United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs motion to remand
(Doc. No. 10) and motion for expedited hearing (Doc. No. 8).
Defendant BNSF Railway Company ("BNSF Railway")
opposes the motions. (Doc. No. 30). For the reasons set forth
below, the Court will remand the matter to the Circuit Court
of Cape Girardeau County, Missouri, and deny as moot the
motion for expedited hearing.
lawsuit arises out of a motor vehicle accident on Missouri
Highway AB, near a railroad grade crossing. E.H.S., the minor
plaintiff, was a passenger in a vehicle driven by her father.
E.H.S. was injured when her father lost control of his
vehicle, struck a center median in the roadway, and crashed
into a railroad crossing gate.
August 10, 2017, Plaintiff filed her petition against Cheryl
Townlian, an employee of BNSF Railway, in Missouri state
court, asserting claims of negligence in design,
construction, and maintenance of an allegedly dangerous
railroad crossing. Townlian is the "manager of public
projects for BNSF's River Subdivision." (Doc. No.
12). On August 23, 2017, Plaintiff amended her petition to
add BNSF Railway as a defendant.
17, 2018, Townlian was deposed. A year later, on May 31,
2019, Townlian and BNSF filed a joint motion for summary
judgment, which was denied by the trial court. Thereafter,
the parties engaged in settlement negotiations.
August 15, 2019, Plaintiff dismissed her claims against
Townlian without a formal settlement. Trial in the state
court was set to begin on August 20, 2019.
August 17, 2019, BNSF Railway filed its notice of removal. In
support, BNSF Railway claims that Plaintiff engaged in bad
faith by treating Townlian, a diversity-destroying defendant,
as a superfluous party, never serving any written discovery
on her, and dismissing Townlian on the eve of trial without a
formal settlement. BNSF Railway contends that this conduct
provides it with a basis for asserting the exception to the
one-year limitations period for removal. BNSF Railway also
contends that counsel for Plaintiff has exhibited a pattern
and practice of joining nondiverse defendants to defeat
diversity jurisdiction, but then dismissing them shortly
August 19, 2019, Plaintiff filed a motion to remand, arguing
that the one-year limitation barred removal and mandated
remand. Plaintiff maintains that she spent time, money, and
effort to pursue her claims against Townlian, including
taking her deposition and defeating her motion for summary
judgment, which defeats the bad faith exception of the
August 20, 2019, the Court held a telephone conference with
counsel to discuss the positions of the parties and the
status of the underlying state court case. Counsel for BNSF
Railway requested additional time to file a formal opposition
to Plaintiffs motion to remand. Counsel indicated his intent
to supplement his notice of removal to include additional
case law and evidence of Plaintiffs counsel's pattern and
practice of dismissing diversity-destroying defendants
shortly before trial. Counsel for Plaintiff asked for an
expedited ruling on the motion to remand because jurors were
scheduled to be called into state court the following day.
The Court permitted BNSF Railway a brief opportunity to file
its opposition, and BNSF Railway timely complied.
the circumstances of this case, an expedited ruling on the
motion to remand is necessary. A jury trial was set to begin
in state court today, and the state court has indicated to
the parties that potential jurors would be called to serve
tomorrow. The Court notes BNSF Railway's request to
formally file its opposition to remand. However, it is the
Court's belief that BNSF Railway has had the opportunity
to adequately present its arguments and authority in its
notice of removal, and BNSF Railway has also provided
supplemental authority following the telephone conference.
The Court has reviewed the briefing and the record from the
state court in rendering this decision.
defendant may remove a state law claim to federal court only
if the action originally could have been filed there."
In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619
(8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d
1006, 1010 (8th Cir. 2005)). The removing defendant bears the
burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). "All
doubts about federal jurisdiction should be resolved in favor
of remand to state court." In re Prempro, 591
F.3d at 620 (citing Wilkinson v. Shackelford, 478
F.3d 957, 963 (8th Cir. 2007)).
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." Trokey v. Great Plains Roofing &Sheet Metal, Inc., No. 4:16-CV-01193-ODS, 2017 WL
722607, at *1 (W.D. Mo. Feb. 23, 2017) (citation omitted).
"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.