Remand, Removal and Realignment of Parties:Removal by 3rd

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Remand, Removal and Realignment of Parties:Removal by 3rd

Postby Administrator » Mon Dec 15, 2014 10:52 pm

Remand, Removal and Realignment of Parties:Removal by 3rd party defs, counterclaim defs,...etc.?

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION


EVERGREEN PROCESSING, LLC CIVIL ACTION NO.
1:11CV00108-DPM
VERSUS JUDGE MARSHALL

HELEN BARTMESS and BRUCE BARTMESS

PLAINTIFFS’ RESPONSE IN OPPOSITION TO HELEN BARTMESS’S
AND BRUCE BARTMESS’S MOTION TO REMAND

MAY IT PLEASE THE COURT:
NOW INTO COURT come Removing Parties, EVERGREEN PROCESSING, LLC, JAMES P. HARDY, JR., MARY HARDY, HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and JOHN HARDY, who respectfully respond to and oppose the motion to remand of Helen Bartmess and Bruce Bartmess, as follows:
I. BACKGROUND
This Court has original jurisdiction by virtue of 28 U.S.C. 1332 as this matter in controversy exceeds $75,000.00, exclusive of costs and interest and the parties to these proceedings are citizens of different states.
Plaintiff, Evergreen Processing, LLC, filed this civil action entitled "Evergreen Processing, LLC, v. Helen Bartmess and Bruce Bartmess, suit no. CV-2011-137-2, Circuit Court of Izard County, Arkansas." That state court is within Izard County, Arkansas which is designated as part of the Eastern District of Arkansas and specifically designated as a County assigned to the Northern Division. Thus, removal to this Division and this Honorable Court is mandated.
Plaintiff filed an injunctive action based on acts by defendants Helen Bartmess and Bruce Bartmess to prevent access to plaintiff’s property known as the “249+/- acres” tract along and adjacent to Mill Creek, in Izard County, Arkansas. Defendants Helen Bartmess and Bruce Bartmess [whose name is “Johnny Bruce Bartmess”] are mother-son. Helen Bartmess holds ownership rights to lands which originally included the 249 acres tract and said lands were owned by her and her now deceased husband, George Bartmess. Evergreen was granted a TRO by the trial court and Helen Bartmess and Bruce Bartmess have voluntarily consented to the continuation of that TRO. The relief has been granted by the Arkansas state court.
In defendants’ Answer, separate defendant Helen Bartmess included what she labeled as a Counterclaim and Third Party Demand. Separate defendant Helen Bartmess alleged that Counterclaim and Third Party Demand Defendants, EVERGREEN PROCESSING, LLC, JAMES P. HARDY, JR., MARY HARDY, HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and JOHN HARDY, are liable unto her based upon: [1] the filing of a Notice of Lis Pendens; [2] declaratory and injunctive relief to perform what both defendants term as road maintenance and for damages related to the claims that such activities have been negated by Evergreen Processing, LLC; [3] declaratory and injunctive relief to perform what both defendants term as road usage rights; [4] slander of title; and [5] abuse of process. Of some significance, in the Counterclaim and Third Party Demand, Helen Bartmess stated, more than once, that her alleged damages claimed are “greater than that necessary for federal diversity jurisdiction.” ¶27, 33.
II. OBLIGATION TO EXERCISE FEDERAL JURISDICTION
Federal courts have a “virtually unflagging obligation” to exercise the jurisdiction conferred upon them. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 1720, 135 L.Ed.2d 1 [1996] [“[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.”]; Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 [1976] [“Abstention from the exercise of federal jurisdiction is the exception, not the rule.”]. A federal court may abstain from the exercise of jurisdiction only in “‘exceptional circumstances,’ ‘where denying a federal forum would clearly serve an important countervailing interest,’” such as “considerations of ‘proper constitutional adjudication,’ ‘regard for federal-state relations,’ or ‘wise-judicial administration.’” Quackenbush, 517 U.S. at 716, 116 S.Ct. at 1721 [quoting Colorado River, 424 U.S., at 817, 96 S.Ct., at 1246].
III. STANDING TO REMOVE THE ACTION
Helen and Bruce Bartmess argue that the Removing Parties are not entitled to remove this Action. 28 U.S.C. §1441[a] permits removal of “[a]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction.” Under this statute, “[a] defendant may remove a state court action to federal court only if the action could have originally been filed in the federal court.” Aaron v. National Union Fire Insurance Company of Pittsburg, Pennsylvania, 876 F.2d 1157, 1160 [5th Cir.1989], cert. denied, 493 U.S. 1074 [1990].
