Keane v. Northland Tool & Equipment, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Nicholaus Keane
v. Civil No. 19-cv-212-LM
Opinion No. 2019 DNH 092
Northland Tool &
Equipment, Inc. et al.
O R D E R
The question before the court is whether to remand this
case back to state court on the basis of its improper removal.
The court answers this in the affirmative and remands the case
to Hillsborough County Superior Court Northern District.
BACKGROUND
In March 2018, Keane suffered severe injuries when he was
pulled into a rotating lathe at work. He claims that the
injuries caused permanent impairment and disability and in
excess of $500,000 in medical expenses.
As a citizen of New Hampshire, Keane filed this action in
Hillsborough County Superior Court Northern District against
four defendants: (1) Okuma Corporation, the designer and
manufacturer of the lathe; (2) Okuma America Corporation ("Okuma
America"), allegedly responsible for distribution and
maintenance of Okuma lathes in the United States; (3) Robert E.
Morris Company, LLC, allegedly the exclusive distributor of
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Okuma lathes in New Hampshire; and (4) Northland Tool &
Equipment, Inc. ("NTE"), which Keane alleges owned the lathe in
question at the time of his accident. Like Keane, NTE is a
citizen of New Hampshire.
Okuma America removed the case to this court, alleging
diversity jurisdiction. In the notice of removal, Okuma America
asserted simply that NTE was "improperly joined." NTE is the
only defendant with New Hampshire citizenship and, if permitted
to remain in the case, NTE would defeat diversity jurisdiction.
Keane has filed a motion to remand and requests compensatory
sanctions in the form of attorney's fees for what he contends
was a baseless removal.
DISCUSSION
A removed case must be remanded if the district court lacks
subject matter jurisdiction. 28 U.S.C. § 1447(c). The party
who removes a case from state court bears the burden of showing
that such federal jurisdiction exists. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n.3 (2006); Pruell v. Caritas Christi,
645 F.3d 81, 84 (1st Cir. 2011). Federal courts have diversity
jurisdiction under § 1332(a) when the amount in controversy
exceeds $75,000 and the action is between "citizens of different
states." 28 U.S.C. § 1332(a). In a case with multiple
defendants, the presence in the action of a single defendant
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that is a citizen of the same state as the plaintiff deprives
the district court of diversity jurisdiction over the entire
action. See Picciotto v. Cont’l Cas. Co., 512 F.3d 9, 21 (1st
Cir. 2008).
Here, Keane argues that remand is appropriate because Okuma
America cannot establish diversity jurisdiction. Okuma America
counters that Keane's joinder of NTE was improper and an attempt
to defeat diversity jurisdiction.1
I. Improper Joinder
To establish federal subject matter jurisdiction based upon
fraudulent or improper joinder, a defendant must plead improper
joinder in its notice of removal and demonstrate this claim on
the merits. See Nordin v. PB&J Resorts, LLC, No. 15-cv-509-JL,
2016 WL 2757696, at *2-3 (D.N.H. May 12, 2016). This rule is
consistent with the requirement that a "notice of removal must
make the basis for the federal court’s exercise of removal
1 The court notes that the citizenship of defendant Robert
E. Morris Company, LLC is not adequately alleged. While its
principal place of business is identified as Connecticut, none
of the parties has identified the citizenship of the company’s
members as required to determine the citizenship of a limited
liability corporation. See, e.g., D.B. Zwirn Special
Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124, 125 (1st
Cir. 2011). A notice of removal must clearly establish the
basis of the court’s subject matter jurisdiction. See infra at
4. Because the court lacks subject matter jurisdiction to hear
this case, it does not address further the issue with Robert E.
Morris Company, LLC’s citizenship.
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jurisdiction clear and contain enough information so that the
district judge can determine whether removal jurisdiction
exists." Id. at *2 (internal quotation marks and alteration
omitted).
Here, Okuma America must establish subject matter
jurisdiction by persuading the court that, although there is a
non-diverse party in the case, removal was appropriate because
plaintiff fraudulently or improperly joined a non-diverse
defendant. Okuma America makes no allegations of "fraud" on
Keane's behalf; rather, Okuma America alleges only that Keane
improperly joined NTE as a defendant.
A party seeking to remove a non-diverse party on the basis
of improper joinder must persuade the court that there is "no
reasonable possibility that the state's highest court would find
that the complaint states a cause of action upon which relief
may be granted against the non-diverse defendant." Universal
Truck & Equip. Co., Inc. v. Southworth-Milton, Inc., 765 F.3d
103, 108 (1st Cir. 2014). In the Fourth Circuit, the analysis
is described as follows: "Once the court identifies a glimmer of
hope for the plaintiff, the jurisdictional inquiry ends."
Harris v. State Farm Fire & Cas. Co., No. 5:31-CV-61-BO, 2013 WL
3356582, at *1 (E.D.N.C. July 3, 2013) (internal citation
omitted); see also Grancare, LLC v. Thrower by & through Mills,
889 F.3d 543, 548 (9th Cir. 2018) (remand appropriate in the
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Ninth Circuit where there is a "possibility" that a state court
would find a basis for the claim).
