United States District Court, W.D. North Carolina
BARBARA BOONE, as Administratrix of the Estate of Eugene Boone, Plaintiff,
DUFFY BOX & RECYCLING, INC., BRIAN C. MORAN, JOHN DOE, an employee or agent of Duffy Box & Recycling, Inc., GREIF INDUSTRIAL PACKAGING & SERVICES, LLC, GREIF PACKAGING, LLC, and GREIF, INC., Defendants.
C. Mullen United States District Judge
matter is before the Court upon the Plaintiff's Motion to
Remand to State Court (Doc. No. 9) and the Motion to Dismiss
filed by Defendants Duffy Box and Brian Moran (Doc. No. 4).
These Motions are ripe for disposition. For the following
reasons, Plaintiff's Motion to Remand is granted and
Defendants' Motion to Dismiss is denied without
Decedent, Eugene Boone, was a tractor-trailer driver employed
by Cowan Systems, LLC (“Cowan”). On May 23, 2016,
Eugene Boone's tractor trailer was loaded with corrugated
cardboard at a facility in Greensboro, North Carolina, that
is owned and operated by Defendant Duffy Box & Recycling,
Inc. (“Duffy Box”). Eugene Boone then drove to a
facility in Blackstone, Virginia, that is owned and operated
by Greif Industrial Packaging & Services, LLC, Greif
Packaging, LLC, and Greif, Inc. (collectively, “the
Greif Defendants”). When he arrived at the Blackstone
facility and opened one of the trailer doors, a cardboard
bundle weighing approximately 800 pounds fell out of the
trailer onto Eugene Boone, causing his death.
Barbara Boone alleges that Defendant John Doe, an
unidentified agent or employee of Duffy Box, improperly
loaded the tractor trailer at the Greensboro facility in a
manner that created an unreasonable danger. She also alleges
that Defendant Brian Moran (“Moran”), an owner of
Duffy Box and the manager of the Greensboro facility, was
negligent in hiring, training, supervising, and entrusting
John Doe, and in failing to implement necessary safety
procedures and inspections.
administratrix of her husband's estate, Boone brought
this cause of action in the Superior Court of Mecklenburg
County on June 9, 2017, raising eight claims for relief: (1)
negligent and wanton conduct by Duffy Box, (2) breach of
contract by Duffy Box, (3) negligent and wanton conduct by
Moran, (4) negligent and wanton conduct by John Doe, (5)
vicarious liability of Duffy Box, and (6-8) negligent and
wanton conduct of each of the Greif Defendants.
named defendants collectively removed this action to federal
court on July 11, 2017. Defendants Duffy Box and Moran
subsequently filed a Motion to Dismiss on July 18, 2017, and
Boone filed a Motion to Remand on July 31, 2017.
MOTION TO REMAND
filed this Motion to Remand asserting that this Court lacks
subject matter jurisdiction over the cause of action.
Specifically, Plaintiff claims that the presence of
Defendants Brian Moran and John Doe destroys diversity
Boone is a citizen and resident of the State of North
Carolina. Brian Moran is a citizen and resident of the State
of North Carolina. Although his identity has not been
revealed by the named defendants, Boone alleges that John Doe
is also a citizen and resident of the State of North
civil action filed in a state court may be removed by a
defendant to federal court if the federal court would have
had original jurisdiction over the matter. 28 U.S.C. §
1441(a). Federal district courts have original subject matter
jurisdiction in civil actions where the matter in controversy
exceeds $75, 000 and is between citizens of different states.
Id. § 1332(a). Removal on the basis of
diversity jurisdiction is only permissible if there is
complete diversity, such that none of the “properly
joined and served” defendants are citizens of the same
state as the plaintiff. Id. § 1441(b)(2).
Additionally, “the citizenship of defendants sued under
fictitious names shall be disregarded” in assessing
subject matter jurisdiction. Id. § 1441(b)(1).
in their Notice of Removal and subsequent memoranda, assert
that Brian Moran is fraudulently joined, must be dismissed
from the case, and must not be considered for purposes of
establishing diversity jurisdiction.
Standard of Review
party seeking removal bears the burden of establishing
federal jurisdiction. Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994). Because removal
jurisdiction is strictly construed, a remand is necessary
“[i]f federal jurisdiction is doubtful.”
Id. “To show fraudulent joinder, the removing
party must demonstrate either ‘outright fraud in the
plaintiff's pleading of jurisdictional facts' or that
‘there is no possibility that the plaintiff
would be able to establish a cause of action against the
in-state defendant in state court.'” Ha ...