[a] Removal by Defendant in Counterclaim and Third Party Defendants and Realignment of the Parties
The Eighth Circuit Court of Appeals has followed a trend of not allowing Third Party Defendants, as a Third Party Defendant, to remove an Action. Jones v. Union Pacific R. Co., Slip Copy, 2010 WL 2278653 [U.S.D.C. W.D. Ark. 2010]; Lewis v. Windsor Door Co., 926 F.2d 729, 733-34 [8th Cir.1991]. Although counsel could not find an Eighth Circuit decision, District Courts in this Circuit have generally denied the ability of a Counterclaim Defendant, as a Counterclaim Defendant, to remove an Action. Resolution Trust Corp. v. Sloan, 775 F.Supp. 326 [U.S.D.C. E.D. Ark. 1991]. The Removing Parties made reference to Section 1334[c] and the ability of Counterclaim Defendants and even Third Party Defendants, as such but after without realignment, to remove cases under that provision. Section 1334[c] was amended in the early 1990's to restrict those removal instances to federal question cases. This is a diversity of citizenship case and that is the basis upon which it was removed. Therefore, Section 1334[c] does not get the Removing Parties to federal court. However, this Honorable Court is empowered to realign the parties, as it should, and based on realignment, the case is properly removed. Citations infra. The court should note that the jurisprudence denying the right of third party defendants to remove appears to solely involve cases where realignment was not an issue. Realigned parties are allowed to remove an Action. City of Indianapolis v. Chase Nat'l Bank of City of New York, 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47 [1941]; Kenko Int’l v. Asolo S.r.l., 838 F.Supp. 503 [U.S.D.C. Colo. 1993]; Miller v. Washington Workplace, 298 F.Supp.2d 364 [U.S.D.C. E.D. Va. 2004]; Seminole County v. Pinter Enterprises, Inc., 184 F.Supp.2d 1203, 1208-1209 [U.S.D.C. M.D. Fla. 2000]; Lott v. Scottsdale Ins. Co., --- F.Supp.2d ----, 2011 WL 2022539 [U.S.D.C. E.D. Va. 2011]; Thompson v. Bankers & Shippers Ins. Co. of N.Y., 479 F.Supp. 956, 959 [U.S.D.C. N.D.Miss.1979]; Gen. Tech. Applications, Inc. v. Exro Ltda., 388 F.3d 114, 120–21 [4th Cir.2004]; Nationwide Mut. Ins. Co. v. 1400 Hampton Blvd., LLC., Nos. 2:10cv310, 2:10cv343, 2010 WL 5476748, at *2–3 [U.S.D.C. E.D.Va. Dec. 2, 2010]; Crout v. United Fin. Cas. Co., No. 1:10–649, 2010 WL 2998500, at *1–2 [U.S.D.C. S.C. July 28, 2010]; Gressette v. Sunset Grille, Inc., 447 F.Supp.2d 533, 535–37 [D.S.C.2006]; Herbalife Int'l, Inc. v. St. Paul Fire & Marine Ins. Co., No. 5:05cv41, 2006 WL 839515, at *3 [U.S.D.C. N.D. W.Va. Mar. 30, 2006]; Ohio Cas. Ins. Co. v. RLI Ins. Co., No. 1:04CV483, 2005 WL 2574150, at *4 [U.S.D.C. M.D. N.C. Oct. 12, 2005]; Hidey v. Waste Sys. Int'l, Inc., 59 F.Supp.2d 543, 545–46 [D.Md.1999]; Folts v. City of Richmond, 480 F.Supp. 621, 624 [U.S.D.C. E.D. Va. 1979]; Heniford v. Am. Motors Sales Corp., 471 F.Supp. 328, 334 [U.S.D.C. S.C.1979]; Cleveland Housing Renewal Project v. Deutsche Bank Trust Co., 621 F.3d 554, 560 [6th Cir.2010]; Peters v. Standard Oil Co., 174 F.2d 162, 163–64 [5th Cir.1949]. This case presents an unusual set of circumstances and intertwined facts and claims with another Action pending in this Honorable Court such that this Action should be tried together with it.
The Removing Parties believe that the decision in Geismann v. American Economy Ins. Co., Slip Copy, 2011 WL 4501161 [U.S.D.C. E.D. Mo. 2011], is helpful. The court noted that “AEIC cites the standard for party alignment as set forth by the Supreme Court in Indianapolis v. Chase National Bank, 314 U.S. 63, 69–70 [1941]: “It is our duty, as it is that of the lower federal courts to “look beyond the pleadings and arrange the parties according to their sides in the dispute.” Litigation is the pursuit of practical ends ... It must be ascertained from the “principal purpose of the suit” and the “primary and controlling matter in dispute.” There is a circuit split regarding the correct approach to interpreting Indianapolis. AEIC's argument relies on the “primary purpose test,” which requires that “the parties must be realigned if there is not adversity with regard to the primary issue in dispute.” Price v. Wolford, 608 F.3d 698 [10th Cir.2010] [citing Indianapolis, 314 U.S. at 102–49]. However, the Eight Circuit is part of a minority of circuits that apply the “actual and substantial conflict test.” McCarthy Bldg. Co., Inc. v. RSUI Indem. Co., No. 4:10CV02063, 2011 WL 3847401 at *4 [E.D. Mo. Aug. 30, 2011] [citing Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866, 870–71 [8th Cir.1996]]. “[I]f there is any actual and substantial conflict existing” between the parties as aligned, the court should not realign them. Id. [citing Hartford Accident and Indem. Co. v. The Doe Run Res. Corp., No. 4:08CV1687, 2009 WL 1067209 at *3 [E.D. Mo. Apr. 21, 2009]]; see also Mo. United, 2010 WL 1254657 at *4–5.” Here, realignment should be made.
As discussed in the Notice of Removal and the state court record, Evergreen Processing, LLC, filed a state law TRO and injunctive action against Bruce Bartmess and his mother Helen Bartmess to prevent them from locking gates and denying ingress and egress to Evergreen’s property. Necessarily tied to the issues and claims before Your Honor in Action No. 09CV0041, the Bartmesses have acted repeatedly to try and prevent Evergreen from developing the sand mining project as the LLC MIPA contains reversionary clauses related to the lands and the Bartmesses would stand to regain the title to properties that Evergreen and the Hardy Group paid for in order to mine and acquire ownership with some being subject to reversion to Bartmess at a specified time if certain conditions occur. Action 09CV00041, Defendant’s EXH. 2 to defendant’s pending motion for summary judgment. Preventing Evergreen’s mining activities has been the objective of the Bartmesses. In addition to locking gates, the Bartmesses burned and destroyed Evergreen’s expensive, ADEQ-ordered remediation of the banks of Mill Creek on the 249+/- acres tract, recently dredged a large canal into the Creek in an effort to create another environmental disaster, action and emergency order, caused numerous land disturbance activities to draw the ire of ADEQ and local citizens and activists, etc. Also, see plaintiffs’ proposed second amended complaint in Action 09CV00041, alleging a number of such actions. The clear objective is to destroy the Evergreen project by preventing permitting [permitting was finally completed in March, 2011] and financing of the project thereby killing the project. The injunctive relief requested by Evergreen was granted by the Arkansas state circuit court in Izard County prior to removal.
