Mayfield v. Shelley's Electrical Service Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

JUSTIN MAYFIELD, et al., )

)

Plaintiffs, )

)

v. ) Case No. 4:21-cv-00828-NAD

)

SHELLEY’S ELECTRICAL )

SERVICE INC., et al., )

)

Defendants. )

MEMORANDUM OPINION GRANTING IN PART

AND DENYING IN PART MOTION TO SEVER AND REMAND

For the reasons stated below and on the record in the December 15, 2021

motion hearing, the court GRANTS IN PART and DENIES IN PART Defendant

Consolidated Design and Machine Inc.’s “Motion To Sever And Remand” (Doc. 9).

The court GRANTS the motion to remand, but DENIES the motion to sever.

Consequently, the court will REMAND the entire case to the Circuit Court for

Etowah County, Alabama, for lack of subject matter jurisdiction. The court will

enter a separate remand order.

INTRODUCTION

Plaintiffs Justin and Candida Mayfield filed a complaint in the Etowah County

Circuit Court, alleging personal injury claims against Defendant Shelley’s Electrical

Service, Inc., and a workers’ compensation claim against Defendant Consolidated.

Doc. 1-1. Defendant Shelley’s removed the case to this court, alleging that the court

had diversity jurisdiction over the Mayfields’ personal injury claims. Doc. 1 at 3–

7.

Defendant Consolidated filed this motion to sever and remand, asking that the

court sever the Mayfields’ workers’ compensation claim against Consolidated and

remand that claim back to state court, and that the court retain jurisdiction over the

Mayfields’ personal injury claims against Shelley’s. Doc. 9.

But, based on the plain language of the controlling removal statutes, the court

must remand this entire case—including the personal injury claims against

Shelley’s—back to state court.

BACKGROUND

A. Background allegations

The Mayfields allege that, on or about April 29, 2019, Justin was an employee

of Consolidated. Doc. 1-1 at 3. As part of his employment, Justin was working on

a dock leveler.1 Doc. 1-1 at 3. Shelley’s allegedly was responsible for the wiring

of the dock leveler’s control box. Doc. 1-1 at 3.

Because of an alleged problem with the wiring of the dock leveler’s control

box, the dock leveler fell on top of Justin and trapped him. Doc. 1-1 at 3–5. As a

1 A dock leveler is a piece of equipment used to bridge a height difference between

a loading dock and a transport vehicle. See

https://dictionary.university/Dock%20leveler (last visited January 25, 2022).

result of the incident, Justin suffered serious injuries. Doc. 1-1 at 5.

B. Procedural background

The Mayfields (Candida is Justin’s wife) filed a complaint in Alabama state

court against Consolidated and Shelley’s. Doc. 1-1. The Mayfields alleged a state

law workers’ compensation claim against Consolidated, and state law claims for

negligence, wantonness/recklessness, and loss of consortium against Shelley’s. Id.

On June 18, 2021, Defendant Shelley’s removed the case, alleging that this

court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. Doc. 1 at 3.

The notice of removal alleged that the Mayfields are citizens of Alabama.

Doc. 1 at 4. Consolidated also is a citizen of Alabama. Doc. 1 at 4. Shelley’s is

a citizen of Mississippi. Doc. 1 at 4.

In its notice of removal, Shelley’s alleged that this court had diversity

jurisdiction over the case because the amount in controversy requirement was met,

and because the Mayfields are completely diverse from Shelley’s. Doc. 1 at 3–13.

Shelley’s argued that the court should disregard the lack of diversity between the

Mayfields and Consolidated because the court properly could sever and remand to

state court the Mayfields’ workers’ compensation claim against Consolidated. Doc.

1 at 3–7.

After the parties consented to magistrate judge jurisdiction pursuant to 28

U.S.C. § 636(c) (Doc. 8), Consolidated filed this motion to sever and remand on July

14, 2021 (Doc. 9). Consolidated argued that, because the Mayfields’ workers’

compensation claim is statutorily nonremovable under 28 U.S.C. § 1445(c), the court

must remand that claim for lack of subject matter jurisdiction. Id. The motion

stated that all parties agree and consent to remand of the Mayfields’ workers’

compensation claim. Doc. 9 at 3.

