United States District Court, W.D. Arkansas, El Dorado Division
O. HICKEY UNITED STATES DISTRICT JUDGE
the Court are Plaintiff's Motion to Remand (ECF No. 27)
and Motion to Remand as to Nibco, Inc.'s Amended Notice
of Removal. ECF No. 39. Separate Defendant Nibco, Inc.
(hereinafter “Nibco”) has filed responses to both
motions. ECF Nos. 36, 41. Plaintiff has filed replies to
Nibco's responses. ECF Nos. 38, 44. The Court finds this
matter ripe for consideration.
filed his original complaint against ten John Doe defendants
on June 25, 2015, in the Circuit Court of Union County,
Arkansas. ECF No. 1-3, p. 1. In his initial complaint,
Plaintiff alleged that while working for Chemtura
Corporation, doing business as Great Lakes Chemical
Corporation, a pneumatic pump malfunctioned and caused him to
be exposed to bromine, causing severe chemical burns. On
February 1, 2016, Plaintiff filed an Amended Complaint
(hereinafter “First Amended Complaint”),
asserting that Separate Defendant Graco, Inc. (hereinafter
“Graco”) was the manufacturer and assembler of
the pneumatic pump at issue and that Separate Defendant
Southern Design and Mechanical, Inc. (hereinafter
“Southern Design”) sold the pneumatic pump to
Great Lakes Chemical Corporation. ECF No. 1-3, pp. 7, 10.
Plaintiff states that Graco is incorporated under Minnesota
law and that Graco maintains its principal place of business
in Minnesota. ECF No. 1-3, p. 7, ¶ 6. Plaintiff further
states that Southern Design was incorporated in Arkansas and
maintains its principal place of business in Arkansas. ECF
No. 1-3, p. 7, ¶ 5. Plaintiff alleged causes of action
for negligence, strict liability, breach of implied warranty
of merchantability, and breach of warranty for a particular
April 11, 2017, Plaintiff filed a Second Amended Complaint
which included Graco and Southern Design as defendants and
also added Nibco and Separate Defendant Parker-Hannifan
Corporation (hereinafter “Parker-Hannifan”) as
defendants. ECF No. 1-3, p. 47. The Second Amended Complaint
alleged that Nibco and Parker-Hannifan designed,
manufactured, distributed, and/or sold various components
that were used on or in conjunction with the pneumatic pump
at issue. ECF No. 1-3, p. 50. Plaintiff alleges that Nibco
was incorporated in Indiana. ECF No. 1-3, p. 48, ¶ 8.
Plaintiff further states that Parker-Hannifan was organized
under the laws of Ohio. ECF No. 1-3, p. 49, ¶ 9.
March 14, 2018, Nibco removed this action from the Union
County Circuit Court on the basis of diversity jurisdicition.
ECF No. 1. Nibco asserts that the only non-diverse defendant-
Southern Design-was fraudulently joined and that, therefore,
this Court has diversity jurisdiction. ECF No. 1, ¶ 8.
On March 30, 2018, Plaintiff filed the instant Motion to
Remand. ECF No. 27. Plaintiff asserts that the Notice of
Removal was untimely and that Southern Design was not
fraudulently joined and that, accordingly, this Court lacks
jurisdiction. On April 6, 2018, Nibco filed, without leave of
Court, an Amended Notice of Removal re-asserting that removal
was timely, but in the alternative that the time limit for
removal on the basis of diversity is inapplicable because
Plaintiff acted in bad faith to prevent timely removal. ECF
No. 29, ¶ 29. On April 17, 2018, Plaintiff filed the
instant Motion to Remand as to Nibco, Inc.'s Amended
Notice of Removal, reasserting the arguments made in his
initial Motion to Remand and further denying Nibco's
contention that he acted in bad faith. ECF No. 39. Plaintiff
further argues that the Amended Notice of Removal was not
properly brought before the Court and therefore should not be
may remove civil actions to federal court only if the claims
could have been originally filed in federal court.”
Cent. Iowa Power Coop. v. Midwest Indep. Transmission
Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009).
“The proponents of federal jurisdiction bear ‘the
burden to establish federal subject matter jurisdiction,'
and ‘all doubts about federal jurisdiction must be
resolved in favor of remand.'” Moore v. Kan.
City Pub. Sch., 828 F.3d 687, 691 (8th Cir. 2016)
(quoting Cent. Iowa Power Coop., 561 F.3d at 912).
28 U.S.C. § 1446(b)(1), a notice of removal must
“be filed within 30 days after the receipt by the
defendant . . . of a copy of the initial pleading setting
forth the claim upon which such action or proceeding is
based[.]” If an action is not initially removable under
§ 1446(b)(1), “a notice of removal may be filed
within thirty days after receipt by the defendant . . . of a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable.” 28 U.S.C §
1446(b)(3). However, “a case may not be removed under
subsection (b)(3) on the basis of jurisdiction conferred by
section 1332 more than 1 year after commencement of the
action, unless the district court finds that the plaintiff
has acted in bad faith in order to prevent a defendant from
removing the action.” 28 U.S.C. § 1446(c)(1).
Court will first determine whether Nibco's removal of
this matter was timely and then, if necessary, address the
issue of fraudulent joinder.
Timeliness of Removal
contends that this action was commenced on June 25, 2015-the
date on which the initial complaint was filed against John
Doe defendants. Accordingly, Plaintiff argues that the
one-year period for removal based on diversity expired on
June 25, 2016, and, therefore, Nibco's removal on March
14, 2018, was untimely. Alternatively, Plaintiff argues that
at the very latest, this action commenced on February 1,
2016, when he filed his First Amended Complaint, and that
Nibco's removal is untimely based on that date.
response, Nibco asserts that this case was timely removed
because it was removed within one year of the date on which
Nibco was added as a Defendant on April 11, 2017.
Alternatively, Nibco asserts that Plaintiff acted in bad
faith to ...