Helen Bartmess then filed counterclaims and third party demands which thrust the state court action into a posture of placing the removing parties [Evergreen and Hardy Group] as defendants to substantial damage, declaratory relief and injunctive relief claims asserted by Helen Bartmess. Evergreen Processing, LLC’s claims were nominal in nature and Helen Bartmess’s claims have become the reason for a trial in this Action. Realignment of the parties would be proper so as to designate the removing parties as defendants. Helen Bartmess should be designated as plaintiff. She will have the burden of proof at trial. Any residual injunctive claims will be handled before a trial will occur on Helen Bartmess’s claims.
Realignment based on a defendant bearing the ultimate burden of proof on claims at the eventual trial on the merits. Ericsson, Inc. v. Harris Corporation, 1999 WL 604827 [U.S.D.C. N.D. Tex. Aug.11, 1999] [“It is elemental that the party who files a lawsuit is designated as the plaintiff. This designation is based on the party's burden to prove the claims initially asserted in the lawsuit. A court normally will not realign the parties from their original designations unless the plaintiff no longer retains the burden to prove at least one of its claims or if subsequent events in the case significantly shift the ultimate burden of proof from the plaintiff to the defendant.”]. Federal law determines a parties’ status as a plaintiff or a defendant regardless of how the state court pleadings aligned the parties. Alignment in state court is totally irrelevant. Chicago Rock Island & Pacific Railroad v. Stude 346 U.S. 574, 579 , 74 S.Ct. 290, 294 [1954].
The plea of realignment is well-founded for other reasons as well. Evergreen Processing, LLC’s nominal claims were an ancillary-type action to seek an injunction to enforce Evergreen Processing, LLC’s right of way access. Such nominal claims permit the removing parties to seek realignment and to be designated as the defendants for purposes of federal jurisdiction and specifically removal statutes. Peters v. Standard Oil Co. Of Texas, 174 F.2d 162 [5th Cir. 1949]; Schnabel v. Lui, 302 F.3d 1023 [9th Cir. 2002]; Allstate Insurance Co. v. Blankenship, 2005 WestLaw 2095679 [U.S.D.C. E.D. Ky. 2005]; General Motors Corp. v. Gunn, 752 F.Supp. 729 [U.S.D.C. N.D. Miss. 1990]; Lilly Industries v. Employers Insurance of Wausau, 2001 U.S.Dist.Lexis 531 [U.S.D.C. W.D. Mich. 2001]; Balliviero v. Konrad, 2001 WL 1041771 [U.S.D.C. E.D. La. 2001]. Federal law is used to determine realignment and the real interests of the parties. Chicago Rock Island & Pacific Railroad v. Stude, 346 U.S. 574, 580 [1954]. “Jurisdiction cannot be conferred upon the federal courts by the parties' own determination of who are plaintiffs and who are defendants.” City of Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 86 L.Ed. 47 [1941]. When determining whether complete diversity exists among parties opposed in interest, “it is the duty of the court to look beyond the pleading and arrange the parties according to their actual side in the controversy.” Bundag v. Euramerica Co., 510 F.Supp. 622, 624 [U.S.D.C. N.D. Tex.1981] [citing City of Indianapolis, 314 U.S. at 69]; Robins v. Bassman, Slip Copy, 2009 WL 2835757 [U.S.D.C. N.D. Tex. 2009]. The Hardy Group of defendants are properly aligned with Evergreen Processing, LLC. That is clear on the face of the pleadings. Hardy Group and Evergreen should be religned as defendants. It should be noted that even Evergreen alone were to be realigned as the defendant then removal is still proper. Evergreen’s joinder in removal is noted in the removal papers.
In Farmers Bank and Trust Co. v. Ameris of Arkansas, LLC, Slip Copy, 2010 WL 4269192 [U.S.D.C. E.D. Ark. 2010], this Honorable Court faced a comparable scenario and held: “Thus, at first glance, the facts of the case appear to compel remand. Upon further inquiry,
however, logic dictates that jurisdiction lies herein. To begin, the original state-court party alignment is not binding upon a federal court sitting on the basis of diversity of citizenship. Wright, Miller & Kane, Federal Practice and Procedure §3607. For purposes of removal, federal law determines who is a plaintiff and who is a defendant. Id. §3723. As such, a federal court must realign the parties according to their sides in the dispute. Id. §3607. Alignment is proper when parties with the same ultimate interests in the outcome of the action are on the same side of the litigation. Id. Accordingly, the basic inquiry is to discern “the principal purpose of [the] suit and [the] primary and controlling matter in dispute.” Universal Underwriters Insurance Co. v. Wagner, 367 F.2d 866, 870 [8th Cir.1966].” Here, at this time, the primary and controlling matter in this Action is the Bartmess claims.
In Guy v. State Farm Mut. Auto. Ins. Co., Slip Copy, 2011 WL 1212179 [U.S.D.C. E.D. Ark. 2011], this Honorable Court again ordered realignment permitting removal. This court held: “For purposes of removal, federal law determines who is a plaintiff and who is a defendant. Wright, Miller & Kane, Federal Practice and Procedure §3723. As such, a federal court must realign the parties according to their sides in the dispute. Id. at §3607. Alignment is proper when parties with the same ultimate interests in the outcome of the action are on the same side of the litigation. Id. Accordingly, the basic inquiry is to discern “the principal purpose of [the] suit and [the] primary and controlling matter in dispute.” Universal Underwriters Insurance Co. v. Wagner, 367 F.2d 866, 870 [8th Cir.1966]. Farmers Bank and Trust Co. v. Ameris of Arkansas, LLC, 2010 WL 4269192, 3 [U.S.D.C. E.D. Ark. 2010]. “The controversy must be actual and substantial.” Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866, 870 [8th Cir.1966] [citations omitted]. The principal purpose of this suit is to recover for the theft of the truck under the automobile insurance policy issued by State Farm. If the Plaintiffs are successful in their claims against State Farm then Wells Fargo may be entitled to payment for the lien on the truck directly from State Farm. Plaintiffs have stated they have no claim against Wells Fargo. Wells Fargo and the Plaintiffs have the same ultimate interests in the outcome of the action and should be realigned on the same side of the litigation. For this reason, Wells Fargo is realigned as a plaintiff in this case.” Again, Evergreen is aligned with the Hardy Group named in the Third Party Demand. Helen Bartmess’s filing placed her as the driving force of claims in this Action and Evergreen’s claims, even before the injunctive relief was granted, were nominal in comparison to claims by Helen Bartmess now and even when compared to the claims in Action No. 09CV0041.