But the motion did not specifically address any basis for the court to sever that

claim from the personal injury claims against Shelley’s, and to retain jurisdiction

over those personal injury claims. Doc. 9. Instead, Consolidated acknowledged

that “[o]ther U.S. District Courts in the Northern District of Alabama have held that,

when removal is based on diversity of citizenship, the entire action should be

remanded when complete diversity is destroyed by the proper joinder of a defendant

against whom a workers’ compensation claim is asserted.” Doc. 9 at 2–3 (citing

cases; emphasis added).

This case was reassigned to the undersigned on August 30, 2021. Doc. 13.

The undersigned held a status conference on September 10, 2021, during which the

parties clarified that no party objected to the requested severance and partial remand.

See Doc. 20 at 1, 3. The undersigned then invited supplemental briefing on whether

the court could and/or should retain jurisdiction over the Mayfields’ personal injury

claims against Shelley’s, when remanding the Mayfields’ workers’ compensation

claim against Consolidated. Doc. 20.

Shelley’s filed a supplemental brief, arguing that the court can and should

maintain jurisdiction over the Mayfields’ personal injury claims. Doc. 23. Neither

the Mayfields nor Consolidated submitted a supplemental brief.

On December 15, 2021, the undersigned held a hearing on the motion to sever

and remand, and the related jurisdictional issues. See Minute Entry (Entered:

12/15/2021).

LEGAL STANDARD

“Federal courts are courts of limited jurisdiction.” Burns v. Windsor Ins. Co.,

31 F.3d 1092, 1095 (11th Cir. 1994). Generally speaking, federal subject matter

jurisdiction over a civil case requires either a question “arising under the

Constitution, laws, or treaties of the United States” (28 U.S.C. § 1331), or complete

diversity of citizenship (28 U.S.C. § 1332).

With respect to diversity, a federal court has jurisdiction where the matter “is

between . . . citizens of different States,” and where the amount “in controversy

exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C.

§ 1332(a)(1).

In addition, a defendant generally can remove from state court to federal court

“any civil action brought” in state court over which the “district courts of the United

States have original jurisdiction.” 28 U.S.C. § 1441(a).

“[T]he burden of establishing removal jurisdiction rests with the defendant

seeking removal.” Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013).

In this regard, the “removal statutes are construed narrowly”; and, “uncertainties”

about removal “are resolved in favor of remand.” Burns, 31 F.3d at 1095.

Moreover, the plaintiff is “the master of the complaint,” and is “free to avoid

federal jurisdiction” by “structuring his case to fall short of a requirement of federal

jurisdiction,” so long as “the method of avoidance is not fraudulent.” Scimone, 720

F.3d at 882 (quotation marks and citation omitted).

Because the “jurisdiction of a court over the subject matter of a claim involves

the court’s competency to consider a given type of case,” subject matter jurisdiction

“cannot be waived or otherwise conferred upon the court by the parties.” University

of S. Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (quoting

Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1000–01 (11th Cir. 1982)). A

“federal court is obligated to inquire into subject matter jurisdiction . . . whenever it

may be lacking.” Id.

If “at any time” after a defendant has removed a case to federal court but

“before final judgment,” it “appears that the district court lacks subject matter

jurisdiction,” then “the case shall be remanded.” 28 U.S.C. § 1447(c).

DISCUSSION

The Eleventh Circuit has been clear: “The starting point in statutory

interpretation is the language of the statute itself.” In re BFW Liquidation, LLC,

899 F.3d 1178, 1188 (11th Cir. 2018) (quoting Bankston v. Then, 615 F.3d 1364,

1367 (11th Cir. 2010)). “When the plain language of a statute is unambiguous, [the

court] need not—indeed, should not—look beyond that plain language to determine

its meaning.” Id. at 1189–90. Based on the plain language of the controlling

statutes, the court must remand this entire case back to state court for lack of subject

matter jurisdiction.

