Hill v. Abdumuxtorov

1

SONYA HILL, Plaintiff, v. KHAMIDILLO ABDUMUXTOROV, ET AL., Defendants.

No. 1:22CV00004

United States District Court, W.D. Virginia, Abingdon Division

May 26, 2022

Mark T. Hurt, The Law Offices of Mark T. Hurt, Abingdon, Virginia for Plaintiff.

Lindsey A. Lewis and Elena Patarinski, Franklin &amp Prokopik, P.C., Richmond, Virginia, for Defendants.

OPINION

James P. Jones, Senior United States District Judge.

This civil action was removed from state court. The plaintiff has moved to remand the case. For the reasons that follow, I find that the case must be remanded to state court.

I.

The plaintiff asserts a state-law tort claim for injuries arising from a motor vehicle accident alleged to have been caused by the negligence of a tractor-trailer driver. The plaintiff sues four defendants: Khamidillo Abdumuxtorov, the alleged tractor-trailer driver and a citizen of North Carolina; Asirdin Bozorov, the alleged owner of the tractor-trailer, whose citizenship is unclear from the Complaint but whose address is in Illinois; Global Transport LLC, a Virginia limited liability company with its principal place of business in Harrisonburg, Virginia; and Global Transportation, LLC, a Colorado limited liability company with its principal place of business in Denver, Colorado. The plaintiff alleges that at the time of the accident, defendant Abdumuxtorov was an employee or agent or apparent agent of Global Transportation, Global Transport, “and/or” Bozorov and was acting within the scope of his employment “and/or” agency. Compl. ¶ 13, ECF No. 11.

The plaintiff filed this case in the Circuit Court for Smyth County, Virginia. The action was timely removed to this court by the defendants Abdumuxtrovov and Bozorov based on diversity of citizenship and amount in controversy. 28 U.S.C. § 1332.^[1] In the Notice of and Petition for Removal (Notice), the removing defendants state that the plaintiff is a citizen of West Virginia; Abdumuxtorov is a citizen of North Carolina; Bozorov is a citizen of Illinois; Global Transportation, LLC (Global Transportation) is a Colorado limited liability company consisting of one member, a natural person who is a citizen of Colorado; and Global Transport, LLC (Global Transport) is “a business entity organized and existing under the laws of the Commonwealth in Virginia with its headquarters located in the Commonwealth of Virginia.” Notice ¶¶ 8-12, ECF No. 1.

The defendants contend that the action is removable because Global Transport is a fraudulently joined. Attached to the Notice is the Police Crash Report regarding the underlying accident. The Police Crash Report lists the name of the defendant driver's carrier as “Global Transport LLC, ” but it indicates that the carrier's address is in Denver, Colorado. Id. ¶ 19; id. at Ex. 3. The defendants assert that the listed U.S. Department of Transportation (DOT) number is that of Global Transportation.

The plaintiff has moved to remand the case on the grounds that the forum defendant rule prohibits removal and that the defendants have failed to meet their burden in establishing fraudulent joinder.

The Motion to Remand has been fully briefed, argued, and is ripe for decision.

II.

A defendant “may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005). The second part of this rule is known as the forum defendant rule, which prevents removal pursuant to diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b)(2). Notably, courts are “obliged to construe removal jurisdiction strictly because of the significant federalism concerns implicated. Therefore, if federal jurisdiction is doubtful, a remand to state court is necessary.” Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir. 2005) (internal quotation marks, citations and alterations omitted).

Fraudulent joinder is a doctrine that provides an exception to the complete diversity requirement and forum defendant rule. It allows the federal court to disregard nondiverse parties in the state court action at the time of removal. Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). A defendant alleging fraudulent joinder bears a heavy burden. Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999). The defendant must show either that (1) “there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court” or that (2) “there has been outright fraud in the plaintiff's pleading of jurisdictional facts.” Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993) (internal quotation marks and citation omitted).

Here, the defendants do not allege outright fraud. Rather, the dispute centers on whether there is no possibility that the plaintiff will be able to establish a cause of action against Global Transport, the alleged home-state defendant.

