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Williams Transport, LLC v. Driver Pipeline Co., Inc.

United States District Court, Fifth Circuit

December 12, 2013

WILLIAMS TRANSPORT, LLC, Plaintiff,
v.
DRIVER PIPELINE COMPANY, INC., BUCKLEY EQUIPMENT SERVICES, INC., AND XYZ INDIVIDUALS AND ABC ENTITIES, Defendants.

ORDER

DANIEL P. JORDAN, III, District Judge.

This contract and business-tort case is before the Court on Plaintiff Williams Transport, LLC's Motion to Remand [4], Defendant Driver Pipeline Company, Inc.'s Motion to Strike [8], and Defendant Buckley Equipment Services, Inc.'s Motion to Dismiss [17]. For the reasons that follow, the motion to remand is denied, the motion to strike is granted in part and denied in part, and the motion to dismiss is granted.

I. Facts and Procedural History

In June 2009, Williams and Driver entered into a contract under which Williams was to clear a 44-mile right-of-way in Jasper County, Mississippi. Driver ultimately terminated its contract with Williams. Williams alleges that Defendant Buckley Equipment Services, Inc., "tort[i]ously, wrongfully and knowingly conspired with and convinced Driver Pipeline to wrongfully terminate Driver Pipeline's contract with Plaintiff and assign the remaining portions of Plaintiff's work and contract to Buckley." Compl. [1-4] ¶ 12.

Williams filed suit in Jasper County Circuit Court on November 15, 2010, against Driver, Buckley, and John Doe Defendants, alleging state-law-contract and tort claims. Williams served Driver on November 24, 2010, but did not effect service upon Buckley, the only non-diverse defendant. Driver timely removed the case to this Court on December 22, 2010. See Williams Transport, LLC v. Driver Pipeline, Inc., No. 4:10cv216-CWR-FKB. In its Notice of Removal, Driver contended that Williams had no viable cause of action against Buckley, thereby making its joinder improper and resulting in diversity jurisdiction. Williams moved to remand, arguing that it could state a claim against Buckley. On January 31, 2011, the Court entered an Agreed Order of Remand.

Following remand, the parties litigated an arbitration issue that ultimately resulted in an opinion from the Mississippi Supreme Court that was mandated January 31, 2013. See Driver Pipeline Co., Inc. v. Williams Transport, LLC, 104 So.3d 845, 850 (Miss. 2012). Three months later, on April 2, 2013, Williams filed a motion for scheduling conference in state court, which it served on Driver but not Buckley. Mot. for Rule 26(c) Conference [1-2]. The motion included a proposed scheduling order that listed an August 2013 trial date. At that point, Buckley had never been served with process. Driver viewed the pleading as an indication that Williams had abandoned its claims against Buckley and re-removed the case on April 23, 2013. Williams then moved to remand on May 16, 2013.

The final procedural twist began September 27, 2013, when Williams finally issued a summons for Buckley-more than two years after the time to do so under Mississippi Rule of Civil Procedure 4(h) and Federal Rule of Civil Procedure 4(m) expired. Buckley moved to dismiss [17], and that motion has now been fully briefed. Although the matter is set for hearing December 20, the Court concludes that the record as a whole adequately demonstrates the Court's subject-matter jurisdiction eliminating the need for a hearing.

II. Analysis

Before addressing Buckley's motion to dismiss, the Court must determine whether subject-matter jurisdiction exists. That said, the issues raised in the motion to dismiss are in some ways relevant to the jurisdictional issue.

A. Motion to Remand

Driver premises federal jurisdiction on diversity of citizenship. District courts have jurisdiction over civil actions between "citizens of different States." 28 U.S.C. § 1332(a)(1). The diversity statute requires complete diversity between all named plaintiffs and all named defendants. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005). However, "a narrow exception to the rule" exists where the non-diverse defendant was improperly joined. Smallwood v. Ill. Cent. R.R. Co., 352 F.3d 220, 222 (5th Cir. 2003). "The burden of demonstrating improper joinder is a heavy one and is placed upon the party seeking removal." Lorenz v. Tex. Workforce Comm'n, 211 F.Appx. 242, 245 (5th Cir. 2006) (citing McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005)). The test for improper joinder is "whether there is any reasonable basis for predicting the plaintiff[] might be able to recover against... the in-state defendant." Jones v. Gen. Motors Corp., No. 3:06cv608-DPJ-JCS, 2007 WL 1610478, at *1 (S.D.Miss. June 1, 2007) (quoting Love v. Ford Motor Co., 212 F.Appx. 292, 294 (5th Cir. 2006)).

A district court should ordinarily resolve an improper joinder claim by conducting a Rule 12(b)(6)-type analysis. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004). The Court "must then evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Similarly, the Court must resolve all ambiguities in controlling state law in the plaintiff's favor. Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003) (citations omitted). Finally, "there are cases, hopefully few in number, in which the plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder." Smallwood, 385 F.3d at 573. In such cases, the district court has the discretion to "pierce the pleadings" and conduct a summary inquiry. Id. The Court concludes that a summary inquiry is appropriate given the procedural history of this case.

1. Successive Removals

Williams contends that Driver may not again seek removal on the same basis as its earlier removal. While that argument may be true with respect to the Driver's argument that Williams cannot state a factual claim against Buckley, it is not true with respect to the arguments that Williams never served Buckley and the claims are now time barred. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996) ("We have already established that section 1446(b) allows Infax to file successive removals based on different factual basis."); Jamison v. Kerr-McGee Corp., 151 F.Supp.2d 742, ...


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