I. On the plain language of 28 U.S.C. § 1445(c), this action was not

removable, because of the nonremovable workers’ compensation claim.

On the plain language of § 1445(c), this action was not removable. Under

§ 1445(c), “[a] civil action in any State court arising under the workmen’s

compensation laws of such State may not be removed to any district court of the

United States.” 28 U.S.C. § 1445(c).

As explained above, the Mayfields’ complaint includes an Alabama state law

workers’ compensation claim against Defendant Consolidated. Doc. 1-1 at 6–7.

So, at a minimum, the Mayfields’ workers’ compensation claim never was

removable, and the court lacks subject matter jurisdiction over that claim. See Reed

v. Heil Co., 206 F.3d 1055, 1057 (11th Cir. 2000) (holding that federal courts lack

jurisdiction over claims arising under state workers’ compensation laws).

In this respect, the parties all agree. Because the Mayfields’ workers’

compensation claim against Consolidated is statutorily nonremovable, the court must

remand that claim. See Doc. 9 at 3 (“All parties agree and consent to remand of the

workers’ compensation claim to the Circuit Court of Etowah County, Alabama.”).

The court notes, however, that the plain language of § 1445(c) makes a “civil

action” nonremovable. 28 U.S.C. § 1445(c). The statute does not say that a

workers’ compensation claim is nonremovable and that other claims in the same

action can be removed from state court and then remain in federal court—e.g., when

severed from the nonremovable claim. Rather, it says that the action is

nonremovable.

That said (and as discussed in Part II infra), Congress has provided for an

exception, pursuant to which a defendant can remove an “entire” “civil action” that

includes a “nonremovable” workers’ compensation claim, and then the federal

district court can “sever” and “remand” that nonremovable claim and retain

jurisdiction over the remaining claims. See 28 U.S.C. § 1441(c). But that statutory

exception only applies where the case includes a federal claim for relief. See id.

II. The plain language of 28 U.S.C. § 1441(c) does not provide a basis for the

court to sever the personal injury claims from the nonremovable

workers’ compensation claim, and to retain jurisdiction over the personal

injury claims, because there is no federal claim for relief.

The plain language of § 1441(c) does not provide a basis for the court to sever

the Mayfields’ personal injury claims against Shelley’s from the Mayfields’

nonremovable workers’ compensation claim against Consolidated, and to retain

jurisdiction over those personal injury claims. As noted above, that is because

§ 1441(c) only applies where the complaint includes a federal claim for relief.

Under 28 U.S.C. § 1441(c), “[i]f a civil action includes” a federal claim for

relief,2 and a statutorily “nonremovable” claim,3 then “the entire action may be

removed if the action would be removable without the inclusion of the [statutorily

nonremovable claim].” 28 U.S.C. § 1441(c)(1) (emphasis added).

Then, after removal, § 1441(c) provides that the federal district court “shall

sever from the action” the statutorily nonremovable claim(s), and “shall remand the

severed claims to the State court from which the action was removed.” 28 U.S.C.

§ 1441(c)(2) (emphasis added).

So, where a defendant has removed a case that includes both a claim that

invokes federal question jurisdiction and a statutorily nonremovable claim, the

district court can sever and remand the nonremovable claim, and retain jurisdiction

over the federal-question claim. Indeed, the court must do so. See id. (court “shall

sever . . . and shall remand”).

In this regard, the Eleventh Circuit’s decision in Reed is at least consistent

with § 1441(c), and at most is entirely limited by that statutory provision. While

some of the language in Reed arguably is open-ended, the undisputed facts are that

2 28 U.S.C. § 1441(c)(1)(A) (“a claim arising under the Constitution, laws, or treaties

of the United States (within the meaning of [28 U.S.C. § 1331])”; i.e., a claim that

provides a basis for federal question jurisdiction).

