Petition for Writ of Certiorari — Brierly v. Alusuisse Flexible Packaging, Inc.

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Supreme Court, U.&

mie Be

ae 99 683 ocr 21 1999

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JEFFREY D. BRIERLY, Administrator

of the Estate of Paul Brierly, Deceased,

Petitioner,

ALUSUISSE FLEXIBLE PACKAGING,

INC., DAVID ELLISON,

Respondents.

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES CouRT OF APPEALS

For THE SixtH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FRED E. FISCHER

Counsel of Record

MIKE KELLY

FISCHER AND GREENE

FOURTH FLOOR

713 West MAIN STREET

LOUISVILLE, KY 40202

(502) 589-6380

Attorneys for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

340%

QUESTIONS PRESENTED

I. WHETHER ACCESS TO FEDERAL COURTS

SHOULD BE EXPANDED BY ALLOWING THE THIRTY

DAY PERIOD TO REMOVE AN ACTION FROM STATE

COURT TO BEGIN ANEW WITH SERVICE UPON EACH

DEFENDANT.

IT. WHETHER THE ONE (1) YEAR LIMITATION ON

REMOVAL OF DIVERSITY CASES SET FORTH IN 28

USC § 1446(b) APPLIES TO ALL CIVIL ACTIONS, OR

ONLY TO THOSE THAT ARE NOT INITIALLY

REMOVABLE.

Ili. WHETHER THE DISTRICT COURT HAS

JURISDICTION TO CONSIDER THE REMOVAL OF AN

ACTION FROM STATE COURT ON THE SAME BASIS

(DIVERSITY) THAT THE DISTRICT COURT HAD

TWICE PREVIOUSLY REMANDED THE ACTION TO

STATE COURT.

IV. WHETHER A DEFENDANT THAT HAS FAILED

ON TWO EARLIER ATTEMPTS TO REMOVE AN

ACTION TO FEDERAL COURT CAN THEREAFTER

CONSENT TO A REMOVAL PETITION FILED BY

ANOTHER DEFENDANT NAMED IN THE ORIGINAL

COMPLAINT.

¥: WHETHER SUMMARY JUDGMENT IS

APPROPRIATE TO PREVENT A JURY FROM

INFERRING DELIBERATE INTENT IN A CIVIL CASE

UNDER FACTS THAT WOULD SUPPORT A CRIMINAL

CONVICTION.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings are as follows:

Jeffrey Brierly, Administrator of the Estate of Paul Brierly,

Deceased, Petitioner; and

Lawson Mardon Flexible, Inc., f/k/a Alusuisse Flexible

Packaging, Inc., Respondent; and

David Ellison, Respondent.

The Petitioner is not a corporation.

TABLE OF CONTENTS

Page

er yi l, i

Parties to the a, SR Sere es: li

ee els ic so, pe. ili

i Vii

NE et se ey l

Statement of Jurisdiction ..................... l

Statutory Provisions Involved.................. 2

I a 8

Reasons for Granting Certiorari .............2« 12

l. The Decision of the Sixth Circuit Court

of Appeals, in creating a pure “last-served

Defendant” rule, is in conflict with every other

Court of Appeals to consider application of the

30 day removal period provided by 28 USC §

I oe eee Ge | 12

2. The Court should grant certiorari to

address the question of whether the 1988

Amendment to 28 USC § 1446(b), Creating a

one-year limitation on diversity removal, and

this Court’s decision in Caterpillar, Inc. y

Lewis, 519 U.S. 61, 117 S. Ct. 467 (1996)

apply to all civil actions, or only to those not

initially removable .................... 18

a. The Court should grant certiorari to

prevent further erosion of its ruling in

Shamrock Oil & Gas v. Sheets, supra, that the

removal statute “...must be strictly construed

kk es hue eee dks as 21

4. The Court should grant certiorari to

address the application of 28 USC § 1447 (d)

to removal petitions filed by later-served |

defendants named in the original Complaint,

asserting the same basis for jurisdiction on

which an earlier-served defendant’s removal

petition was remanded by the District Court ... 22

» 3 The Court should grant certiorari,

because the lower Courts are imposing a

burden of proof on summary judgment in a

civil action that exceeds the burden of proof

necessary to support a criminal conviction .... 25

Cee Te Cee ee ee ee ere 27

Appendix :

