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Powers v. Wireless Horizon, Inc.

United States District Court, E.D. Missouri, Eastern Division

February 10, 2017

JODI LYNNE POWERS, et al., Plaintiff,
v.
WIRELESS HORIZON, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         On April 8, 2016, Defendant Robert G. Linzoain (“Linzoain”) removed this cause of action from the Circuit Court of St. Charles County, Missouri, citing diversity jurisdiction under 28 U.S.C. § 1332(a)(1). Shortly after the matter was removed to this Court, Jodi Lynne Powers, the wife of Decedent Martin Powers (“Decedent”), individually and as next friend for their child, D.A.P. (collectively “Plaintiffs”), filed a Motion to Remand (ECF No. 18), requesting that the matter be remanded back to state court. Linzoain opposes the motion, and the issues are fully briefed. All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c).

         I. Procedural Background

         On March 8, 2016, Plaintiffs filed a Petition for Damages for Wrongful Death (“Petition”) in the Circuit Court of St. Charles County, Missouri, arising from the collapse of a communications tower on March 25, 2014, in Pottawatomie County, Kansas, which killed Decedent and Mark Garner (“Garner”), his co-worker.[1] (ECF No. 1-1) Both Decedent and Garner filed earlier lawsuits arising out of the same accident. Garner v. Union Pacific Railroad Co., et al., 4:15 cv 733 AGF (“Garner I”); Powers, et al. v. Union Pacific R.R. Co., et al., Cause Number 4:15 cv 955 AGF (“Powers I”).

         At the time of the collapse, Decedent was employed by Wireless Horizon, Inc. (“Wireless) as a tower climber. The Petition states claims for co-employee liability for wrongful death against Rick Heisler (“R. Heisler”) (Count I), Troy Heisler (Count II) (“T. Heisler”), Linzoain (Count III), Damion Ripple (“Ripple”) (Count IV), Jason Cooper (“Cooper”) (Count V), Joshua Hackmann (“Hackmann”)[2] (Count VI), conduct with the specific purpose of injury against Wireless (Count VII), and punitive damages against all defendants (Count VIII). (Id. at ¶¶ 33-105) All the named parties, except for Linzoain, are Missouri residents. (Id. at ¶¶ 1-10) Linzoain is a resident of the State of Arizona. (Id. at ¶ 7)

         Removal in this case was premised on diversity jurisdiction and the perceived amount in controversy, which requires an amount greater than $75, 000 and complete diversity of citizenship among the litigants, 28 U.S.C. § 1332(a). Linzoain invoked this Court's diversity jurisdiction, averring that the Missouri Defendants were fraudulently joined and so their Missouri citizenship has no bearing and must be disregarded by this Court in determining diversity jurisdiction. Defendant Linzoain asserts no other basis for federal jurisdiction. 28 U.S.C. § 1332(a).

         II. Factual Background

         For purposes of the motion now before the Court, the record as set forth in the Petition and the exhibits filed by the parties establishes the following facts.[3] Plaintiffs' wrongful death claims arise from the collapse of a communications tower on March 25, 2014, in Pottawatomie County, Kansas, which killed Decedent and Garner. (Id. at ¶¶ 3, 13) At the time of the collapse, Decedent, Linzoain, Garner, R. Heisler, T. Heisler, Ripple, Cooper, and Hackmann were employed by Wireless, which was a subcontractor working on behalf of Union Pacific Railroad Company (“Union Pacific”), the owner of the communications tower. (Id. at ¶¶ 15-17) Decedent had been working for Wireless for less than two months and Garner less than five months. (Id. at ¶ 22) While employed by Wireless, Decedent worked nine days in Missouri and fourteen days in Kansas. (ECF No. 22-2) R. Heisler, [4] as President of Wireless, signed the contract with Sabre Towers for demolition of the old tower and construction of the new tower. (ECF No. 1-1 at ¶ 2) T. Heisler, the safety manager, trained the crews and inspected equipment off-site. (Id. at ¶¶ 6, 20) Linzoain was the tower foreman/site supervisor with 20 years' experience. (Id. at ¶¶ 7) Ripple was the winch truck driver at the job worksite. (Id. at ¶ 8) Cooper, a corporate vice-president and the project manager, was responsible for lining up vendors and delivering equipment and materials to the tower deconstruction site. (Id. at ¶¶ 9, 18) Hackmann was the project administrator for the tower deconstruction project. (Id. at ¶¶ 10, 19)

         The crew working at the job site dismantling the tower included Decedent and Garner, climbers on the tower, Linzoain, the foreman, and Ripple, the winch operator. (Id. at ¶ 21) As part of the deconstruction process of one of the old towers, the workers were disconnecting a ten-foot diameter dish located at an elevation of 240 feet, installing a gin pole[5] on the tower, then lowering the dish, and beginning the dismantling of the old tower, section by section, with the assistance of the gin pole. (Id. at ¶¶ 23-24) A wire rope sling was wrapped around one of the tower legs without any protection and connected to the top block for jumping the gin pole. (Id. at ¶¶ 25-26) The legs of the tower consisted of steel angles, including legs, diagonals, and struts with sharp edges. (Id. at ¶ 25) The Petition states that the wire rope sling supporting the gin pole and wrapped around one of the tower legs was damaged and dangerous before it was first used on the tower deconstruction project and before it was used on March 25, 2014, the day of the accident. (Id. at ¶¶ 27-28)