3 28 U.S.C. § 1441(c)(1)(B) (“a claim not within the original or supplemental

jurisdiction of the district court or a claim that has been made nonremovable by

statute” (emphasis added)).

the defendant had removed a case that included both a federal claim for relief (under

the Americans with Disabilities Act or “ADA”), and a state law claim that the

Eleventh Circuit ruled was statutorily nonremovable. Reed, 206 F.3d at 1056–57.

After the district court had granted summary judgment on both claims, the Eleventh

Circuit affirmed on the federal ADA claim, and reversed and remanded on the

nonremovable state law claim. Id. at 1063. The Eleventh Circuit ruled that the

district court lacked jurisdiction over the nonremovable claim (under § 1445(c)), and

included instructions for the district court to remand that claim back to state court.

Id. at 1061, 1063.

With respect to the federal ADA claim, the Eleventh Circuit reasoned that

defendants “can remove civil actions over which the federal courts would have had

original jurisdiction,” and that the “federal district court would have had original

jurisdiction over [the plaintiff’s] ADA claim because it arose under federal law.”

Id. at 1058 (citing 28 U.S.C. § 1441(a); 28 U.S.C. § 1331).4

Stated simply, along with § 1441(c), Reed supports severance-and-remand

where the case includes a federal claim and a nonremovable state law claim. See

id. But, in the absence of a federal claim, the plain language of § 1441(c) does not

4 “In addition, federal courts can exercise supplemental jurisdiction over state law

claims that form part of the same case or controversy as the claim with original

federal jurisdiction.” Reed, 206 F.3d at 1058 (citing 28 U.S.C. § 1367(a); 28 U.S.C.

§ 1441(c)).

apply.

Here, because the Mayfields’ complaint does not include any federal claim for

relief, there is no basis for federal question jurisdiction, and no basis for severance-

and-remand pursuant to § 1441(c).

Importantly, Congress has not enacted an analogous severance-and-remand

provision for those situations—like this case—in which a defendant has removed a

case that invokes diversity jurisdiction and that includes a statutorily nonremovable

claim. To be clear, nothing in § 1441(c) prohibits severance-and-remand in those

situations (see Doc. 23 at 6–7), but nothing in the plain language allows it either.

III. On the plain language of 28 U.S.C. § 1441(a), this action was not

removable, because this court does not have original jurisdiction over the

case.

On the plain language of § 1441(a), this action was not removable, because

this court does not have original jurisdiction over the case. Under § 1441(a),

“[e]xcept as otherwise expressly provided by Act of Congress,” a defendant can

remove a case only where the district court “ha[s] original jurisdiction” over the

action. 28 U.S.C. § 1441(a). As the United States Supreme Court has explained,

“[o]nly state-court actions that originally could have been filed in federal court may

be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482

U.S. 286, 392 (1987).

Here, this case “originally could [not] have been filed in federal court.”

Caterpillar, 482 U.S. at 392. There is no basis for federal question jurisdiction, and

there is not complete diversity.

A. There is no federal claim in this case, and so no federal question

jurisdiction.

As explained above, there is no federal claim in this case, and so no basis for

federal question jurisdiction under 28 U.S.C. § 1331. See supra Part II. Instead,

Shelley’s removed this case based on diversity jurisdiction under 28 U.S.C. § 1332.

Doc. 1 at 3.

B. There is not complete diversity, and so no diversity jurisdiction.

There is not complete diversity, and so there is no diversity jurisdiction. As

also explained above, the Mayfields and Defendant Consolidated are all citizens of

Alabama (Doc. 1 at 4), so the court lacks diversity jurisdiction over the case. See

28 U.S.C. § 1332 (requiring complete diversity of citizenship for diversity

jurisdiction).5

On this motion, Shelley’s argument appears to be the following: (1) the

Mayfields are Alabama citizens, and Defendant Shelley’s is a Mississippi citizen

5 The court does not reach the question whether severance-and-remand would be

appropriate, where there is complete diversity of citizenship between all plaintiffs

and all defendants—that is, including any defendants against which the plaintiffs

have alleged a statutorily nonremovable claim. In that situation, removal would be

proper pursuant to 28 U.S.C. § 1441(a), but the court still would need to reconcile

that removal with the plain language of 28 U.S.C. § 1445(c). See, e.g., Formosa v.

