United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b)(1), this case was referred to the
undersigned United States Magistrate Judge for review and
submission of a report with recommended findings of fact and
conclusions of law. Doc. 13. On September 6, 2016, Plaintiff
Kawayne Steel filed this lawsuit against Viscofan USA, Inc.
(“Viscofan”) in the Circuit Court of Montgomery
County, Alabama. Doc. 1-1. After the Circuit Court severed
Steel's tort claims from his workers' compensation
claim, Viscofan removed the tort claims to this court on May
31, 2017. Doc. 2. Now before the court is Steel's Motion
to Remand. Doc. 8. After careful consideration of the
parties' submissions, see Docs. 8, 9, 11, 17
& 18, and the applicable law, the undersigned recommends
that the motion to remand be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
employed Steel as a machine operator in an industrial
facility in Montgomery County. Doc. 2-2 at 3. On March 23,
2016, Steel cut his left arm as he fed a meat casing onto a
machine, resulting in significant injuries. Doc. 2-2 at 3-4.
According to his complaint, the defendants improperly
designed, manufactured, installed, distributed, sold, or
assembled this machine, causing Steel's injuries. Doc.
2-2 at 5.
Steel brought state-law claims against Viscofan in the
Circuit Court pursuant to the Alabama Extended
Manufacturer's Liability Doctrine (“AEMLD”)
and for negligence and wantonness. Doc. 2-1 at 5-8. Steel
also brought a workers' compensation claim. Doc. 2-1 at
4. He joined all of these claims in the same lawsuit,
designated by the Circuit Court as Civil Action Number
03-CV-2016-901184. Docs. 2-1 & 2-6. Viscofan removed the
case to this court on October 6, 2016, and then moved to
sever and to remand the workers' compensation claim.
See Steel v. Viscofan USA, Inc., 2017 WL 253960, *1
(M.D. Ala. Jan. 19, 2017). The undersigned declined to sever
the claims and remanded the entire case. Id. at *4.
state court, Steel amended his complaint to add several
foreign corporations as defendants. See Doc. 2-2.
Then, on May 1, 2017, the state court severed Steel's
workers' compensation claim from his tort claims pursuant
to Rule 21 of the Alabama Rules of Civil
Procedure over Steel's objection. Docs. 2-6 at
311 & 17-3. The new case--consisting only of Steel's
tort claims--was docketed as Civil Action Number
03-CV-2017-000261. Doc. 2-8. Viscofan removed this new
lawsuit on May 31 on the basis of diversity jurisdiction. The
notice of removal alleges that Viscofan is a citizen of
Delaware and Illinois; Defendants Viscofan SA, Master
Automatismos SL, and Disenos y Projectos Electronicos are
citizens of Spain; and Defendant Kuko is a citizen of
China. Doc. 2 at 5. Viscofan asserts that the
case meets the requirements for diversity jurisdiction
because Steel is a citizen of Alabama and his claims place
more than $75, 000 in controversy. Doc. 2 at 4-10. Steel does
not dispute that the parties are diverse or that the amount
in controversy exceeds the jurisdictional threshold,
see Doc. 9, but nevertheless presents three
arguments for remand, as explained below. These arguments are
ultimately unavailing, and the undersigned concludes upon an
independent review of the record that the prerequisites for
federal jurisdiction have been satisfied.
a court of limited jurisdiction. Only cases that originally
could have been filed in federal court may invoke this
court's jurisdiction through removal from a state court.
E.g., 28 U.S.C. § 1441(a); Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). The
“removing defendant bears the burden of proving proper
federal jurisdiction.” Leonard v. Enter. Rent a
Car, 279 F.3d 967, 972 (11th Cir. 2002) (citing
Williams v. Best Buy Co., Inc., 269 F.3d 1316,
1319-20 (11th Cir. 2001)). In analyzing whether the defendant
has carried that burden, the “removal statutes are
construed narrowly” and “uncertainties are
resolved in favor of remand.” Burns, 31 F.3d
at 1095 (citing Boyer v. Snap-on Tools Corp., 913
F.2d 108 (3rd Cir. 1990), and Coker v. Amoco Oil
Co., 709 F.2d 1433 (11th Cir. 1983)). Here, the
undersigned concludes that there is no uncertainty over
Viscofan's proof of federal jurisdiction.