At the trial on Helen Bartmess’s claims, Evergreen Processing, LLC, will have no burden of proof as the nominal injunctive claims have been [and will be] disposed of completely and well before Helen Bartmess’s claims commence at trial. Bartmess, alone, will have the burden at trial as to the claims. Employers Mutual Casualty Co. v. Maya, 2004 U.S. Dist. LEXIS 24811, at *5 [U.S.D.C. N.D. Tex. Dec. 9, 2004] [When original plaintiff no longer bears the burden of proof, realignment of the parties to place the plaintiff on the defense side is necessary and proper.]. Realignment was properly asserted in the removal papers. Premier Holidays Int'l, Inc. v. Actrade Capital, Inc., 105 F.Supp.2d 1336, 1339–40 [U.S.D.C. N.D. Ga. 2000; Bilyeu v. National Union Fire Ins. Co. of Pittsburgh, PA, Not Reported in F.Supp.2d, 2010 WL 1190037 [U.S.D.C. W.D. La. 2010].
Evergreen and the Hardy Group of defendants assert that they should be aligned together and as defendants to the claims by Helen Bartmess which now are the overwhelming driving force of this Action and not the nominal and substantially adjudicated claims of Evergreen.
[b] Additional reasons supporting realignment
In hindsight, the Notice of Removal may not have made certain points as clear as intended by counsel. With time now to catch our breath and reflect, it is necessary to address additional reasons supporting realignment. Under Section 1334[c], courts considered the unfairness imposed on third party defendants by a rule prohibiting those defendants from acting to remove a case. In allowing removal of counterclaims that were separate and distinct claims [like those of Bartmess here; which are plainly independent, separate and distinct from the gate locking issue raised by Evergreen], “[C]ourts have previously acknowledged that there is “a distinct difference between defendants that were originally plaintiffs to a suit and defendants who had nothing to do with the suit but were joined by a counterclaim.” H & R Block, Ltd. v. Housden, 24 F.Supp.2d 703, 706 [U.S.D.C. E.D.Tex.1998] [citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 [1941] to explain that § 1441[c] “allows removal by counterclaim defendants as long as they are not original plaintiffs to the action and the counterclaim is separate and independent from the original claim”]. Again, Section 1334[c] once allowed removal in diversity and federal question Actions, prior to amendment in the early 1990's. It is important for Your Honor to consider that Hardy Group defendants were not original plaintiffs and Evergreen was relegated and forced [by defendant’s actions affecting the project and by the inability to obtain leave to file a Second Supplemental and Amended Complaint in Action No. 09CV0041] to file the Action in state court in Izard County. There was some discussion about that matter at the October 20, 2011 status conference hearing with Your Honor in Civil Action No. 09CV0041. Hardy Group defendants did not select the forum and were added as defendants by Bartmess. Courts recognized that counterclaim defendants [and third party defendants], who did not voluntarily choose to bring suit in state court, should be viewed differently. Holmes Group, 535 U.S. at 831-32; North Star Capital Acquisitions, LLC v. Krig, Not Reported in F.Supp.2d, 2007 WL 3522425 [U.S.D.C. M.D. Fla. 2007]. Some courts questioned why a third party defendant should be deprived of rights to remove just because they were joined on a third party basis. It seemed illogical to deprive those litigants of important rights on such a subtle distinction as to treat “third party defendants” differently than “defendants,” [[Courts are split on whether “defendants,” in the context of §1441[a], means only defendants joined in the original complaint. Schmidt v. Association of Apartment Owners of Marco Polo Condo., 780 F.Supp. 699, 702 [U.S.D.C. Haw. 1991] [collecting cases]; Duckson, Carlson, Bassinger, LLC v. The Lake Bank, N.A., 139 F.Supp.2d 1117 [U.S.D.C. Minn. 2001].]] the latter being the word used in the statute. Motor Veh. Cas. Co. v. Russian River Co. Sanitation Dist., 538 F.Supp. 488, 491-492 [U.S.D.C. N.D. Cal. 1981]; Davis v. McCourt, 226 F.3d 506, 509-510 [6th Cir. 2000]; In re Surinam Airways Holding Co., 974 F.2d 1255, 1259 [11th Cir. 1992]; Carl Heck Eng., Inc. v. LaFourche Parish Police Jury, 622 F.2d 133, 135-136 [5th Cir. 1980]. It seems that realignment rules have supplemented the removal rules to afford removal when exceptional circumstances exist. By realigning parties, which cannot be achieved through the rigors of pleading practice, removal can be achieved and piecemeal litigation can be avoided. Having an Action in this court and a parallel litigation involving many, if not all, of the same facts and witnesses in state court would result is a huge waste of judicial resources, expense to the parties, more delays, and difficulties reconciling rulings from each court and the effect of same.