Lowe’s Home Centers, Inc., 806 F. Supp. 2d 1181 (N.D. Ala. 2011) (complete

diversity of citizenship between all plaintiffs and all defendants).

(Doc. 1 at 4); and (2) if the court were to sever and remand the nonremovable

workers’ compensation claim against Defendant Consolidated; then (3) the court

could retain the Mayfields’ personal injury claims against Defendant Shelley’s; and

(4) the court—post-severance-and-remand—would have subject matter jurisdiction

based on the resulting complete diversity of citizenship between the Mayfields and

Shelley’s. Doc. 1 at 4–7; Doc. 23. But there does not appear to be any basis for

the court to engage in that hypothetical severance-and-remand; rather, the court lacks

subject matter jurisdiction right now, and there is no appropriate mechanism to

“create” it in these circumstances.

IV. There is no statutory basis for the court to sever the personal injury

claims from the nonremovable workers’ compensation claim, and to

retain jurisdiction over the personal injury claims.

There is no statutory basis for the court to sever the personal injury claims

against Shelley’s from the nonremovable workers’ compensation claim against

Consolidated, and to retain jurisdiction over those personal injury claims. As

explained above, the removal in this case was doubly problematic, because of the

nonremovable claim (see § 1445(c); Part I supra), and because this court does not

have federal question or diversity jurisdiction over the case (see § 1441(a); Part III

supra). And, § 1441(c) can’t help with the requested severance-and-remand,

because there is no federal claim for relief. See Part II supra.

The problem is that, in a case removed on diversity grounds, there is no

statutory mechanism to sever and remand the nonremovable claim(s), and to retain

jurisdiction over the remaining state law claims. In § 1441(c), Congress enacted a

specific exception to § 1445(c)’s statutory bar against removal where there is a

federal claim for relief. But (as noted above), Congress has not enacted any

comparable end-run around § 1445(c)’s statutory bar against removal for diversity

of citizenship. In a situation like this, severance-and-remand may be true to the

spirit of § 1441(c), but not its text. Cf. Reed, 206 F.3d at 1058.6

As a potential solution to that problem, Shelley’s points to cases like Lamar

v. Home Depot, 907 F. Supp. 2d 1311 (S.D. Ala. 2012). Doc. 1 at 5; Doc. 23 at 5–

6. Lamar and other district court cases do read the Eleventh Circuit’s Reed decision

as permitting the requested severance-and-remand, not just in cases removed based

on federal question jurisdiction (pursuant to 28 U.S.C. § 1441(c)), but also in cases

removed based on diversity jurisdiction.

However, Shelley’s does recognize that Lamar and similar cases are in the

minority. See Doc. 23 at 1–2 (conceding that “the majority of Alabama federal

courts have remanded in their entirety” those cases that a defendant has removed and

that include both a statutorily nonremovable workers’ compensation claim and

personal injury claims). Indeed, multiple courts have rejected the reasoning from

6 See, e.g., Steel, No. 2:16-CV-808-GMB, 2017 WL 253960, at *3 (refusing to “read

out of § 1441(c) the distinction between claims rooted in federal question and

diversity jurisdiction”).

Lamar and similar cases.7

In Lamar, the district court reasoned that the Eleventh Circuit in Reed relied

on § 1441(a) (general removal jurisdiction), and not § 1441(c) (severance-and-

remand for federal claims joined with nonremovable claims), in discussing removal

and jurisdiction over the federal ADA claim. Lamar, 907 F. Supp. 2d at 1314–15.

