Estate of Mergl v. Lee

638 F.Supp.3d 545

ESTATE OF Madison Rose MERGL BYAND THROUGH David MERGL, Administrator, Plaintiff, v. Tiffany Victoria LEE, a Maryland Resident; Larry Beddingfield;Larry Beddingfield & Sons Trucking, a North Carolina sole proprietorship;Butterball LLC, North Carolina limited liability corporation;Kennedy Brothers Logisitics, Inc., a North Carolina Corporation;and Kennedy Brothers, Inc., a North Carolina Corporation, Defendants.

NO. 5:22-CV-218-FL

United States District Court, E.D. North Carolina, Western Division

Signed October 31, 2022

Eric Laurence Doggett, Strickland Law, Goldsboro, NC, for Plaintiff.

Samuel H. MacRae, MacRae Law Firm, PLLC, Wilmington, NC, for Defendant Tiffany Victoria Lee.

Christopher M. Kelly, Gallivan, White & Boyd, P.A., Charlotte, NC, for Defendants Larry Beddingfield, Larry Beddingfield & Sons Trucking.

Claude Rob Wilson, Hedrick Gardner Kincheloe & Garofalo LLP, Charlotte, NC, F. Marshall Wall, James C. Thornton, Cranfill Sumner & Hartzog LLP, Raleigh, NC, Preston William Rollero, Brown Law LLP, Raleigh, NC, for Defendant Butterball LLC.

Pardis Camarda, Geoffrey A. Losee, Rountree Losee LLP, Wilmington, NC, for Defendant Kennedy Brothers Logistics, Inc.

Elizabeth Hayes Overmann, McAngus Goudelock & Courie, PLLC, Raleigh, NC, for Defendant Kennedy Brothers, Inc.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on plaintiff's motion to remand. (DE 28). The issues raised have been briefed fully, and in this posture, are ripe for ruling. For the following reasons, plaintiff's motion to remand is granted.

STATEMENT OF THE CASE

Plaintiff initiated this tort action in the Superior Court Division for Wayne County, North Carolina March 9, 2022. The dispute arises out of a collision that occurred between a motor vehicle driven by defendant Tiffany Victoria Lee ("Lee") and a commercial tractor-trailer driven by defendant Larry Beddingfield ("Beddingfield"). Plaintiff asserts personal injury and wrongful death claims against all defendants under state law.¹

Defendant Kennedy Brothers Logistics, Inc. ("KBL") removed the action to this court May 31, 2022, asserting that the court has original jurisdiction over plaintiff's claims against it as they are preempted by the Federal Aviation Administration Authorization Act ("FAAAA"). The notice provides that defendants Kennedy Brothers, Inc., Beddingfield, and Butterball, LLC ("Butterball") joined in removal, but defendant Lee did not.

Plaintiff thereafter filed the instant motion to remand the case for failure to obtain the timely consent of defendant Lee. Plaintiff also requests that the court require KBL to pay reasonable attorneys' fees pursuant to 28 U.S.C. § 1447. Defendant KBL responded in opposition, and plaintiff replied.

STATEMENT OF FACTS

Defendant KBL is an authorized broker certified by the United States Department of Transportation, and in that capacity brokered the weekly transportation of defendant Butterball's poultry product by defendant Beddingfield from Mount Olive, North Carolina to Pageland, South Carolina. (Compl. (DE 1-2) ¶¶ 113-14). On one such trip, driving westbound along Highway 55 at 12:48 a.m. on March 13, 2020, defendant Beddingfield in a commercial tractor-trailer struck a vehicle driven by defendant Lee. (Id. ¶¶ 11, 13, 32). The force of the impact caused defendant Lee's vehicle to travel over 150 feet and overturn. (Id. ¶ 33). Plaintiff's decedent was ejected from defendant Lee's vehicle, and died at the scene of the collision as a result of the injuries she sustained. (Id. ¶¶ 34-35).