[c] Severance of the third party demands also permits removal
Based on the uniqueness of this Action, coupled with the ongoing Action No. 09CV0041, where the third party demands should be tried together, another course of action is to have Your Honor sever the third party demands and allow those claims to be removed. In Hrivnak v. NCO Portfolio Management, Inc., 723 F.Supp.2d 1020 [U.S.D.C. N.D. Ohio 2010], the court discussed this solution in the context of severance before removal [[Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 [5th Cir.2006]; Zea v. Avis Rent a Car Sys., 435 F.Supp.2d 603, 607 [U.S.D.C. S.D.Tex.2006]; Central of G.R. Co. v. Riegel Textile Corp., 426 F.2d 935, 938 [5th Cir.1970]; Crump v. Wal–Mart Group Health Plan, 925 F.Supp. 1214, 1220 [U.S.D.C. W.D. Ky.1996]; Crump v. Wal-Mart Group Health Plan, 925 F.Supp. 1214 [U.S.D.C. W.D. Ky.,1996].]] however there is no reason to require severance before removal where the same action can take place in the District Court. The case appeared to involve parties that might not be diverse absent severance but that is not the issue here. There is diversity regardless and due to the sham joinder of Hardy Energy Services, Inc. Discussed infra. The Hrivnak court also cited F.L. Crane & Sons, Inc. v. IKBI, Inc., 630 F.Supp.2d 718, 720 [U.S.D.C. S.D. Miss. 2009] [“The Fifth Circuit Court of Appeals ... [has held] that removal is proper where the state trial court has severed the third-party defendant's claim from the main demand prior to removal.”], [citing Central of G.R. Co. v. Riegel Textile Corp., 426 F.2d 935, 938 [5th Cir.1970]]; Crump v. Wal–Mart Group Health Plan, 925 F.Supp. 1214, 1220 [U.S.D.C. W.D.Ky.1996]. These cases appeared to also involve parties that might not be diverse absent severance but that is not the issue here.
IV. DIVERSITY OF CITIZENSHIP
[a] Citizenship of the Parties
Helen Bartmess is alleged to be a Louisiana domiciliary. She is certainly not a Texas domicile. Johnny Bruce Bartmess is alleged to be an Arkansas domiciliary. He is certainly not a Texas domicile.
Original plaintiff Evergreen Processing, LLC, is an unincorporated association formed as a limited liability company and to which the corporate citizenship rule does not apply. In GMAC Commercial Credit LLC v. Dillard Dept. Stores, Inc., 357 F.3d 827, 828-829 [8th Cir. [Ark.] 2004], the Courts of Appeals held: “The citizenship of an LLC for purposes of diversity jurisdiction is an issue of first impression in our circuit. Congress limits a federal district court's diversity jurisdiction to “all civil actions where the matter in controversy exceeds ... $75,000 ... and is between ... citizens of different States.” 28 U.S.C. §1332[a][1] [2000]. Generally, a district court's “diversity jurisdiction in a suit by or against [an unincorporated] entity depends on the citizenship of ‘all the members.’ ” Carden v. Arkoma Assocs., 494 U.S. 185, 195-96, 110 S.Ct. 1015, 108 L.Ed.2d 157 [1990] [quoting Chapman, 129 U.S. at 682, 9 S.Ct. 426]. The only exception to this rule is a corporation's citizenship, which is [1] the state of incorporation, and [2] the state where the corporation's principal place of business is located. 28 U.S.C. §1332[c][1]. The corporation exception coincides with the common law's tradition of treating only incorporated groups as legal persons and accounting for all other groups as partnerships. Puerto Rico v. Russell & Co., 288 U.S. 476, 480, 53 S.Ct. 447, 77 L.Ed. 903 [1933]. The Supreme Court has repeatedly resisted extending the corporation exception to other entities. See, e.g., Carden, 494 U.S. at 186, 189, 195-96, 110 S.Ct. 1015 [declining to extend the corporation exception to a limited partnership]; United Steelworkers of Am. v. R.H. Bouligny, Inc., 382 U.S. 145, 146-47, 153, 86 S.Ct. 272, 15 L.Ed.2d 217 [1965] [declining to extend the corporation exception to an unincorporated labor union]; Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456-57, 20 S.Ct. 690, 44 L.Ed. 842 [1900] [declining to extend the corporation exception to a limited partnership association]; Chapman, 129 U.S. at 682, 9 S.Ct. 426 [declining to extend the corporation exception to a joint-stock company]. We recognize numerous similarities exist between a corporation and an LLC, but Congress is the appropriate forum to consider and, if it desires, to apply the same “citizenship” rule for LLCs as corporations for diversity jurisdiction purposes. This issue appears resolved by Justice Antonin Scalia's analysis in Carden: “[T]he course we take today does not so much disregard the policy of accommodating our diversity jurisdiction to the changing realities of commercial organization, as it honors the more important policy of leaving that to the people's elected representatives. Such accommodation is not only performed more legitimately by Congress than by courts, but it is performed more intelligently by legislation than by interpretation of the statutory word “citizen.” ... We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision.” Carden, 494 U.S. at 197, 110 S.Ct. 1015; see Cosgrove v. Bartolotta, 150 F.3d 729, 731 [7th Cir.1998] [concluding that, because an LLC resembled a limited partnership and “members of associations are citizens for diversity purposes unless Congress provides otherwise,” an LLC's citizenship “for purposes of diversity jurisdiction is the citizenship of its members”]. We dutifully adhere to the same principle.” Also, see historical summary of holdings by District Judge Doherty in the Western District of Louisiana. Logan v. Hit or Miss, LLC, Not Reported in F.Supp.2d, 2009 WL 1035018 [U.S.D.C. W.D. La. 2009]. It is required to examine the citizenship of each member of the limited liability company and trace back to each human being or corporate member in order to examine the “citizenship” of the LLC.