According to Lamar, “a nonworker’s compensation claim properly removed

under Section 1441(a) is not subject to remand under Section 1445(c),” even where

the defendant removed the case based on diversity. Id. at 1317.

While parts of Lamar’s reasoning and its close reading of Reed may be

compelling, that decision ultimately is not persuasive for at least three reasons.

First, there is no statutory basis for removal or severance-and-remand—at least in a

case like this. As explained above, there is no complete diversity here, so even

§ 1441(a) could not provide a basis for removal. (And, again, the court need not

reach the question whether removal and severance-and-remand would be appropriate

in a case where there is complete diversity of citizenship between all plaintiffs and

7 See, e.g., Mays v. General Motors LLC, No. 17-cv-66, 2017 WL 1398471, at *9

(N.D. Ala. Apr. 19, 2017); Steel v. Viscofan USA, Inc., No. 2:16-cv-808-GMB, 2017

WL 253960, at *3 (M.D. Ala. Jan. 19, 2017); Watson v. General Electric, Inc., No.

12-cv-2661, 2012 WL 5931884, at *7–8 (N.D. Ala. Nov. 26, 2012); Wingard v.

Guillot Textilmaschinen GMBH, No. 08-cv-342, 2008 WL 4368884, at *4 (M.D.

Ala. Sept. 23, 2008); Bryant v. Wausau Underwriters Ins. Co., No. 06-cv-1002, 2008

WL 1808325, at *2 (M.D. Ala. Apr. 21, 2008); Williams v. CNH Am., LLC, 542 F.

Supp. 2d 1261, 1267 (M.D. Ala. 2008).

all defendants. See, e.g., Formosa, 806 F. Supp. 2d 1181; supra note 5.)

Second (and as also explained above), the Eleventh Circuit in Reed did cite

§ 1441(a)—in addition to § 1441(c), later in the same paragraph—but the Eleventh

Circuit also clearly specified that the ADA claim in that case arose under federal

question jurisdiction pursuant to § 1331. Reed, 206 F.3d at 1058. That reasoning

brings Reed in-line with § 1441(c), and arguably limits Reed’s application to

permitting removal and severance-and-remand in only those cases with a federal

claim for relief.

Third (and more fundamentally), it is hornbook law that a defendant cannot

remove a case based on “minimal” diversity between one plaintiff and one

defendant.8 But that is precisely what Lamar would allow in a case like this.

According to Lamar, “Under Section 1441(a), the presence of a single claim

as to which the federal courts have original jurisdiction” makes the case “removable

in its entirety under that statute,” and “the presence of additional claims as to which

the federal courts lack original jurisdiction is irrelevant.” Lamar, 907 F. Supp. 2d

at 1317 (emphasis added). So, here (according to Lamar), removal would be proper

8 See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)

(“Diversity jurisdiction requires complete diversity; every plaintiff must be diverse

from every defendant.”). Cf. Scimone, 720 F.3d at 885 (stating that the primary

purpose behind the Class Action Fairness Act was to change the removal

requirements for qualifying class action cases to “the more forgiving requirements

of minimal diversity”).

under § 1441(a) because there is minimal diversity on a “single claim” or more for

personal injury (id.), as between the Mayfields (Alabama citizens) and Defendant

Shelley’s (Mississippi citizen), even though there is not diversity between the

Mayfields and Defendant Consolidated (another Alabama citizen). But, in

seemingly every other circumstance, that is not the law under either § 1441(a) or

§ 1332; minimal diversity is not enough for removal or for original jurisdiction. See

Triggs, 154 F.3d at 1287. And it hardly seems to help that, again in a case like this,

the “additional claim[] as to which the federal court[] lack[s] original jurisdiction” is

a state law workers’ compensation claim that itself is statutorily nonremovable. See

Lamar, 907 F. Supp. 2d at 1317.