COURT'S DISCUSSION

A. Motion to Remand

1. Standard of Review

In any case removed from state court, "[i]f 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).² "The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). "Because removal jurisdiction raises significant federalism concerns, [the court] must strictly construe removal jurisdiction." Id. "If federal jurisdiction is doubtful, a remand is necessary." Id.; see Palisades Collections LLC v. Shorts, 552 F.3d 327, 336 (4th Cir. 2008) (recognizing the court's "duty to construe removal jurisdiction strictly and resolve doubts in favor of remand").

2. Analysis

It is undisputed that defendant KBL did not obtain unanimous consent from co-defendants for removal. Plaintiff argues that under 28 U.S.C. § 1446(b) removal is thus improper, and remand required. Defendant KBL contends 28 U.S.C. § 1441(c), and not 28 U.S.C. § 1446(b), applies, and under 28 U.S.C. § 1441(c) it is not obligated to obtain consent from the other defendants.

"Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction and requires the defendant seeking removal to file a timely notice of removal stating the grounds for removal with the appropriate federal district court." Barbour v. In'l Union, 640 F.3d 599, 605 (4th Cir. 2011) (en banc), abrogated on other grounds by 28 U.S.C. § 1446(b)(2)(B). "The Supreme Court has construed [§ 1446(b)] to include a 'unanimity requirement,' such that all defendants must consent to removal." Mayo v. Bd. of Educ. of Prince George's Cty., 713 F.3d 735, 741 (4th Cir. 2013). Thus, under § 1446(b), if any defendant properly joined and served does not consent to removal, the action cannot be removed, and remand is required. See id.

28 U.S.C. § 1441(c) creates an exception to the unanimity requirement, providing:

(1) If a civil action includes—

(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and

(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).

28 U.S.C. § 1441(c). "Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1)." 28 U.S.C. § 1441(c)(2). Thus, under § 1441(c), where a claim under federal question jurisdiction, as described under subparagraph (A), is joined with a claim not within the federal court's jurisdiction, as described under (B), only those defendants against whom a claim under federal question jurisdiction is asserted need join in the removal. 28 U.S.C. § 1441(c)(1). Thereafter, pursuant to § 1441(c)(2), the court must sever and remand the claims over which the court lacks jurisdiction. 28 U.S.C. § 1441(c)(2).

a. Federal Question Jurisdiction Under 28 U.S.C. § 1441(c)(1)(A)

In its notice of removal, defendant KBL contends plaintiff's claims against it are preempted by the FAAAA and so arise under federal law, thereby satisfying 28 U.S.C. § 1441(c)(1)(A). The court disagrees.

The presence or absence of federal-question jurisdiction "is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The well-pleaded complaint rule "makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. "[A] case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Id. at 393, 107 S.Ct. 2425.

"There does exist, however, an independent corollary to the well-pleaded complaint rule, known as the complete pre-emption doctrine." Id. The complete preemption doctrine is triggered when "the pre-emptive force of a statute is so extraordinary that it converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Id. "Unlike ordinary preemption, which does not create federal subject matter jurisdiction, complete preemption has the effect of transforming a state-law cause of action into one arising under federal law because Congress has occupied the field so thoroughly as to leave no room for state-law causes of action at all." Johnson v. Am. Towers, LLC, 781 F.3d 693, 702 (4th Cir. 2015); Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 ("Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.").

"[C]omplete preemption only applies in a very narrow range of cases." Johnson v. Am. Towers, LLC, 781 F.3d 693, 701 (4th Cir. 2015). Its limited applicability is evidenced by the fact that the Supreme Court has found only three statutes to have the requisite extraordinary preemptive force to support complete preemption, none of them applicable here. See id.; Marcus v. AT&T Corp., 138 F.3d 46, 54 (2d Cir. 1998) (listing the three areas in which the Supreme Court has applied the complete preemption doctrine). For the complete preemption doctrine to apply, Congress must "clearly manifest[ ] an intent to make causes of action . . . removable to federal court." Johnson, 781 F.3d at 701.

"[T]he sine qua non of complete preemption is a pre-existing federal cause of action that can be brought in the district courts." Id. at 702. "Indeed, the Supreme Court has emphasized that for the purposes of complete preemption, the preempting statute must provide 'the exclusive cause of action' for claims in the area that the statute preempts." Id. (quoting Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 9, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (emphasis...