on the basis of the plaintiff's complaint as of the time of removal .”) (emphasis in original).
Heard v. American Alternative Ins. Corp.,
This action, in its entirety, must be remandеd because it was improvidently removed by Yates Construction Co., Inc., a non-diverse resident defendant and, consequently, this Court lacks subject matter jurisdiction. “Counsel for the Plaintiff and *6 Counsel for Comfort Systems are in agreement with the remand of this action to the Circuit Court of Mobile, Alabama.” (Doc. 13 at ¶ 10).
CONCLUSION
For the reasons set forth above, it is the recommendation of the undersigned that Comfort Systems’ motion (doc. 6) be DENIED but that this action be REMANDED , in its entirety, to the Circuit Court of Mobile County, Alabama, for lack of subject matter jurisdiction.
Notice of Right to File Objections A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recоmmendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specifiс. The Rules further oprovide that “[a] party may respond to another party’s objections within 14 days after being served with a copy.” FED. R. CIV. P. 72(b).
DONE this 30 day of August, 2013.
/ s/Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
Notes
[1] Alabama Power Co. v. U.S. Dept. of Energy,
[2] Yates’ improper or fraudulent joinder argument is predicated on the contention that “it was completely uninvolved in the subject project in which Plaintiff was allegedly injured.” (Doc. 1 at ¶ 9, emphasis in original).
[3] Yates argues that Comfort Systems’ joinder was “not necеssary because Plaintiff’s claims against the two Defendants are “ separate and independent” . . . where Plaintiff has asserted a negligence claim against Defendant ‘Yates’ and a “ separate and independent” workers’ compеnsation claim against Defendant Comfort Systems.” (Doc. 1 at ¶¶3, 6, emphasis in original).
[4] 28 U.S.C. § 1445(c) (“A civil action in any State court arising under the workmen's
compensation laws of such State may not be removed to any district court of the United States.”); Wilson
v. Dominion Management, LLC.,
[5] An affidavit (doc. 1-1) filed by Jason Wold as an attachment to the Notice of Removal (doc. 1) states only that he is an employee of W.G. Yates, is a resident citizen of Harrison County, Mississippi, and that “W.G. Yates . . . was one of several prime contractors on the Gulfquest project” and Yates “had absolutely no involvement in the Gulfquest project” (doc. 1-1 at ¶¶ 1, 2, 4, 6). There is no mention of the citizenship or state of incorporation of W.G. Yates.