For sake of clarity, cases like Lamar did provide much more than a good faith

basis for Shelley’s to remove this case and to argue for severance-and-remand. See

Doc. 1 at 4–7; Doc. 23 at 5–6 (citing Lamar, 907 F. Supp. 2d at 1314–15). But the

court must resolve this motion based on the controlling statutory text (to the extent

that it applies), and in light of the Eleventh Circuit’s instructions that the “removal

statutes are construed narrowly,” with “uncertainties” about removal “resolved in

favor of remand.” Burns, 31 F.3d at 1095.

Furthermore, given the Eleventh Circuit’s admonitions, the court declines to

exercise any discretion that it may have under Federal Rule of Civil Procedure 21 to

“create” jurisdiction here. Rule 21 provides that “[m]isjoinder of parties is not a

ground for dismissing an action,” and that a court can sever “any claim against a

party” (Fed. R. Civ. P. 21), including for the purpose of retaining jurisdiction

(Ingram v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998)). Severance under

Rule 21 is left to the district court’s discretion. See, e.g., Estate of Amergi ex rel.

Amergi v. Palestinian Authority, 611 F.3d 1350, 1356 (11th Cir. 2010) (stating that

a district court’s decision on severance is reviewed for abuse of discretion).

As the language suggests, Rule 21 severance generally is appropriate where

there has been misjoinder in violation of the joinder provisions in Federal Rule of

Civil Procedure 20. See, e.g., Steel, 2017 WL 253960, at *4. There is no issue of

misjoinder in this case.

Nevertheless, “in certain limited circumstances Rule 21 severance may also

be justified by ‘considerations of judicial economy, case management, prejudice to

parties, and fundamental fairness’—even where Rule 20 allows joinder.” Id.

(quoting Barber v. America’s Wholesale Lender, 289 F.R.D. 364, 368 (M.D. Fla.

2013)).

But the “fundamental problem” with Rule 21 in this situation is that the court

“essentially” would “employ the procedural device of severance not to ‘retain’

jurisdiction,” but to “manufacture federal jurisdiction that did not exist at the

moment” when the case was removed. Brown v. Endo Pharms., Inc., 38 F. Supp.

3d 1312, 1326–27 (S.D. Ala. 2014). “Federal courts have frowned on using the

Rule 21 severance vehicle to conjure removal jurisdiction that would otherwise be

absent.” Id. (citation omitted).9

Plus, practically speaking, consideration of judicial economy appears neutral

in this case. The case is in only the early stage of discovery. The record appears

to show that severance-and-remand would not detract from judicial economy, but

that it wouldn’t necessarily promote it either. See, e.g., Doc. 23 at 12 (overlapping

discovery between the personal injury claims and the workers’ compensation claim

would “likely be limited to a handful of depositions”). Also, Shelley’s appears to

recognize that whether severance-and-remand would promote judicial economy is

different from the question whether the court can retain subject matter jurisdiction

over certain claims. See, e.g., Doc. 23 at 14 (“a claim that has been properly

removed and is not subject to remand under governing statutes cannot be remanded

on the grounds that judicial economy would be served by remand”).

In the end, the court will not exercise any arguable discretion that it may have

9 In this case, as in Brown, “when the Notice of Removal was filed, there was neither

federal question jurisdiction nor diversity jurisdiction over this action. Of course,

well-settled law provides that diversity jurisdiction is examined at the time of

removal. . . . If there was not complete diversity at the time of removal, and if there

was no fraudulent joinder or fraudulent misjoinder of nondiverse parties, then the

lack of complete diversity at the moment of removal deprives this Court of subject

matter jurisdiction and necessitates remand to state court. The Court cannot (and,

even if it had discretion to do so, would not) retroactively manufacture federal

subject matter jurisdiction in this case by slicing off the non-diverse portions of the

case, returning those to state court, and keeping the rest.” Brown, 38 F. Supp. 3d at

1326–27 (citations and quotation marks omitted).

under Rule 21 to order severance-and-remand because the Eleventh Circuit has made

clear that “[f]ederal courts are courts of limited jurisdiction” (Burns, 31 F.3d at

1095), and because the court still has the practical concern of jurisdictional

uncertainty hanging over this case (see Doc. 20 at 4). A hypothetical appeal on the

personal injury claims could result in a “do-over” for lack of jurisdiction, which no

one wants.

