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Sheffield v. J.T. Thorpe & Son, Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

August 18, 2014

ANGELA SHEFFIELD, Plaintiff,
v.
J.T. THORPE & SON, INC.; and SCOTT AND SONS CONSTRUCTION AND MECHANICAL SERVICES, INC., Defendants.

MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION FOR REMAND

GLEN H. DAVIDSON, District Judge.

Presently before this Court is Plaintiffs motion to remand the case to state court [13]. Upon due consideration, the Court is of the opinion that the motion should be granted due to lack of diversity jurisdiction.

A. Factual and Procedural Background

On December 9, 2013, Plaintiff Angela Sheffield ("Plaintiff') filed a complaint in the Circuit Court of Monroe County, Mississippi, against Defendants J.T. Thorpe & Son, Inc. ("J.T. Thorpe"); Scott and Sons Construction and Mechanical Services, Inc. ("Scott and Sons"); and Specialty Foundry Products, Inc. ("Specialty Foundry") (collectively, "Defendants") to recover for injuries she sustained while employed by Mueller Copper Tube Company in Fulton, Mississippi, a company that manufactures copper tubing and copper fittings. Plaintiff alleges she was a caster and worked on a casting unit that processes molten copper as part of the manufacturing production. Plaintiff further alleges that Mueller Copper Tube Company contracted with Defendants to collectively repair, reline, rebuild, and renovate the cast furnace and launder shell and trough from the receiving well to the cast head on the caster unit. Plaintiff avers that Defendants also designed and built a new working platform for the caster unit. Plaintiff further avers that while performing her caster duties on the working platform, Plaintiff lost her footing and balance and both of her feet slipped into the extremely hot molten copper in the launder trough. Plaintiff alleges that Defendants acted negligently and grossly negligently in the repairing, relining, rebuilding, and renovating of the cast furnace and launder shell and trough and in the design and fabrication of the working platform.

On January 9, 2014, J.T. Thorpe filed a notice of removal [1] on the basis of diversity jurisdiction; Specialty Foundry subsequently joined in the notice of removal. On February 5, 2014, Plaintiff filed the present motion to remand the case to state court. J.T. Thorpe and Specialty Foundry filed separate responses. Plaintiff filed a reply. Subsequently, Plaintiff filed a motion for remand-related discovery [25], which was subsequently granted by the United States Magistrate Judge in an Order [26] dated March 14, 2014. Following remand-related discovery, Plaintiff filed a supplemental reply [38] to her remand motion; Scott and Sons joined in the other Defendants' earlier filed responses to Plaintiff's remand motion; J.T. Thorpe filed a response to Plaintiff's supplemental reply to her remand motion; and Plaintiff filed a further reply. The parties have attached several exhibits to their remand papers.

B. Standard of Review

The removal statute provides in pertinent part:

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.

28 U.S.C. § 1441(a). A case may be remanded upon a motion filed within thirty days after the filing of the notice of removal on any defect except subject matter jurisdiction, which can be raised at any time by any party or sua sponte by the district court. Wacha via Bank, NA. v. PICC Prop. & Cas. Co., 328 F.App'x 946, 947 (5th Cir. 2009). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

Any ambiguities are construed against removal and in favor of remand. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)). The party who seeks to remove the case to federal court bears the burden of showing that federal jurisdiction exists and that removal was proper. Id. (citations omitted).

C Discussion

Federal diversity jurisdiction requires complete diversity between all plaintiffs and all defendants and an amount in controversy that exceeds $75, 000.00. See 28 U.S.C. § 1332(a). Plaintiff contends that removal is improper and remand is warranted because the notice of removal was procedurally defective and complete diversity of citizenship does not exist between Plaintiff and Defendants.[1] Plaintiff also seeks costs and attorney's fees incurred in filing the present motion to remand.

First, Plaintiff contends that the notice of removal is procedurally defective because Scott and Sons did not join in the notice or consent to the removal, despite the fact that prior to the filing of the notice of removal Scott and Sons admitted actual notice of this suit by the affidavit of its registered agent, Paul Knox. See Knox Aff. [1-2]. Defendants concede both that Scott and Sons did not join in or consent to the removal and that Scott and Sons is a Mississippi resident, but argue that the notice of removal was not procedurally ...


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