United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) GRANTING PLAINTIFF'S MOTION
TO REMAND, AND (2) REMANDING THE MATTER TO STATE
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
is a Motion to Remand filed by Plaintiff Phillip Trokey. Doc.
#6. The motion is granted, and the matter is remanded to the
Circuit Court of Jackson County, Missouri.
suit arises from personal injuries suffered by Trokey during
his employment with Installtec, as the result of a lift
tipping over. Defendant Great Plains Roofing and Sheet M Inc.
(“Great Plains”) allegedly supplied the lift to
Installec, and Defendant Spencer Plumb allegedly operated the
lift during the incident. Trokey filed a Petition in the
Circuit Court of Jackson County, Missouri, on September 4,
2015. Complete diversity of citizenship was lacking as Trokey
and Plumb were citizens of Missouri. However, on October 6,
2016, Trokey dismissed his claims against Plumb after the two
parties negotiated a settlement. On November 7, 2016, Great
Plains removed the case to this court. Trokey seeks remand to
removal is predicated on diversity of citizenship, the case
cannot be removed “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). “The statute is a product of Congress'
different treatment for diversity cases (as opposed to
federal question cases): it is a legislative judgment that a
suit governed by state law that is filed in state court
should remain in state court if it has been pending and
consuming state judicial resources for more than one
year.” Bush v. State Farm Fire & Cas. Co.,
No. 13-0550-CV-W-ODS, 2013 WL 3755776, at *2 (W.D. Mo. July
16, 2013). “This legislative judgment dictates that
diversity cases remain in state court unless bad faith is
evidenced; the one year limit is not obviated by
considerations of fairness, equity, or some other basis for
ascertaining what seems ‘right, ' but only by bad
faith.” Id. at *3.
argues for the Court to interpret the meaning of “bad
faith” using the standard for fraudulent joinder.
However, courts address “bad faith” and
“fraudulent joinder” independently of each other.
Bajaba, LLC v. Gen. Steel Domestic Sales, LLC, No.
14-CV-4057, 2014 WL 5363905, at *6 (W.D. Ark. Oct. 21, 2014).
Bad faith under section 1446 governs the time for removal,
while fraudulent joinder pertains to the court's subject
matter jurisdiction. Id. at *5-6. The Eighth Circuit
has not yet set forth an interpretive standard for the
“bad faith” exception under section 1446.
suit was pending for more than one year before it was
removed. Great Plains argues Trokey acted in bad faith by
reaching a settlement with the non-diverse defendant, Plumb,
resulting in Plumb's dismissal more than one year after
the suit commenced. Both Great Plains and Plumb were named as
defendants in Trokey's initial petition. Trokey asserted
a valid claim against Plumb, evidenced by the state court
denying Plumb's motion to dismiss for failure to state a
claim. Doc. #6-1. This suggests reasons - other than to avoid
federal court - for joinder of Plumb. While this matter was
pending in state court, Great Plains raised no issue with
Plumb being a defendant. Tellingly, Great Plains filed a
cross-claim against Plumb, alleging his negligence in the
incident caused Trokey's injuries. Given these
circumstances, the Court discerns no bad faith.
Great Plains argues the Court should employ a two-step
framework to analyze the “bad faith” exception
under section 1446. See Aguayo v. AMCO Ins. Co., 59
F.Supp.3d 1225, 1273-77 (D. N.M. 2014). Under that framework,
a court first examines whether the plaintiff actively
litigated against the “removal spoiler” in state
court. Id. at 1262-63 (defining actively litigate to
consist of obtaining a settlement with the defendant).
Actively litigating against the “removal spoiler”
entitles the plaintiff to a rebuttable presumption of good
faith. Id. If the plaintiff is entitled to the
presumption, the second step gives the defendant the
opportunity to rebut the presumption with direct evidence of
bad faith. Id.
Court were to utilize the framework suggested by Great
Plains, its decision would remain unchanged. Trokey actively
litigated against Plumb by defeating Plumb's motion to
dismiss. Moreover, the two parties negotiated a settlement.
Plumb's failure to respond to discovery and Trokey's
failure to enforce discovery is questionable. However, the
settlement between the two parties in light of Plumb's
motion to dismiss being denied is inconsistent with bad
faith. Additionally, Great Plains has provided no evidence -
direct or otherwise - of Trokey acting in bad faith.
Plumb's joinder does not appear to be an effort by Trokey
to avoid federal court. The timing of the settlement, without
more, does not reach the level of bad faith proscribed by
matter was removed more than one year after it was commenced,
and the Court finds Plaintiff did not act in bad faith to
prevent Great Plains from removing this matter. Thus, removal
is untimely. Plaintiff's motion to remand is granted, and