V. The Mayfields are the masters of their complaint, and Shelley’s and the

Mayfields cannot consent to federal subject matter jurisdiction, where

there is none.

As noted above, the plaintiff is “the master of the complaint,” and is “free to

avoid federal jurisdiction” by “structuring his case to fall short of a requirement of

federal jurisdiction.” Scimone, 720 F.3d at 882. In this case, the Mayfields filed

their complaint in state court, joining a nonremovable workers’ compensation claim

with state law personal injury claims, but with no federal claim for relief. There is

no issue of “fraudulent” joinder. Id.

Had the Mayfields filed two lawsuits—a workers’ compensation case against

Consolidated, and a personal injury case against Shelley’s—then the workers’

compensation case still would be in state court, and Shelley’s properly could have

removed the personal injury case pursuant to § 1441(a) and § 1332. Likewise, if the

Mayfields had voluntarily dismissed their workers’ compensation claim (and refiled

in state court), then the jurisdictional analysis and result would be different pursuant

to § 1441(a) and § 1332, and the court could have diversity jurisdiction over the

remaining personal injury claims.10 But that is not what the Mayfields have done,

and they are the masters of their complaint.

That said, the record appears to show that both the Mayfields and Defendant

Shelley’s would prefer to remain in federal court on the personal injury claims.

Doc. 9 at 3; Doc. 20 at 1, 3. All things being equal, the court too would prefer that

the personal injury claims remain here in federal court.

While Shelley’s argues that the Mayfields have waived any right to remand

the personal injury claims (Doc. 23 at 11–12; see Formosa, 806 F. Supp. 2d at

1185),11 any such waiver still cannot create subject matter jurisdiction. The court

has an obligation to address subject matter jurisdiction “whenever it may be lacking,”

and it is well settled that the parties cannot consent to federal subject matter

jurisdiction or waive the issue, where there is no jurisdiction. University of S.

Alabama, 168 F.3d at 410.

10 If those hypothetical results seem inconsistent with the outcome here, it is only

because the plain language of the statutes requires as much. For better or worse,

Congress has provided for severance-and-remand where the removed case includes

a federal claim for relief (§ 1441(c)), but not where the case was removed based on

diversity (no analogous statute). In the absence of clear guidance from the Eleventh

Circuit, the court will not stretch to bridge that jurisdictional gap and risk a “do-

over.”

11 The court again notes that in Formosa, unlike this case, there was complete

diversity of citizenship between all plaintiffs and all defendants. See 806 F. Supp.

2d 1181.

Moreover, while the court agrees with Shelley’s that an out-of-state defendant

generally has the right to litigate in federal court (subject to the requirements of

§ 1332), and that a court generally cannot decline to exercise jurisdiction (Doc. 23

at 7–10), those arguments are beside the point. The point is that neither § 1332,

§ 1441, nor any other statute provides a basis for removal and severance-and-remand

here, and that consequently the court does not have any subject matter jurisdiction to

exercise over this case in the first place.

Accordingly, the court has no choice but to remand the entire case for lack of

subject matter jurisdiction. See 28 U.S.C. § 1447(c).

CONCLUSION

For the reasons stated above, the court GRANTS IN PART and DENIES IN

PART Defendant Consolidated’s motion to sever and remand (Doc. 9). The court

GRANTS Defendant Consolidated’s motion to remand, but DENIES Defendant

Consolidated’s motion to sever.

As a result, the court DIRECTS the Clerk of Court to REMAND this case to

the Circuit Court for Etowah County, Alabama. Separately, the court will enter a

remand order.

DONE and ORDERED this January 28, 2022.

AG A. DANELLA

UNITED STATES MAGISTRATE JUDGE

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