United States District Court, D. Arizona
ORDER
Honorable Steven P. Logan United States District Judge
Before
the Court is Plaintiff Alecia Devore's
(“Plaintiff”) Motion to Remand (the
“Motion”). (Doc. 9) The Motion was fully briefed
on May 31, 2018. (Docs. 22, 32) For the reasons set forth
below, the Motion is granted.
I.
Background
This
suit is based on the wrongful death of Plaintiff's son,
Nathaniel Walter Johnson Devore. (Doc. 1-3 at 3) This case
was removed to the Court on April 12, 2018 by a notice of
removal filed by Defendants Maria Ontiveros De Fregoso and
Tremex Trans. (Doc. 1 at 1) On May, 10, 2018, Plaintiff filed
the Motion seeking to remand the case to the Maricopa County
Superior Court. (Doc. 9) Plaintiff alleges that Defendant
United Parcel Service Incorporated, Defendant UPS Ground
Freight Incorporated (together, “UPS”) and
Defendant Nelio Occeus (“Occeus”) failed to join
in the removal as required by 28 U.S.C. § 1446(b)(2)(A).
II.
Standard of Review
State
court cases that could have been filed in federal court as
diversity jurisdiction cases can be removed to federal court
if (i) no defendant is a resident of the forum state; (ii) a
defendant files a notice of removal within thirty days of
receiving the plaintiff's complaint; and (iii) all
defendants consent to removal. 28 U.S.C. § 1441(a); 28
U.S.C. § 1441(b); 28 U.S.C. § 1446(a-b);
Proctor v. Vishay Intertech. Inc., 584 F.3d 1208,
1225 (9th Cir. 2009). However, “the filing of a notice
of removal [by one defendant] can be effective [as to all
defendants] without individual consent documents on behalf of
each defendant. One defendant's timely removal notice
containing an averment of the other defendants' consent
and signed by an attorney of record is sufficient.”
Schayes v. T.D. Serv. Co. of Arizona, 2011 WL
1793161, at 3 (D. Ariz. May 11, 2011). The removing party
bears the burden of establishing federal subject matter
jurisdiction, and there is a strong presumption against
removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992); Emrich v. Touche Ross &
Co., 846 F.2d 1190, 1195 (9th Cir. 1988).
III.
Discussion
A.
Occeus
It is
undisputed that Occeus did not join the removal application
within the 30-day limit imposed by statute. Plaintiff argues
that Occeus' failure to join in the removal requires this
case to be remanded to state court. The Defendants argue that
Occeus' failure to join does not require remand because
the Plaintiff cannot establish a viable claim against Occeus,
and, alternatively, Occeus' status as a nominal party
does not require his joinder in the removal. (Doc. 22 at 3,
5)
From
the Complaint (Doc. 1-3), it is clear that Plaintiff alleges
a cause of action against Occeus for negligence. (Doc. 1-3 at
12) The Defendants argue that Occeus is a co-employee of
decedent Devore, and this co-employee status provides him
with immunity from certain causes of action for negligence
arising out of the scope of employment. (Doc. 22 at 2) Iowa
Code section 85.20 preempts any claim for negligence against
a co-employee unless the plaintiff pleads that the
co-employee was grossly negligent amounting to wanton
neglect.[1] Iowa Code § 85.20; Good v. Tyson
Foods, Inc., 2006 WL 581143, at 2 (N.D. Iowa 2006). This
means that plaintiffs seeking to pursue co-employee
negligence suits must prove gross negligence amounting to
wanton neglect in order to establish a claim for negligence.
On the
face of the Complaint, it is clear that the Plaintiff does
not plead facts sufficient to demonstrate gross negligence by
Occeus. (Doc. 1-3 at 12) Under Iowa Code section 85.20, the
three elements necessary to establish a co-employee's
gross negligence are (1) knowledge of the peril to be
apprehended; (2) knowledge that injury is a probable, as
opposed to a possible, result of the danger; and (3) a
conscious failure to avoid the peril. Walker v.
Mlakar, 489 N.W.2d 401, 403 (Iowa 1992). Throughout the
Complaint, the Plaintiff references the “carelessness,
negligence and misconduct” of Occeus, but never alleges
the requisite element of knowledge necessary to establish a
claim for gross negligence. (Doc. 1-3 at 6) Instead, the
Plaintiff attempts to bolster the Complaint by arguing the
elements of gross negligence in its reply in support of the
Motion. However, the Plaintiff's attempt to supplement
its ordinary negligence claim outside of the Complaint must
fail. Accordingly, the Court must find that Plaintiff has
failed to plead the requisite elements necessary to bring a
viable cause of action against Occeus for gross negligence.
It is
well settled that the requirement that all defendants consent
to removal “does not apply to nominal, unknown or
fraudulently joined parties.” United Computer Sys.,
Inc. v. AT & T Corp., 298 F.3d 756, 762 (9th Cir.
2002). Several Courts of Appeals have crafted various
definitions of a nominal party. See Ryan v. State Bd. of
Elections of Ill., 661 F.2d 1130, 1134 (7th Cir. 1981)
(requiring that a defendant be indispensable in order to
avoid the nominal party exception); Farias v. Bexar Cnty.
Bd. of Trustees for Mental Health Mental Retardation
Servs., 925 F.2d 866, 871 (5th Cir. 1991) (requiring a
defendant be indispensable or necessary); Thorn v.
Amalgamated Transit Union, 305 F.3d 826, 833 (8th
Cir.2002) (describing nominal defendants as “those
against whom no real relief is sought”); Hartford
Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d
255, 260 (4th Cir. 2013) (stating that a nominal party has no
immediately apparent stake in the litigation either prior or
subsequent to the act of removal).
The
Defendants argue that Occeus is a nominal party because there
is no reasonable basis for Occeus to be held liable for a
claim of ordinary negligence. (Doc. 22 at 5) The Court finds
that Occeus is a nominal party for the purposes of removal
because the Plaintiff has failed to plead a viable cause of
action against Occeus as a co-employee of the decedent
pursuant to Iowa Code section 85.20. Based on the plain
language of the statute, a co-employee cannot be held liable
for a claim of ordinary negligence. Thus, Occeus is not an
indispensable party to this action, as any of the other
Defendants can be held liable pursuant to Iowa Code section
85.20. Based on the facts in the Complaint, there is no
reasonable basis for predicting that Occeus could be held
...