Appendix A

Amended Judgment of United States Court of

Appeals for the Sixth Circuit, entered June 10,

PO ia ek a ee eS la

Appendix B

Amended Opinion of the United States Court

of Appeals for the Sixth Circuit, entered June

i; Se i ek x Se ee 3a

Appendix C

Judgment of the United States Court of

Appeals for the Sixth Circuit, entered March

Sy SE 6 vo. Cksken ke eee 23a

Appendix D

Opinion of the United States Court of Appeals

for the Sixth Circuit, entered

WO AE; SN as ee fa 25a

Appendix E

Judgment of the United States District Court,

Eastern District of Kentucky at Frankfort,

entered September 4,1997............. 44a

Appendix F

Memorandum Opinion and Order of the

United States District Court, Eastern District

of Kentucky at Frankfort, entered September

TOF 8s vale oe ees ee 46a

Appendix G

Memorandum Opinion and Order of. the

United States District Court, Eastern District

of Kentucky at Frankfort, entered January 30,

WE 854445 bb age elee ee 6la

Appendix H

Order of United States District Court, Eastern

District of Kentucky at Frankfort, entered

Ce TE, SR ee 72a

Appendix I

Order of United States District Court, Eastern

District of Kentucky at Frankfort, entered July

RY, Pee tc eaccés wt Reuse eevee 79a

Appendix J

Memorandum Opinion and Order of the

United States District Court, Eastern District

of Kentucky at Frankfort, entered March 30,

PPUO oka eetcive nee 82a

Appendix K

Order of the United States Court of Appeals

for the Sixth Circuit entered

PU Te ee eee 88a

Appendix L

28 USC § 1446 and § 1447 ............. 90a

Appendix M

CR 3.01, Kentucky Rules of Civil Procedure . . 95a

Appendix N

RO epee yee er 96a

TABLE OF AUTHORITIES

Page

Cases

Brown v. Demco, Inc.,

792 F.2d 478, 481-82 (5" Cir. 1986) ........ 12

Cantrell v. Great Republic Ins. Co..,

873 F.2d 1249 (9" Cir. 1989).......... 13,17

Carson v. Dunham,

121 US 421, 425-426 (1886) ............ .16

Caterpillar, Inc. v. Lewis,

519 U.S. 61, 117 S. Ct. 467 (1996) .... 18.19.20

Chandler v. O’Bryan,

445 F. 2d 1045 (10" Cir., 1971) ........... 23

Egle Nursing Home, Inc. v. Erie Ins. Group,

981 F. Supp. 932, 935 (D. Md. 1997) ....... 14

Federal Deposit Ins. Corp. v. Santiago Plaza,

598 F. 2d 634 (1* Cir. 1979) ............. 24

Freeman v. Bechtel,

936 F. Supp. 320 (M.D. N.C. 1996) ..... 21,22

Getty Oil Corp. v. Insurance Co. of North America,

841 F.2d 1254, 1263 (5" Cir. 1988) ..... 12,14

Green Point Savings Bank v. Hidalgo,

910 F. Supp. 89, (E.D. N.Y. 1995)......... 21

Vii

Higgins v. Kentucky Fried Chicken,

953 F. Supp. 266, 270 (W.D. Wis. 1997) .. 14-16

La Providencia Development Corporation,

S06 F 26251, goeth Ce. 9G)... ww Be

Louisville and Jefferson County v. Travelers Ins.,

oa ee Or Ce. ND nn hk eres 25

McKinney v. Board of Trustees of Maryland Com. Col.,

955 F.2d 924 (4" Cir. 1992) ........ 13-15,17

McShares, Inc. v. Barry,

979 F. Supp. 1338, 1344 (D. Kan. 1997) ..... 14

Missouri Pac. Ry. Co. v. Fitzgerald;

160 US 556, 583, 16 S. Ct. 389, 40

eS RR are er ware bates a 24

New York Life Ins. Co. v. Deshotel,

142 F. 34 873 CO" Cir. 1998) 2... ss 20,21

Quick Erectors, Inc. v. Seattle Bronze Corp.,

524 F. Supp. 351, 354 (E.D. Mo. 1981) ..... 14

Reddick v. Commonwealth, 17 Ky.

Law. Rep. 1020, 33 SW 416 (1895) ........ 27

Ritchey v. Upjohn Drug Co.,

139 F. 3d 1313 (9" Cir.), cert. denied

SOP es ee ee ee is Sb ceca ee 20,21

Scialo v. Scala Packing Co., Inc.,

821 F. Supp. 1276, 1278 (N.D. Ill. 1993)..... 14

Viil

Shamrock Oil & Gas v. Sheets,

313 US 100, 61 S. Ct. 868,

SS L. Be. 1214 (1061) .......... 15,21,22,25

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 354, 96 S. Ct.

