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Filed: Aug. 10, 2016
Latest Update: Aug. 10, 2016
Summary: MEMORANDUM OPINION AND ORDER W. HAROLD ALBRITTON , Senior District Judge . This cause is before the court on a Motion to Alter, Amend, or Vacate, or, in the Alternative, Motion for Certification of the Controlling Issue of Law and for Stay of the Proceedings Pursuant to 28 U.S.C. 1292(b) (Doc. #20) filed by the Plaintiff, Kindal Callen, as personal representative for the Estate of Scott Callen. The case was removed by Daimler Trucks to this court on the basis of diversity subject matter
Summary: MEMORANDUM OPINION AND ORDER W. HAROLD ALBRITTON , Senior District Judge . This cause is before the court on a Motion to Alter, Amend, or Vacate, or, in the Alternative, Motion for Certification of the Controlling Issue of Law and for Stay of the Proceedings Pursuant to 28 U.S.C. 1292(b) (Doc. #20) filed by the Plaintiff, Kindal Callen, as personal representative for the Estate of Scott Callen. The case was removed by Daimler Trucks to this court on the basis of diversity subject matter j..
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MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
This cause is before the court on a Motion to Alter, Amend, or Vacate, or, in the Alternative, Motion for Certification of the Controlling Issue of Law and for Stay of the Proceedings Pursuant to 28 U.S.C. § 1292(b) (Doc. #20) filed by the Plaintiff, Kindal Callen, as personal representative for the Estate of Scott Callen.
The case was removed by Daimler Trucks to this court on the basis of diversity subject matter jurisdiction on April 29, 2016. Daimler Trucks removed the case stating that the removal was timely because it was filed within thirty days of receipt of "other paper," in the form of deposition testimony, that first established the removability of the case, and that the non-diverse defendant was fraudulently joined. 28 U.S.C. § 1446(b).
The court denied Motions to Remand, finding that the removal was timely and that Defendant Callen Enterprises, Inc. was fraudulently joined. (Doc. #18). The Plaintiff asks the court to revisit those findings, or to certify questions for interlocutory appeal. Defendant Daimler Trucks North America, LLC opposes the Plaintiff's motion, including the alternative requested relief.
This court previously concluded that this case is to be distinguished from another case granting remand, Jernigan v. City of Eufaula, Ala., 123 F.Supp.3d 1322 (M.D. Ala. 2015). In Jernigan the allegedly fraudulently-joined defendant had admitted liability after the case was filed, raising a question of first impression under Rule 20 of whether a question of law or fact common to all defendants existed in the case. Jernigan, 123 F. Supp. 3d. at 1329, 1330. The court concluded that if misjoinder had occurred, it was not present at the time the case was filed, but had arisen as a consequence of actions taken by the defendant and, therefore, the misjoinder was not egregious misjoinder. Id.
In this case, benefits were being paid and no additional benefits were due to be paid at the time the Complaint was filed, and, therefore, the facts are distinct from Jernigan, and there is fraudulent joinder. The court is not persuaded to depart from that reasoning by the Plaintiff's argument that Alabama law allows an employee to file a third-party claim against an employer, where the only evidence in this case is that the employer had met all obligations imposed on it by law, so there was no common question of fact between Daimler Trucks and Callen Enterprises at the time the case was filed, and removed.
In her Motion to Reconsider, the Plaintiff argues that the removal was not timely because it was based on depositions of the representative of Callen Enterprises and the Worker's Compensation carrier. The Notice of Removal, however, also relied on the deposition of Kindal Callen, Plaintiff, and attached excerpts from her April 14, 2016 deposition, in which she stated that she did not know of any benefits that were not being paid on her claims for the death of her husband. (Doc. #1-8). This information was both in addition to the information previously provided to Daimler Trucks that claims were being paid, and was deposition testimony from the Plaintiff. The court concludes, therefore, that the removal was timely, as the case was removed based on "other paper," within the meaning of 28 U.S.C. §1446. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 & n. 62 (11th Cir. 2007) (deposition testimony is other paper).
The court does not find that the issues presented present a controlling question of law on which there is a substantial ground for difference of opinion, and that an appeal would materially advance the ultimate termination of the litigation within the meaning of 28 U.S.C. § 1929(b).
Accordingly, the Motion to Alter, Amend, or Vacate, or, in the Alternative, Motion for Certification of the Controlling Issue of Law and for Stay is ORDERED DENIED.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
