United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Ricky
Freeman's Motion to Remand. (ECF No. 9.) Defendants
Curtis Bay Medical Waste Services, LLC, Curtis Bay Medical
Waste Services Virginia, LLC (collectively with Curtis Bay
Medical Waste Services, LLC, the "Curtis Bay
Defendants"), and Edward McCollum responded,
(ECF No. 13), and Freeman replied, (ECF No. 14.)
materials before the Court adequately present the facts and
legal contentions, and oral argument would not aid the
decisional process. Accordingly, the matter is ripe for
disposition. For the reasons stated below, the Court will
grant the Motion to Remand.
Standard of Review
Removal Jurisdiction & Remand
28 U.S.C. § 1441(a),  a defendant may remove a civil action
to a federal district court if the plaintiff could have
originally brought the action in federal court. 28 U.S.C.
§ 1441(a). Section 1446 delineates the procedure for
removal. See 28 U.S.C. §§ 1446(a), (d).
The state court loses jurisdiction upon the removal of an
action to federal court. 28 U.S.C. § 1446(d)
("[T]he State court shall proceed no further unless and
until the case is remanded."). The removability of a
case "depends upon the state of the pleadings and the
record at the time of the application for removal...."
Ala. Great S. Ry. Co. v. Thompson, 200 U.S. 206, 216
(1906); see also Pullman Co. v. Jenkins, 305 U.S.
534, 537 (1939) ("the right to remove ... [is]
determined according to the plaintiffs' pleading at the
time of the petition for removal."). Under 28 U.S.C.
§ 1447(c), "[i]f at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded." 28 U.S.C.
party seeking removal bears the initial burden of
establishing federal jurisdiction." Abraham v.
Cracker Barrel Old Country Store, Inc., No. 3:11cv182,
2011 WL 1790168, at *1 (E.D. Va. May 9, 2011) (citing
Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148,
151 (4th Cir. 1994)). No. presumption favoring the existence
of federal subject matter jurisdiction exists because federal
courts have limited, not general, jurisdiction. Id.
(citing Pinkley Inc. v. City of Frederick, 191 F.3d
394, 399 (4th Cir. 1999)). In deference to federalism
concerns, courts must construe removal jurisdiction strictly.
Id. (citing Mulcahey, 29 F.3d at 151).
"If federal jurisdiction is doubtful, a remand is
necessary." Id. (quoting Mulcahey, 29
F.3d at 151).
federal district court has diversity jurisdiction over
"all civil actions where the matter in controversy
exceeds ... $75, 000 ... and is between....[c]itizens of
different states." 28 U.S.C. § 1332(a)(1). Federal
diversity jurisdiction requires complete diversity of
citizenship. Abraham, 2011 WL 1790168 at *2 (citing
Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990));
see also 28 U.S.C. § 1332(a)(1). "[T]he
'citizenship of each plaintiff [must be] diverse from the
citizenship of each defendant.'" Abraham,
2011 WL 1790168, at *2 (quoting Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996) (second alteration in
The Fraudulent Joinder Doctrine
fraudulent joinder doctrine operates as an exception to the
complete diversity requirement, permitting a district court
to disregard, for jurisdictional purposes, the citizenship of
certain nondiverse defendants, assume jurisdiction over a
case, and dismiss the nondiverse defendants, thereby
retaining jurisdiction. Abraham, 2011 WL 1790168, at
*2 (citing Mayes v. Rapoport, 198 F.3d 457, 461 (4th
Cir. 1999)). "To show fraudulent joinder, the removing
party must demonstrate either 'outright fraud in the
plaintiffs 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.'" Hartley v.
CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999)
(alteration in original) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). "The
party alleging fraudulent joinder bears a heavy burden - it
must show that the plaintiff cannot establish a claim even
after resolving all issues of law and fact in the plaintiffs
favor." Id. "This standard is even more
favorable to the plaintiff than the standard for ruling on a
motion to dismiss under [Federal Rule of Civil Procedure]
12(b)(6)." Id. "Once the court identifies
this glimmer of hope for the plaintiff, the jurisdictional
inquiry ends." Id. at 426; see also Allard
v. Laroya, 163 F.Supp.3d 309, 311 (E.D. Va. 2016). In
making this determination, the Court is not bound by the
allegations in the pleadings, but may consider the entire
record. Mayes, 198 F.3d at 464.
Factual and Procedural Background
18, 2018, Freeman filed the Complaint in the Circuit Court
for the City of Petersburg (the "Petersburg Circuit
Court"), seeking damages for personal injuries pursuant
to state law negligence claims. Freeman served all the
defendants on or about May 25, 2018. The defendants filed
various responsive pleadings at the state
level. On June 21, 2018, the Curtis Bay
Defendants and McCollum timely removed this action from the
Petersburg Circuit Court to this Court, claiming diversity
jurisdiction. (ECF No. 1.)
27, 2018, Freeman filed this Motion to Remand, claiming that
full diversity does not exist because both Plaintiff Freeman
and Defendant McCollum reside in Virginia. Freeman asks the
Court to remand the case and order attorney's fees
associated with defending this allegedly improper removal. On
July 11, 2018,  the Curtis Bay Defendants and McCollum
responded in opposition to the Motion to Remand, countering
that Freeman fraudulently joined McCollum to this action to
avoid removal to federal court. Freeman replied to the Curtis Bay
Defendants and McCollum's response.
Summary of Allegations in the
personal injury action arises from a March 31, 2017 explosion
at a medical waste site located in the City of Petersburg,
Virginia (the "Waste Site" or "Site"). On
that date, according to Freeman, a boiler in the Waste Site
exploded, sending "flying debris" into the
vicinity. (Compl. ¶¶ 10-11, ECF No. 1-2.) At the
time of the explosion, Freeman avers he "was sitting
inside his truck at a red traffic light, his vehicle
approximately 30 feet away from" the Waste Site.
(Id. ¶ 9.)
alleges that, at first, he got out of his truck to seek cover
farther away from the explosion. Finding none, Freeman
returned to his vehicle and lowered himself to the ground to
take cover underneath his vehicle. The Complaint states that
"while [Freeman] was lowering himself to the ground, a
piece of concrete flew through the air from the explosion and
struck his right shoulder." (Id. ¶ 14.)
Freeman avers he "suffered extensive injuries, including
but not limited to, substantial loss of hearing, blast
injury, contusion of right shoulder, and suffers continued
pain in the right shoulder." (Id. ¶ 15.)
Freeman seeks $2, 800, 000 in damages and $350, 000 in
Complaint, Freeman charges that, at the time of the
explosion, Edward McCollum "was the plant manager"
of the Waste Site responsible for maintenance of the
boiler.(Id. ¶ 42.) According to
Freeman, McCollum had sufficient information to foresee the
safety risks associated with the ...