In this case, at the time of the removal and the suit filing in state court, Evergreen Processing, LLC, has two members: John Hardy and NorthStar Farms, LLC. John Hardy is a major domiciliary of Waskom, Texas. Therefore, Evergreen Processing, LLC, is a Texas citizen and only a Texas citizen regardless of where it may have operations, holdings or employees. NorthStar Farms, LLC, has one member and that is Mary Hardy, who is a major domiciliary of Waskom, Texas. Therefore, NorthStar Farms, LLC, is a Texas citizen and only a Texas citizen regardless of where it may have operations, holdings or employees.
JAMES P. HARDY, JR., MARY HARDY, and JOHN HARDY are each major domiciliaries of Waskom, Texas. JAMES HARDY and MARY HARDY are husband and wife. JOHN HARDY is their son.
ELITE COIL TUBING SOLUTIONS, LLC, is an unincorporated association formed as a limited liability company. The corporate citizenship rule does not apply to it either. In this case, ELITE COIL TUBING SOLUTIONS, LLC, has one member, James P. Hardy, Jr., who is a major domiciliary of Waskom, Texas. Therefore, ELITE COIL TUBING SOLUTIONS, LLC, is a Texas citizen and only a Texas citizen regardless of where it may have operations, holdings or employees.
HARDY ENERGY SERVICES, INC., is a corporation that was organized in Louisiana and has its principal place of business in Louisiana. While the corporate citizenship rule applies, the removing parties show that HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and MARY HARDY are nominal parties named by Helen Bartmess improvidently and as a sham. HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and MARY HARDY are parties who hold positions of being creditors to George Bartmess and have nominal interests in the lis pendens issue over which Helen Bartmess has filed her claims.
Indeed, on more than one occasion, George Bartmess and his counsel, now counsel for Helen Bartmess, have questioned why HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and MARY HARDY are plaintiffs in the pending Civil Action styled as “James P. Hardy, et al v. Helen Bartmess, as Executrix of the Estate of George Bartmess, Deceased, 09CV0041, United States District Court in and for the Eastern District of Arkansas, Northern Division” and the parallel state court action of Hardy, et al v. Bartmess, et al, Suit no. 526,248, 1st Judicial District Court, Caddo Parish, Louisiana] in Caddo Parish, Louisiana and have opined that HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and MARY HARDY are nominal parties. Helen Bartmess is a named and served defendant in Hardy, et al v. Bartmess, et al, suit no. 526,248, 1st Judicial District Court, Caddo Parish, Louisiana, and she failed to assert the required compulsory counterclaims in that Louisiana-based Action. La. C.C.P. article 1061. [[“Art. 1061. Actions pleaded in reconventional demand; compulsory.
A. The defendant in the principal action may assert in a reconventional demand any causes of action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands.
B. The defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103 or in an action under Civil Code Article 186, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.”]] That Action has been pending since 2009. Helen Bartmess, a Louisiana domiciliary, is a proper defendant in that Action and has failed to assert Reconventional Demands in that Action although absolutely required to do so given that, according to her own Petition in this Action. Helen Bartmess admitted that she is a Louisiana domicile and is unable to contest jurisdiction.
As nominal parties, the citizenship of HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and MARY HARDY should not be considered in this removal. Infra. Of course, the only nominal party which could affect diversity is HARDY ENERGY SERVICES, INC. The joinder of these removing parties in Helen Bartmess’s claims in this action is nothing more than a sham to apparently try and prevent diversity although Helen Bartmess made repeated reference to diversity jurisdiction in her pleading. That appears to have been an afterthought in the drafting and filing process by Helen Bartmess.
From a review of Helen Bartmess’s pleading, it is clear that she initially believed that it had to be filed in the federal proceeding as she repeatedly referenced, in the nature of an ad damnum statement, that her damages exceeded the amount necessary to meet diversity subject matter jurisdiction requirements. Counterclaim and Third Party Demand, ¶27, 33. There would be absolutely no reason to make those statements except that BARTMESS recognized that the claims either should be filed in the pending federal proceeding [despite failure to file them as compulsory counterclaims in the Caddo Parish, Louisiana, Action] or she recognized that, absent same, the pleading would prompt inquiry into the demands for jurisdictional and removal purposes. Discussed further infra.
The court is aware that there is a related Action pending in this Honorable Court and is captioned “James P. Hardy, et al v. Helen Bartmess, as Executrix of the Estate of George Bartmess, Deceased, 09CV0041, United States District Court in and for the Eastern District of Arkansas, Northern Division.” That Action is also pending before Your Honor.
[b] Removal was timely
The time delay for removal is 30 days from receipt of any paper indicating that removal is possible. Removing parties have not been served with any paper whatsoever but understand that Evergreen Processing, LLC’s attorney, Al Eckert, received a ‘courtesy copy’ of the proposed filing by Helen Bartmess on November 1, 2011. Under any possible argument, this removal is timely. Lovern v. General Motors Corp., 121 F.3d 160, 162 [4th Cir.1997].
[c] Nominal Party/Sham Joinder of HARDY ENERGY SERVICES, INC.
The last issue to be addressed further is that of the naming of HARDY ENERGY SERVICES, INC., as a defendant in claims by Helen Bartmess. One exception to the complete diversity rule, in 28 U.S.C. 1332, however, is the doctrine of fraudulent or improper [sham] joinder, in which the removing party contends that the federal forum to which he is entitled is being denied by the claimant through joinder of a non-diverse defendant improperly or upon such a nominal claim that it is no more than a sham to have named that party. Helen Bartmess chose the forum in which to file claims against the third parties, who did not select the forum for this litigation. Helen Bartmess is involved in the Louisiana state court action with the same parties and failed to assert her claims therein although she is required to do so.
