Wehmeyer v. AT & T Corp.

SUMMERHAYS JUDGE

JURISDICTIONAL RULING

PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE

Defendant MasTec Network Solutions, LLC^[1] removed the captioned lawsuit to this forum, alleging that the court has subject-matter jurisdiction under 28 U.S.C. § 1332 because the parties are diverse in citizenship and the amount in controversy exceeds $75, 000. This Court reviewed the pleadings, found that the amount-in-controversy requirement was satisfied, ^[2] but could not determine whether the parties were diverse in citizenship.^[3] This Court ordered MasTec to file a brief addressing the parties' citizenship and afforded the other parties an opportunity to respond.^[4]

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MasTec filed two briefs in support of federal court jurisdiction, ^[5] and the plaintiff responded.^[6] Defendants AT&T Corporation, Verizon Wireless Services, LLC, and Standard Wireless Group, LLC did not file briefs.

Based on the information set forth in the parties' briefing, this Court now finds that the parties are diverse in citizenship. The plaintiff is a Washington citizen; AT&T Corporation is a citizen of New York and Texas; Verizon Wireless Services, LLC is a citizen of Delaware and New York; MasTec is a Florida citizen; the intervenor, Zurich American Insurance Company of Illinois is a citizen of New York and Illinois; and Standard Wireless Group, LLC is a Louisiana citizen.

MasTec argued that even though Standard Wireless is a Louisiana citizen, its presence in the suit does not preclude removal. The forum-defendant rule is codified at 28 U.S.C. § 1441(b)(2) and reads as follows:

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed 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

This statute specifies that an action otherwise removable solely on the basis of diversity jurisdiction - such as this one - may not be removed if any "properly joined" defendant is a citizen of the state in which the action was brought. "Thus, a

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properly joined in-state defendant will prevent removal, but an improperly joined instate defendant will not."^[7] Therefore, at first blush, it would seem that the inclusion of Standard Wireless as a defendant in this suit would preclude removal. But MasTec argued that Standard Wireless was the plaintiff's employer, was immune from suit, and therefore was improperly joined. In this case, however, it is not necessary to find that Standard Wireless was improperly joined in order to conclude that this case can remain in federal court.

The forum-defendant rule is procedural in nature and is not a jurisdictional rule.^[8] A court cannot sua sponte remand a case because of a procedural defect; instead, a procedural defect must be raised in a motion to remand filed by a party to the lawsuit within thirty days after the filing of the notice of removal.^[9] If no motion to remand is timely filed, the procedural defect is waived. More specifically, the forum-defendant rule is waived if no objection to removal is asserted in a timely-filed remand motion.^[10] In this case, no party filed a motion to remand this action

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after MasTec filed the notice of removal. Therefore, any objection that a party might have to the removal of this case because one of the defendants is a Louisiana citizen was waived, and this Court cannot assert that objection on its own. In other words, MasTec's "violation of the forum-defendant rule does not provide a basis for the District Court to remand sua sponte."^[11] Therefore, regardless of whether Standard Wireless was improperly joined, the court has subject-matter jurisdiction over this action because the amount in controversy exceeds $75, 00 and the parties are diverse in citizenship.

In its briefing, MasTec additionally argued that the plaintiff has no cause of action in tort against Standard Wireless because Standard Wireless was the plaintiff's employer at the time of the accident and further argued that the plaintiff's exclusive remedy against Standard Wireless is found in Louisiana's workers' compensation laws.^[12] MasTec implicitly acknowledged that an employee can sue his employer for intentional torts but argued that the plaintiff's intentional acts...