Section 1445(c) Non-Removability
first argues that, “[b]ecause this action arises under
Alabama's Workers Compensation Act, it is non-removable
pursuant to  U.S.C. § 1445(c).” Doc. 9 at 6.
Steel is correct to contend that federal courts lack
subject-matter jurisdiction over workers' compensation
claims, Formosa v. Lowe's Home Centers, Inc.,
806 F.Supp.2d 1181, 1186 (N.D. Ala. 2011), and that any case
“arising under the workmen's compensation
laws” of a state is not removable. 28 U.S.C. §
1445(c). However, Steel fails in his attempt to shoehorn his
tort claims into § 1445(c).
Reed v. Heil Company, the Eleventh Circuit
distinguished certain common-law causes of action from
state-law retaliatory discharge claims in concluding that
retaliatory discharge claims arise under the Alabama
workers' compensation statute. See Reed v. Heil
Co., 206 F.3d 1055, 1058-60 (11th Cir. 2000).
Specifically, the court found that the retaliatory discharge
statute is “an integral part of Alabama's
workers' compensation regime” because it had been
“[c]odified together with the remaining workers'
compensation laws [and] passed to enhance the efficacy of the
overall workers' compensation system.” Id.
at 1060. Court decisions involving common-law tort-like
claims--including one for an employer's intentional
injury to its employees--were “inapposite”
because the common-law claims “are so different from
Alabama's retaliatory discharge statute.”
Id. Applying Reed when Viscofan first
removed this case, the undersigned concluded that Steel's
tort claims “are precisely the type of common-law
claims distinguished by the Reed court, ” and
therefore they do not implicate § 1445(c).
Steel, 2017 WL 253960, at *2; see also Payne v.
J.B. Hunt Transp., Inc., 154 F.Supp.3d 1310, 1315 (M.D.
Fla. 2016) (holding that a negligence claim does not arise
under Florida's workers' compensation law); Moore
v. CAN Found., 472 F.Supp.2d 1327, 1329 n.* (M.D. Ala.
2007) (“[I]t appears that a common-law cause of action
related to a workers' compensation claim is not affected
by § 1445(c).”). Then as now, Steel's tort
claims do not arise under Alabama's workers'
compensation law within the meaning of § 1445(c), and
therefore this statute does not preclude removability.
Steel relies on the voluntary/involuntary doctrine, which
bars removal in certain circumstances even when the
requirements of federal jurisdiction are otherwise satisfied.
Doc. 9 at 7. Specifically, Steel points to Priest v.
Sealift Services International, Inc., 953 F.Supp. 363
(N.D. Ala. 1997), for the proposition that “[a] case
does not suddenly become removable after having been
non-removable unless and except by some voluntary
act of [the] plaintiff.” Priest, 953 F.Supp.
at 364. Priest itself is factually distinguishable,
as the Priest court was careful to note that
“despite the severance, this was, at the time of
removal, still one case.” Id. at 363. The same
cannot be said for the instant case, in which the state-court
severance resulted in two separate actions with unique case
numbers. See Docs. 2-6 (Civil Action Number
03-CV-2016-900184) & 2-8 (Civil Action Number
03-CV-2017-000261). This fact alone undercuts Steel's
reliance on Priest, but it does not foreclose the
applicability of the voluntary/involuntary doctrine despite
the rule's genesis in 1890s case law and an outdated
statutory removal scheme. See Weems v. Louis Dreyfus
Corp., 380 F.2d 545, 547 (5th Cir. 1967) (tracing the
doctrine's lineage to Powers v. Chesapeake & Oh.
Ry. Co., 169 U.S. 92 (1898), and Whitcomb v.
Smithson, 175 U.S. 635 (1900), in reaffirming the
doctrine following the 1949 amendments to § 1446).
due to this lineage, the voluntary/involuntary doctrine
demands a nuanced analysis of modern Eleventh Circuit
precedent. As explained below, the court first finds that the
applicability of the doctrine is not limited to involuntary
dismissals of non-diverse defendants. Next, even though the
court finds that the doctrine is broad enough that it might
impact involuntary Rule 21 severances, the undersigned
concludes that the doctrine does not bar the instant removal