Competing interests, the plaintiff's [mostly unlimited] right to choose his forum against the defendant's [conditional] right to a federal forum, are generally resolved by the judicially created doctrine of fraudulent joinder. Bentley v. Halliburton Oil Well Cementing Co., 174 F.2d 788, 791 [5th Cir.1949] [“The doctrine of fraudulent joinder had its inception in the courts, and originally was a judicial pronouncement intended to protect non-resident defendants from any misstatement of fact or misjoinder of parties or causes of action knowingly made by plaintiffs for the purpose of ... defeating removal to a federal court.”]. “The fraudulent-joinder doctrine tries to strike a reasonable balance among not rewarding abusive pleading by the plaintiff, the plaintiff's tactical prerogative to select the forum, and the defendant's statutory right to remove.” 14B Wright, Miller & Cooper, Federal Practice and Procedure § 3723 [3d ed.1998] at 625-29.
Helen Bartmess is also a defendant in another Action in this court, albeit in a representative capacity, where her deceased husband’s estate had asserted the same claims as she now attempts to make in this Action. James P. Hardy, et al v. Helen Bartmess, as Executrix of the Estate of George Bartmess, Deceased, 09CV0041, United States District Court in and for the Eastern District of Arkansas, Northern Division. Helen Bartmess has not sought to bring her claims in that Action through intervention although the same, exact claims were the subject of her deceased husband’s proposed counterclaims. In that Action, the court twice denied George Bartmess’s motions to force removal of the lis pendens and also dismissed George Bartmess’s wrongful lis pendens claims, asserted slander of title, abuse of process, etc., claims on motion to dismiss. DKT #40, 72. Now, Helen Bartmess attempts to end-run the Action and file the same claims in this Action which commenced in Arkansas state court action as an ancillary action. Further, Helen Bartmess failed to state these claims in the Caddo Parish, Louisiana state court action as compulsory counterclaims required to be filed in that court. Hardy, et al v. Bartmess, et al, suit no. 526,248, 1st Judicial District Court, Caddo Parish, Louisiana. This is the same Action that the Lis Pendens Notice arose from and which Helen Bartmess now claims is wrongful and harmful to her.
V. THE LIS PENDENS ISSUE
Plaintiffs’ claims in Action No. 09CV0041 include a request for declaratory relief related to the sand rights in the Bartmess lands. Those claims have been plead since the inception of the suit and are viable for trial. Those same claim in present in the lawsuit of Hardy, et al v. Bartmess, et al, suit no. 526,248, 1st Judicial District Court, Caddo Parish, Louisiana. Hardy, et al v. Bartmess, et al, suit no. 526,248, 1st Judicial District Court, Caddo Parish, Louisiana, was filed first and before Action No. 09CV0041 and long before this Action.
A Lis Pendens has been filed in the Izard County [Arkansas] Clerk of Court mortgage and conveyance records. The Lis Pendens properly placed a notice into the clerk of court records providing that the Louisiana litigation involved claims affecting [sand rights and interests] title to the Izard County land and asserted rights as to the subject lands.
Article 3751 of the Louisiana Code of Civil Procedure authorizes a plaintiff, in any court, state or federal, to file a notice of lis pendens and, unless such a notice is filed, the litigation itself is ineffective to give notice to third persons thereby subjecting the third persons to the result of the litigation to the extent that notice would affect the third person’s rights. [[Comparably, the common law doctrine of “lis pendens” provides that interest in property acquired during pendency of litigation regarding that property is subject to outcome of litigation, provided that transferee or purchaser of property receives notice of pending lawsuit. Meliani v. Jade Dunn Loring Metro, LLC, 286 F.Supp.2d 741 [U.S.D.C. E.D. Va. 2003].]] The doctrine of lis pendens, and statutes that codify it, are designed to ensure that litigation regarding property ownership continue uninterrupted such that any relief granted in litigation may be enforced against property owner, even when there is transfer or sale of property while litigation is pending. Meliani v. Jade Dunn Loring Metro, LLC, 286 F.Supp.2d 741 [U.S.D.C. E.D. Va. 2003]. The subject Lis Pendens is in the proper form. La. C.C.P. art. 3752[A].
Louisiana law provides only for certain methods of cancellation, i.e., a judgment rendering in the action that gave to the notice. Louisiana law does not provide for cancellation of a lis pendens by another court in the manner requested by Bartmess. [[McGregor v. McGregor, 101 F.Supp. 848 [U.S.D.C. Colo. 1951] [Motion to quash would not be granted when law of such state made no provision for cancellation of notice by any court at any time].]] This matter involves a matter of state substantive law. Fed.R.Civ.Proc. 64 [does not provide for federal procedural lis pendens]. Indeed, the Lis Pendens at issue involves a state court proceeding and a Lis Pendens filed related to that state court proceeding. Further, the Lis Pendens is filed in the Izard County Clerk of Court’s offices. The Lis Pendens at issue is not a Lis Pendens notifying anyone of this federal action or Action No. 09CV0041. Per the comments to Rule 64, the filing of a federal action is itself deemed notice to the public of that action. Hence, the situation here differs from Frederick v. Baxter Arms Corp., 39 F.Supp. 609 [U.S.D.C. E.D. N.Y. 1941].
The Louisiana state court is fully able and capable of dealing with cancellation of the Lis Pendens and, indeed, Helen Bartmess is required by law to file her counterclaims there but she elected not to. The Louisiana state court will apply Louisiana law to a notice issued from that state court action relating to the sand rights in Izard County, Arkansas. The notice itself is not an adjudication of the merits of that state court action but is notice as contemplated by Louisiana law governing Lis Pendens [Notice of Pendency] and must be applied. Louisiana law does not afford Bartmess the remedy of having the notice canceled by applying to a different court, in a different action, for cancellation of the notice. [[For example, New York utilizes a similar state law mechanism for addressing Lis Pendens arising under New York law. Diamond v. Pataki, Not Reported in F.Supp.2d, 2007 WL 485962 [U.S.D.C. S.D. N.Y. 2007].]]