584, 46 L. Ed. 2d 542 (1976)............. 17

Weimer v. City of Johnstown, N.Y.,

931 F. Supp. 985, 991 ft. 6

ee i a elie 14

Wilson v. Republic Iron & Steel Co..,

257 U.S. 92, 97, 42 S. Ct. 35, 37,

re ee a a oe kee 16

Yellow Cab Co. of Pittsburgh v. Gasper,

994 F. Supp. 344, 347 (W.D. Pa. 1998) ..... 14

Zogbi v. Federated Dep’t Store,

767 F. Supp. 1037 (D.D. Cal. 1991) ........ 22

Statutes

i AE Nh ae ve 0 oe ee 8

ee ee nS ek Ve a AO 198

ee ee acs Oe a OE passim

a a kee el a ea passim

io gk eee ee ee ee ree eee Le 25

Rule Cited

Kentucky Rules of Civil Procedure,

+ SS ee er ee re eee are 20

Other Authority Cited

Moore’s Federal Practice § 0.168 [3.5-5],

ea’ fC re eae 13

OPINIONS BELOW

The Amended Opinion of the United States Court of

Appeals for the Sixth Circuit is set forth in the Appendix, p.

3a, and is reported at 184 F. 3d 527 (1999). The original

Opinion of the Sixth Circuit is set forth in the Appendix, p.

25a, and is reported at 170 F. 3d 583 (1999). The

Memorandum Opinion and Order, and Judgment of the

United States District Court for the Eastern District of

Kentucky at Frankfort, entered September 4, 1997, is set forth

in the Appendix, p. 46a, and is not reported. The

Memorandum Opinion and Order of the District Court entered

January 30, 1996, is set forth in the Appendix at p. 61a, and

is reported at 913 F. Supp. 517 (E.D. Ky. 1996). The

Memorandum Opinion and Order of the District Court entered

October 18, 1995, is set forth in the Appendix, p. 72a, and is

not reported. The Memorandum Opinion and Order of the

District Court entered July 17, 1995 is set forth in the

Appendix, p. 79a, and is not reported. The Memorandum

Opinion and Order of the District Court entered March 30,

1995, is set forth in the Appendix, p. 82a, and is not reported.

STATEMENT OF THE BASIS OF JURISDICTION

OF THE SUPREME COURT

The United States Court of Appeals for the Sixth

Circuit entered an Amended Judgment on June 10, 1999, and

denied a timely petition for rehearing by Order entered July

30, 1999.

The jurisdiction of this Court is invoked under 28 USC

§ 1254.

STATUTORY PROVISIONS INVOLVED

IN THIS CASE

28 USC § 1446 & 1447

JURISDICTION AND VENUE

§ 1446. Procedure for removal

(a) A defendant or defendants desiring to remove any civil

action or criminal prosecution from a State court shall file in

the district court of the United States for the district and

division within which such action is pending a notice of

removal signed pursuant to Rule 11 of the Federal Rules of

Civil Procedure and containing a short and plain statement of

the grounds for removal, together with a copy of all process,

pleadings, and orders served upon such defendant or

defendants in such action.

(b) The notice of removal of a civil action or proceeding shall

be filed within thirty days after the receipt of the defendant,

through service or otherwise, of a copy of the initial pleading

setting forth the claim for relief upon which such action or

proceeding is based, or within thirty days after the service of

summons upon the defendant if such initial pleading has then

been filed in court and is not required to be served on the

defendant, which ever period is shorter.

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within thirty days

after receipt by the defendant, through service or otherwise,

of a copy of an amended pleading, motion, order or other

paper from which it may first be ascertained that the case is

one which is or has become removable, except that a case may

I RN VM A Sita 8 ches eal

not be removed on the basis of jurisdiction conferred by

section 1332 of this title more than 1 year after

commencement of the action.

(c)(1) A petition for removal of a criminal prosecution shall

be filed not later than thirty days after the arraignment in the

State court, or at any time before trial, whichever is earlier,

except that for good cause shown the United States district

court may enter an order granting the petitioner leave to file

the petition at a later time.

(2) A petition for removal of a criminal prosecution shall

include all grounds for such removal. A failure to state

grounds which exist at the time of the filing of the petition

Shall constitute a waiver of such grounds, and a second

petition may be filed only on grounds not existing at the time

of the original petition. For good cause shown, the United

States district court may grant relief from the limitations of

this paragraph.

