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Shanks v. Globe Metalluroical, Inc.

United States District Court, S.D. Alabama, Northern Division

June 20, 2019

TOMMIE JEAN SHANKS, et al., Plaintiffs,
v.
GLOBE METALLURGICAL, INC., et al., Defendants.

          ORDER

          JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Magistrate Judge's Report and Recommendation (Doc. 30), and Defendant A & G's Objection (Doc. 31). After de novo review of the record, and the benefit of oral argument on May 17, 2019, this Court REMANDS the action.

         BACKGROUND

         Stephen Jamar Shanks was injured in a job-related accident on April 24, 2018 while working for Globe Metallurgical, Inc., (“Globe”) in Dallas County, Alabama. (Doc. 15, p. 3). On May 4, 2018, Plaintiffs Tommie Jean and Willie Lee Shanks, in their individual capacities and as “next to [sic] friend(s)” of Stephen Jamar Shanks, sued Globe and several Fictitious Defendants. (Doc. 1-7, pp. 1 - 13). In their Original Complaint, Plaintiffs brought these claims against Globe and those Fictitious Defendants:

1) Worker's Compensation Benefits and Medical Expenses against Globe to which Stephen or his dependents are entitled;
2) Removal of Safety Devices against Fictitious Defendants A and B;
3) Removal of Safety Devices against Fictitious Defendants A and B;
4) Alabama Extended Manufacture Liability Doctrine against Fictitious Defendants C - H;
5) Failure to Worn [sic] / Negligence against Fictitious Defendants;
6) Negligence / Failure to Warn or Guard against Fictitious Defendants C - H; and
7) Loss of Consortium against all Defendants.[1]

(Doc. 1-7, pp. 5 - 12). Stephen Shanks died on May 6, 2018, due to his injuries.

         After Stephen's death, Plaintiffs filed their First Amended Complaint (“FAC”) in the Dallas County Circuit Court. (Doc. 1-7, pp. 191 - 204). In the FAC, Plaintiffs added Erica Acoff “both individually as a dependent of Stephen Jamar Shanks deceased, and as a next of friend to JAMAR ACOFF, a minor child and dependent of Stephen Jamar Shanks deceased.” (Doc 1-7, p. 192). In the FAC, Tommie Jean and Willie Lee Shanks remained parties in their capacities as “individual(s)” and “next to [sic] friends” of Stephen Jamar Shanks. (Id.). Plaintiffs also named Defendants A & G Manufacturing, Inc. (“A & G”) and Yale Carolinas, Inc. (“Yale”), bringing third party tort claims against them. (Doc. 1-7, pp. 196 - 204). Last, Plaintiffs asserted claims against Fictitious Defendants ‘A,' ‘B,' and ‘C' for the removal of safety devices. Plaintiffs identified those Fictitious Defendants:

. . . those Alabama resident adult citizens who were co-employees of Stephen Jamar Shanks whose willful, intentional, and otherwise wrongful acts either caused or contributed to cause the injuries and damages to the Plaintiffs, all of whose true and correct names are unknown to the Plaintiffs at this time but will be substituted by amendment once ascertained . . .

(Doc. 1-7, p. 194). Plaintiffs brought these claims in their FAC:

1) A claim for worker's compensation benefits against Globe for compensation and medical care expenses;
2) Removal of Safety Devices against Fictitious Defendants A - C;
3) Removal of Safety Devices against Fictitious Defendants A - C;
4) An AEMLD claim against A & G and Yale;
5) A Dual Capacity claim against Globe;
6) A claim for Failure to Warn or Guard against A & G and Yale;
7) An AEMLD claim against Fictitious Defendants D - F;
8) A Negligent Failure to Warn / Guard claim against Fictitious Defendants D - F;
9) A Negligent Failure to Inspect claim against Fictitious Defendants G - I; and
10) A Loss of Consortium Claim by Tommie Jean and Willie Lee Shanks against all Defendants.[2]

(Doc. 1-7, pp. 195 - 204).

         After Plaintiffs filed their FAC, Defendant A & G, with the consent of Defendants Globe and Yale, removed this action to this Court under 28 U.S.C. §§ 1332, 1441, and 1446. In its Notice of Removal, A & G claimed this Court had diversity jurisdiction over Plaintiffs' claims against it, Yale, and Globe Manufacturing (insofar as the claims against Globe did not concern the Alabama Worker's Compensation Act). (Doc. 1, p. 2). A & G cited Lamar v. The Home Depot,907 F.Supp.2d 1311 (S.D. Ala. 2011), in which this Court held that when an action is removed on diversity grounds under 28 U.S.C. 1441(a) and the action contains ...


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