Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Binkley v. 3M Co.

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

July 2, 2018

TIMOTHY BINKLEY, et al., Plaintiffs,
v.
3M COMPANY, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This removed matter is before the Court on Defendant Hilti, Inc.'s (“Hilti”) motion for leave to file an amended notice of removal and plaintiffs Timothy Binkley and Brandi Binkley's (the “Binkleys”) motion to remand. Both motions are opposed and fully briefed. For the following reasons, both motions will be granted. The Court concludes that it lacks subject matter jurisdiction, and this case must be remanded to state court.

         I. Background

         Plaintiffs filed suit in the Circuit Court of St. Charles County, Missouri, on April 20, 2018.[1]The petition alleges state law claims of strict liability, negligence, willful and wanton misconduct, and loss of consortium. Plaintiff Timothy Binkley alleges a diagnosis of silicosis from exposure to defective products manufactured and sold by defendants during his course of employment as a coal miner and drill operator during the years 1993 through 2006.

         The record reflects that Hilti was served via process server with a copy of the original petition and summons on April 27, 2018. Hilti subsequently removed the action to this Court on May 18, 2018, based on diversity of citizenship pursuant to 28 U.S.C. §§ 1332(a) and 1441(b), asserting that plaintiffs are citizens of Kentucky, defendant 3M Company is a citizen of Delaware and Minnesota, defendant Hilti is a citizen of Oklahoma and Texas, defendant Robbins Company is a citizen of Ohio, and defendant Mid-Western, LLC (“Mid-Western”) is a citizen of Missouri and Hong Kong, and the amount in controversy exceeds $75, 000.

         On May 23, 2018, Hilti filed a motion for leave to file an amended notice of removal to acknowledge that the Missouri citizenship of Mid-Western would normally destroy diversity under the forum defendant rule and divest this Court of subject matter jurisdiction, and assert that Mid-Western's citizenship should be disregarded due to fraudulent joinder. On the same date, the Binkleys filed a motion to remand on the basis that this Court does not have subject matter jurisdiction over this mater because there is not complete diversity as defendant Mid-Western is a Missouri citizen and is not fraudulently joined.

         II. Discussion

         A. Motion for Leave to File Amended Notice of Removal

         The Binkleys argue that Hilti's motion for leave to file its amended notice of removal should be denied because it is untimely and improperly asserts fraudulent joinder as a “new basis” for removal. The Court disagrees for the following reasons.

         28 U.S.C. § 1441 and § 1446 govern removal of a state court action to federal court. Pursuant to § 1446(b), “[t] he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]” A notice of removal may be freely amended during the thirty-day period in which the removal may be filed. See 28 U.S.C. § 1653; 14B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3733 (4th ed. 2013). However, after the thirty-day period for removal has expired, the notice can only be amended to add specific facts supporting the originally stated grounds for removal or to clarify the grounds for removal as stated in the original notice and cannot add new grounds for removal. See Lindsey v. Dillard's, Inc., 306 F.3d 596, 600 (8th Cir. 2002); Whitehead v. The Nautilus Group, Inc., 428 F.Supp.2d 923, 928-29 (W.D. Ark. 2006).

         The Binkleys filed their initial pleading in the Circuit Court of St. Charles County on April 20, 2018. Hilti was served with the petition and summons on April 27, 2018. Defendant Hilti filed its notice of removal on May 18, 2018, twenty-one days after service, and its motion for leave to file an amended notice of removal on May 23, 2018, twenty-six days after service. Defendant Hilti's amended notice of removal is timely as it was filed within the thirty-day period for removal under 28 U.S.C. § 1446(b), and thus may be freely amended.

         Accordingly, this Court will grant Hilti's motion for leave to file its amended notice of removal. The Court will treat the amended notice of removal, which is attached to Hilti's motion for leave, as filed for the purpose of expeditiously addressing the pending motion to remand.

         B. Motion to Remand

         Hilti presents two arguments for why Mid-Western's citizenship should be disregarded and the motion to remand denied: (1) Hilti was not aware that Mid-Western had been served with the original petition and summons; and (2) Mid-Western was fraudulently joined because the Binkleys failed to state a colorable claim against Mid-Western in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.