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Cook v. Quickspray, Inc.

United States District Court, S.D. Mississippi, Southern Division

September 15, 2014

EDWARD COOK, Plaintiff,
v.
QUICKSPRAY, INC., PPG INDUSTRIES, EDGEN MURRAY, ACCU-FAB AND CONSTRUCTION, INC., A/K/A ACCU-FAB MANUFACTURING, LLC, AKA ACCU-FAB MANUFACTURING, Defendants,

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND SUPPLEMENTAL MOTION TO REMAND

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is Plaintiff Edward Cook's Motion to Remand [21] and Supplemental Motion to Remand [23]. Defendants PPG Industries ("PPG"), Quickspray, Inc. ("Quickspray"), and Accu-Fab Construction, Inc. ("Accu-Fab") have filed Responses. Defendant Edgen Murray ("Edgen") has joined in Quickspray's Response, and Plaintiff has filed a Reply. Having considered the Motions, the Responses and Reply, the pleadings, and relevant legal authority, the Court finds that Plaintiff's Motion to Remand [21] and Supplemental Motion to Remand [23] should be denied.

I. BACKGROUND

This suit involves personal injuries suffered by Plaintiff Edward Cook ("Plaintiff") arising out of an industrial accident which occurred in Moss Point, Mississippi, on April 10, 2012. Pl.'s Compl. [1-1] at 1. Plaintiff was employed by Global Employment Services, Inc. ("Global"), and was assigned to work at Accu-Fab's facility as a temporary contract worker. Id. at 3, 5. Accu-Fab had entered into a "Contract Labor Agreement" with Global, which provided Global would:

(a) Assume responsibility for the payment of wages to each of the employees furnished to [Accu-Fab].
(b) Assume responsibility for the payment of payroll taxes and the collection of taxes from payroll for each employee furnished to [Accu-Fab].
(c) Retain the right of direction and control over the management of Worker's Compensation claims, claim filing, and related procedures and statutory compliance with respect to employees furnished to [Accu-Fab].
(d) Implement and comply with all appropriate state and federal laws relating to reporting, sponsoring, filing, and maintaining benefit and welfare plans and be solely responsible for providing benefit and welfare plans for employees provided to [Accu-Fab].
(e) Perform drug testing of all employee's prior to being sent to [Accu-Fab] (if so desired).

Contract Labor Agreement [21-1] at p. 32.

Plaintiff's job at Accu-Fab's facility was to sandblast and spray a protective coating called "Amercoat" on large pipes. Pl.'s Compl. [1-1] at 3.[1] On the day of the accident giving rise to this suit, Plaintiff was working on a project that required coating large sections of pipe for Defendant Edgen. Id.; Aff. of Paul Bosarge [26-1] at p. 2. The work took place in the "blast yard, " an area of the Accu-Fab facility which was segregated from other parts of the facility so as not to interfere with other projects. Pl.'s Compl. [1-1] at 3; Aff. of Bosarge [26-1] at p. 2. Plaintiff was filling a Quickspray hopper with the "Amercoat" coating when the material line connecting the pump to the spray gun ruptured. Pl.'s Compl. [1-1] at 3. Plaintiff was then drenched with "Amercoat" from the pump and the fully loaded Quickspray hopper. Id.

On August 20, 2013, Plaintiff filed suit in the Circuit Court of Jackson County, Mississippi, alleging negligence and gross negligence claims against Defendants Quickspray, PPG, Accu-Fab, and Edgen, and products liability claims against Defendants Quickspray and PPG. Pl.'s Compl. [1-1] at pp. 7-11. The Complaint asserts that as a result of Defendants' tortious conduct, Plaintiff developed a silica-related lung disease. Defendant Quickspray filed a Notice of Removal [1] on October 8, 2013, arguing that the Court has subject matter jurisdiction based on diversity of citizenship because in-state Defendant Accu-Fab has been improperly joined, as it is exempt from liability under the "loaned servant" doctrine.[2] PPG and Edgen consented to the removal. PPG filed a Supplemental Notice of Removal [8] on October 15, 2013, arguing an alternative theory of improper joinder, namely that Accu-Fab has been improperly joined because it is not liable to Plaintiff under the "up-the-line" immunity doctrine. Plaintiff now seeks remand to state court.

II. DISCUSSION

A. Removal ...


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