The party seeking removal must demonstrate improper joinder
by "clear and convincing evidence." Nordin, 2016 WL 2757696, at
*3 (internal quotations omitted). This is "a heavy burden."
Id. In deciding whether a party has met this "heavy burden,"
the court may consider additional evidence beyond the pleadings.
See id. Contested factual issues and "any doubt as to the
propriety of the removal" shall be resolved in favor of remand.
Id. at *1 (citation omitted); see also Arriaga v. New England
Gas Co., 483 F. Supp. 2d 177, 182 (D.R.I. 2007) (holding
disputed questions of fact must be resolved in plaintiff's favor
when considering whether removal proper).
Courts have found claims of fraudulent or improper joinder
to be waived if not sufficiently pleaded in the notice of
removal. See Pharm Indus. Average Wholesale Price Litig., 431
F. Supp. 2d 109, 118 (D. Mass. 2006). "A contention that the
plaintiff has engaged in fraudulent joinder must be alleged with
particularity by the party seeking removal and supported by
clear and convincing evidence." 14 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 3723.1 (Rev. 4th ed.
2018). Here, Okuma America pleaded improper joinder in its
notice of removal. However, it offered no facts in support of
its bald assertion. This appears to fall short of the mark and
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may constitute waiver. Even if Okuma America has sufficiently
pleaded improper joinder, however, Okuma America has failed to
meet its burden on the merits.
On the merits, Okuma America must show by "clear and
convincing evidence" that Keane's claim against NTE has no
reasonable basis and would not survive a motion to dismiss for
failure to state a claim. Nordin, 2016 WL 2757696, at *3. In
its objection to Keane's motion to remand, Okuma America argues
that NTE was not in business at the time of Keane's accident.
As such, Okuma America asserts that NTE could not have owned the
lathe and therefore cannot be held liable as alleged.
In support, Okuma America provides a letter from NTE's
counsel asserting that NTE is not in business and owns no
assets. Okuma America further offers a "Stock Redemption and
Real Estate Purchase Agreement" dated from 2003 and signed by
the current owner of Northland Tool & Electronics, Inc. and the
wife of its former owner. Paragraph 8 of that agreement states
that NTE and other entities are not "currently a going business
concern and none currently own any assets which are used or
useful to the business of the Corporation." Doc. no. 8 at 10.
Accordingly, Okuma America contends that there is no factual
basis for Keane's claim against NTE.
In reply, Keane provides records demonstrating that NTE has
consistently filed reports and paid fees to maintain active
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standing with the New Hampshire Secretary of State's Office,
including the years ranging from 2003 to present. Keane asserts
that these readily available public documents support a
reasonable possibility that NTE could have owned the lathe at
the time of the accident.
This disputed question of fact must be resolved in favor of
remand. Nordin, 2016 WL 2757696, at *1. The evidence proffered
by Keane suggests that NTE was a viable business entity, and
therefore could have owned the lathe at the time of the
accident. That is sufficient to defeat Okuma America's
argument. Universal Truck & Equip., 765 F.3d at 108.
In sum, the court concludes that Okuma America may have
waived its improper joinder argument by failing to mention any
basis for the argument in its notice of removal. Nonetheless,
even if Okuma America has sufficiently pleaded the argument,
Okuma America has failed on the merits to demonstrate that NTE
was improperly joined in this matter. As NTE is a citizen of
New Hampshire, the court lacks jurisdiction and remands the
case. See Picciotto, 512 F.3d at 21.
For these reasons, plaintiff's motion to remand is granted.
II. Request for Attorney's Fees
Keane requests that the court issue a "purely compensatory"
sanction for having to litigate Okuma America's baseless notice
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of removal. Doc. no. 3 at 6. The removal statute contemplates
such an award: "An order remanding the case may require payment
of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal." 28 U.S.C. § 1447(c).
Under § 1447(c), costs and fees may be awarded if the removing
party "lacked an objectively reasonable basis for seeking
removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). Such a determination is left to the court's sound
discretion, with no presumption in favor or against awarding
fees. Id. at 138-39.
In the notice of removal, Okuma America offered no basis
for its assertion that NTE was improperly joined. While the
notice states that NTE was Keane's employer, implying perhaps
that NTE could not be sued due to New Hampshire's workers'
compensation bar, Okuma America acknowledges that it knew at the
time of its filing that NTE was not Keane's employer. Thus, that
misstatement cannot serve as the basis for an "objectively
reasonable" finding here. While Okuma America's argument that
NTE was not an ongoing business was incorrect as a factual
matter, the court does not find it objectively unreasonable.
The court therefore denies the request for attorney's fees.
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CONCLUSION
For the foregoing reasons, plaintiff's motion to remand
(doc. no. 3) is granted.
SO ORDERED.
__________________________
Landya B. McCafferty
United States District Judge
June 10, 2019
cc: Counsel of Record
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