The same plaintiffs, except HARDY RESOURCES, LLC, filed a Lis Pendens arising from the Louisiana state court action. Defendant seeks damages, declaratory judgment and injunctive relief, concerning the Lis Pendens, in this Action affecting matters arising solely and exclusively in the state court and under state laws. In Action No. 09CV0041, Defendant previously attempted twice to have this Honorable Court cancel and annul the Lis Pendens by a prior motion, which was denied by Judge Holmes. Hardy v. Bartmess, Slip Copy, 2009 WestLaw 2767034, [U.S.D.C. E.D. Ark. August 21, 2009] and Hardy v. Bartmess, 696 F.Supp.2d 1008 [U.S.D.C. E.D. Ark. March 8, 2010].
In Hardy v. Bartmess, 696 F.Supp.2d 1008 [U.S.D.C. E.D. Ark. March 8, 2010], Judge Wright dismissed George Bartmess’s claims, which are the same as now asserted by his wife Helen Bartmess, by holding:
“Slander of Title.
“Slander of title is an action based on malicious publication of a false matter that disparages title.” Fleming v. Cox Law Firm, 363 Ark. 17, 20, 210 S.W.3d 866, 868 (2005) (citing Sinclair Ref. Co. v. Jones, 188 Ark. 1075, 70 S.W.2d 562 (1934)). In support of his claim, Bartmess alleges that the filing of the lis pendens was improper because “there were no allegations that would have affected title to George Bartmess' land in the Louisiana action, nor did Arkansas law permit a Lis Pendens to be filed by an out-of-state court that would have no jurisdiction to affect title to Arkansas under ACA § 16-59-101, et seq. This Lis Pendens constituted a false statement.” Counterclaim, ¶ 25. Bartmess further alleges: “Plaintiffs recorded this either with negligence ... or with absolute knowledge that the filing of a List Pendens under these circumstances are improper.” Counterclaim, ¶ 26. According to Bartmess, the plaintiffs filed the *1015 lis pendens in order to “tie up the property of George Bartmess” and to obtain leverage in the settlement negotiations between the parties. In an action for slander of title, it is essential that the plaintiff prove that the defendant acted with malice, express or implied, in making slanderous statements regarding the title of another in property. See Sinclair Refining Co. v. Jones, 188 Ark. 1075, 70 S.W.2d 562 (1934). Malice is not present where the allegedly slanderous statements were made in good faith and based on a reasonable belief in their veracity. See Elliott v. Elliott, 252 Ark. 966, 482 S.W.2d 123 (1972). As previously explained, based on allegations contained in Hardy's Louisiana complaint,FN4 the Louisiana action has the potential to affect title to the Bartmess land. Plaintiffs' initiation of litigation to determine the rights of the parties with respect to the property cannot, without more, be characterized as malicious conduct. Accordingly, the Court finds that Bartmess fails to state a claim for slander of title. [[FN4. The Court may take judicial notice of public records without converting a motion to dismiss into one for summary judgment. Stahl v. U.S. Dept. of Agriculture, 327 F.3d 697, 700 (8th Cir.2003).]]
Abuse of Process
In support of his abuse of process claim, Bartmess alleges that Plaintiffs “willfully used the Lis Pendens in a manner not proper in the regular conduct of any court proceeding.” Counterclaim, ¶ 29. Bartmess alleges that Plaintiffs filed a notice of lis pendens “to accomplish an ulterior purpose for which Lis Pendens was not designed in that they filed it to encumber and tie up the property of George Bartmess so that he could not sell any property as he was entitled to under currently existing agreements at that time, mortgage the property to finance any other financial ventures, and gain leverage over negotiations that were occurring at that time between certain of the Plaintiffs and George Bartmess.” Id. A plaintiff must establish three elements to prevail on an abuse of process claim: (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success; (2) perverted to accomplish an ulterior purpose for which it was not designed; and (3) a wilful act in the use of process not proper in the regular conduct of the proceeding. See Union Nat. Bank of Little Rock v. Kutait, 312 Ark. 14, 16-17, 846 S.W.2d 652, 654 (1993). The Supreme Court of Arkansas has explained that “abuse of process is somewhat in the nature of extortion or coercion” and the “ ‘key is improper use of process after issuance, even when issuance has been properly obtained.’ ” Id. (quoting Smith v. Nelson, 255 Ark. 641, 644, 501 S.W.2d 769, 770-71 (1973)). In this case, Bartmess alleges that Plaintiffs had an ulterior purpose for filing the notice of lis pendens, but he does not allege that Plaintiffs committed a coercive act after they filed the notice. Accordingly, the Court finds that Bartmess fails to allege facts to support an abuse of process claim. See Smith v. Nelson, 255 Ark. 641, 644, 501 S.W.2d 769, 770-71 (1973)(“Although it be said that McAdams' testimony confirmed an ulterior purpose in procuring the warrant, no coercive act followed.... We hold that the facts, when viewed most favorably to appellee, do not support a submissible issue on abuse of process.”).”
Now, Helen Bartmess, in an effort to end run what her husband could not do in federal court, filed the state court claims making the same allegations that her husband did in federal court unsuccessfully. [["Litigation is not a sport in which the hunter may release a trapped quarry for the thrill of further chase." Wrenn v. Secretary, Dept. of Veterans Affairs, 918 F.2d 1073 [2d Cir. (N.Y.)1990].]]


Respectfully submitted,

Bodenheimer, Jones & Szwak, LLC



By:
David A. Szwak, LBR# 21157, TA
416 Travis Street, Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400
FAX 221-6555
ATTORNEYS FOR EVERGREEN PROCESSING, LLC, JAMES P. HARDY, JR., MARY HARDY, HARDY ENERGY SERVICES, INC., ELITE COIL TUBING SOLUTIONS, LLC, NORTHSTAR FARMS, LLC, and JOHN HARDY

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel of record by ECF and by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the ___ day of _________________, 201___.




___________________________________
OF COUNSEL
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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