As an initial matter, I note that the Notice fails to allege Global Transport's citizenship. It merely states that Global Transport was organized under the laws of the Commonwealth of Virginia with its headquarters located in Virginia.^[2] The citizenship of a limited liability company is determined not by its state of organization or principal place of business, but by the citizenship of each of its members. Cent. W.Va. Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011). Consequently, it is impossible for the court to determine if the forum defendant rule actually is applicable, or if the parties otherwise lack complete diversity, because there is no allegation as to the citizenship of Global Transport's member or members.^[3] However, because the defendants assert that Global Transport is a sham defendant and both the present defendants and the plaintiff seemingly concede that absent fraudulent joinder, the forum defendant rule would preclude federal court jurisdiction, I need not decided the issue on this ground.

Accordingly, I turn to whether the removing defendants have sufficiently established the “no possibility” prong of the fraudulent joinder test. “[J]oinder is fraudulent if it is clear that, under the law of the state in which the action is brought, the facts asserted by the plaintiff as the basis for the liability of the resident defendant could not possibly create such liability ....” Riverdale Baptist Church v. CertainTeed Corp., 349 F.Supp.2d. 943, 948 (D. Md. 2004) (internal quotation marks, citation and alterations omitted). At least one court in this circuit has interpreted the “no possibility” standard as meaning “‘there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Linnin v. Michielsens, 372 F.Supp.2d 811, 819 (E.D. Va. 2005) (quoting Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004)). “[T]he defendant must show that the plaintiff cannot establish a claim against the nondiverse defendant even after resolving all issues of fact and law in the plaintiff's favor.” Marshall, 6 F.3d at 232. “Any shades of gray are resolved in favor of remand.” Adkins ex rel. Adkins v. Consolidation Coal Co., 856 F.Supp.2d 817, 820 (S.D. W.Va. 2012).

It is not pellucid as to what facts a district court may consider when fraudulent joinder is asserted. The Fourth Circuit has stated that courts are “not bound by the allegations of the pleadings, but may instead consider the entire record, and determine the basis of joinder by any means available.” Aids Counseling & Testing Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (internal quotation marks and citations omitted). This has been referred to as a “watered-down summary judgment analysis.” Garver v. Holbrook, 546 F.Supp.3d 465, 472 (E.D. Va. 2021).

However, as some courts have recognized, the cases in which the Fourth Circuit considered the entire record involved an attempt to add a non-diverse defendant after removal. Allard v. Laroya, 163 F.Supp.3d 309, 312 (E.D. Va. 2016) (citing Fourth Circuit cases); Cardoza v. Med. Device Bus. Servs., Inc., 389 F.Supp.3d 399, 409 (W.D. Va. 2019) (noting that where a plaintiff named a nondiverse defendant in its initial complaint in state court, the jurisdictional inquiry is “more stringent and more favorable toward remand”); McDonald v. Altice Tech. Servs. U.S. Corp., No. 2:19-cv-00784, 2020 WL 5665795, at *4 n.5 (S.D. W.Va. Sept. 23, 2020) (explaining that in the Fourth Circuit's recent fraudulent joinder opinions, it did not cite to the standard allowing the court to consider the entire record).

The principle that the court should not consider documents beyond the pleadings when the plaintiff names the alleged non-diverse defendant in the initial complaint might result in remand in this case since the plaintiff alleges in the Complaint that the defendant driver, Abdumuxtorov, was acting as an employee or agent or apparent agent of Global Transport, LLC at the time of the accident.^[4] If this fact is proven, there is a possibility that defendant Global Transport will be found liable under Virginia law. See, e.g., Sanchez v. Medicorp Health Sys., 618 S.E.2d 331, 334 (Va. 2005) (“In Virginia, the doctrine of respondeat superior imposes tort liability on an employer for the negligent acts of its employees, i.e., its servants, but not for the negligent acts of an independent contractor.”).

I recognize that the plaintiff's allegations regarding the employment relationship likely do not satisfy the federal pleading...