         At approximately 9:30 a.m. on March 25, 2014, Garner was located above the gin pole near the top of the tower, and Decedent was located approximately twenty feet below the pole. (Id. at ¶ 30) While the gin pole was in the process of being jumped, the wire rope sling broke, causing the gin pole to fall, the tower to collapse, and both Decedent and Garner to fall to the ground to their deaths. (Id. at ¶¶ 30-31)

         A commercial insurance supervisor at Zurich American Insurance Company of Illinois (“Zurich”) filed a Report on Injury with the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation (“Missouri Workers' Compensation”), on behalf of Decedent after the accident. (ECF No. 19-1) A Claim for Compensation was filed on behalf of Decedent with the Missouri Division of Workers' Compensation. (ECF N0. 19-7) In the Answer to Claim for Compensation completed by an attorney for Zurich, Wireless and Zurich admitted that “employer and employee were operating under and subject to the terms and provisions of the Missouri Workers' Compensation Law and that all liability, if any, of said employer under said law was fully insured by the above named insurer.” (ECF No. 19-8 at 1) Wireless, as Decedent's insured, reported a claim with Zurich on the day of the accident. (ECF No. 19-9)

         In his deposition, R. Heisler testified that all workers' compensation benefits available to Decedent have been paid through the Missouri Division of Workers' Compensation, and Wireless has not filed for any benefits in Kansas stemming from Decedent's death. (ECF No. 19-3 at 15-18) R. Heisler's deposition testimony establishes that Wireless' employees were paid in Missouri and subject to Missouri employment taxes; T. Heisler trained the crew for the tower deconstruction project; Wireless dispatched Decedent from Missouri to job sites; and Wireless did not have to purchase any new insurance or make any modifications to existing coverage for the tower deconstruction project. (Id. at 15-16, 39, 41, 63, 65, 89, 103, 128-35; ECF No. 19-6 at 65) R. Heisler further testified that Wireless has several workers' compensation insurance policies for various states including Kansas and Missouri. (Id. at 14)

         In his deposition, Ripple testified that on March 23, 24, or 25, 2014, either Garner or Linzoain would have been responsible for checking the rigging and inspecting the wire slings, and they had input in selecting the sling to be used on the gin pole. (ECF No. 22-5 at 15, 46-47) Ripple also testified that Linzoain was competent to make sure the slings were safe, that the rigging was being done correctly, and that the procedures were being followed based on his twenty years of experience. (Id. at 16) Although Ripple was not 100% certain, he thought Linzoain last looked at the rigging of the gin pole the morning of the accident. (Id. at 21)

         The Daily Safety Inspection Reports dated March 24 and 25, 2014, show that the equipment and rigging were inspected in Kansas. (ECF No. 22-4)

         In a report titled Investigation of the March 25, 2014 Failure of Gin Pole Rigging, and Collapse of Cellular Towers at Blaine, KS, published by U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) in August 2014, OSHA found that the acts and omissions by Wireless at the job site played a substantial part in the wrongful death of Decedent. (ECF No. 19-2) In relevant part, OSHA found that the tower collapse was caused by the failure of the rope swing, the failure to inspect the tower for structural integrity, and the poor management of the job site left to the discretion of the foreman. (Id. at 35)

         III. Legal Standards and Summary of Parties' Arguments

         Linzoain removed the instant case to this Court premised on diversity jurisdiction, averring that the Missouri Defendants were fraudulently joined such that their Missouri citizenship must be disregarded by this Court in determining diversity jurisdiction. Linzoain asserts no other basis for federal jurisdiction. 28 U.S.C. § 1332(a).

         Title 28, United States Code, Section 1441(b) allows a defendant to remove a civil action from state court to federal court based on diversity jurisdiction only if none of the properly joined defendants are citizens of the state in which the original action is filed. Applied here, there is no removal jurisdiction over this case if one of the defendants is a citizen of Missouri. 28 U.S.C. § 1441(b). Linzoain, as the party invoking jurisdiction, bears the burden of proving that all prerequisites to jurisdiction are satisfied. Central Iowa Power Co-op v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009). Removal statutes are strictly construed, and any doubts about the propriety of removal and the existence of federal jurisdiction are resolved in favor of remand. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007).

         “[A] plaintiff cannot defeat a defendant's right of removal by fraudulently joining a defendant who has no real connection with the controversy.” Knudson v. Systems Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011) (internal quotation marks and citation omitted). “The purpose of this exception is to strike a balance between the plaintiff's right to select a particular forum and the defendant's right to remove the case to federal court.” Id. (cited source omitted). “Ordinarily, to prove that a plaintiff fraudulently joined a diversity-destroying defendant, [the Eighth Circuit Court of Appeals has] required a defendant seeking removal to prove that plaintiff's claim against the diversity-destroying defendant had ‘no reasonable basis in fact and law.'” Knudson, 634 F.3d at 977 (quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)). Under this standard, “if it is clear under governing state law that the complaint does not state a cause of action against the non-diverse defendant, the joinder is fraudulent and federal ...


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