(3) The filing of a petition for removal of a criminal

prosecution shall not prevent the State court in which such

prosecution is pending from proceeding further, except that a

judgment of conviction shall not be entered unless the petition

is first denied.

(4) The United States district court to which such petition

is directed shall examine the petition promptly. If it Clearly

appears on the face of the petition and any exhibits annexed

thereto that the petition for removal should not be granted, the

court shall make an order for its Summary dismissal.

(5) If the United States district court does not order the

summary dismissal of such petition, it shall order an

evidentiary hearing to be held promptly and after such hearing

shall make such disposition of the petition as justice shall

require. If the United States district court determines that

such petition shall be granted, it shall so notify the State court

in which prosecution is pending, which shall proceed no

further.

(d) Promptly after the filing of such petition for the removal

of a civil action and bond the defendant or defendants shall

give written notice thereof to all adverse parties and shall file

a copy of the petition with the clerk of such State court, which

shall effect the removal and the State court shall proceed no

further unless and until the case is remanded.

(e) If the defendant or defendants are in actual custody on

process issued by the State court, the district court shall issue

its writ of habeas corpus, and the marshal shall thereupon take

such defendant or defendants into his custody and deliver a

copy of the writ to the clerk of such State court.

(June 25, 1948, ch 646, § 1, 62 Stat. 939; May 24, 1949, ch

139, § 83, 63 Stat. 101; Sept. 29, 1965, P.L. 89-215, 79

Stat. 887; July 30, 1977, P.L. 95-78, § 3, 91 Stat. 321; Nov.

19, 1988, P.L. 100-702, Title X, § 1016(b), 102 Stat. 4669.)

§ 1447. Procedure after removal generally

(a) In any case removed from a State court, the district court

may issue all necessary orders and process to bring before it

all proper parties whether served by process issued by the

State court or otherwise.

(b) It may require the petitioner to file with its clerk copies of

all records and proceedings in such State court or may cause

the same to be brought before it by writ of certiorari issued to

such State court.

removal procedure must be made within 30 days after the

filing of the notice of removal under section 1446(a) {28 USC

§ 1446(a)]. If at any time before final judgment it appears

that the district court lacks subject matter jurisdiction, the case

Shall be remanded. An order remanding the case may require

payment of just costs and any actual expenses, including

attorney fees, incurred as a result of the removal. A certified

copy of the order of remand shall be mailed by the clerk to

the clerk of the State court. The State court may thereupon

proceed with such case.

(d) An order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise,

except that an order remanding a case to the State court from

which it was removed pursuant to section 1443 of this title

Shall be reviewable by appeal or otherwise.

(e) If after removal the plaintiff seeks to join additional

defendants whose joinder would destroy subject matter

jurisdiction, the court may deny joinder, or permit joinder and

remand the action to the State court.

(June 25, 1948, ch 646, § 1, 62 Stat. 939; May 24, 1949, ch

139, § 84, 63 Stat. 102: July 2, 1964, P. L. 88-352, Title IX,

§ 901, 78 Stat. 266: Nov. 19, 1988. P.L. 100-702, Title X,

§ 1016°. 102 Stat. 4670.)

KENTUCKY RULES OF CIVIL PROCEDURE

II. COMMENCEMENT OF ACTION; SERVICE

OF PROCESS, PLEADINGS, MOTIONS

AND ORDERS

CR 3. COMMENCEMENT OF ACTION FEES

AND COSTS

CR 3.01 Commencement of Action

A civil action is commenced by the filing of a

complaint with the court and the issuance of a summons or

warning order thereon in good faith.

Source: FRCP 3; CC 39; KRS 413.250.

KRS Chapter 342

LABOR AND HUMAN RIGHTS

342.610. Liability for compensation. - (1) Every employer

subject to this chapter shall be liable for compensation for

injury, occupational disease, or death without regard to fault

as a cause of the injury, occupational disease, or death.

(2) A contractor who subcontracts all or any part of a

contract and his carrier shall be liable for the payment of

compensation to the employees of the subcontractor unless the

subcontractor primarily liable for the payment of such

compensation has secured the payment of compensation as

provided for in this chapter. Any contractor or his carrier

who shall become liable for such compensation may recover

the amount of such compensation paid and necessary expenses

from the subcontractor primarily liable therefore. A person

who contracts with another (a) to have work performed

consisting of the removal, excavation or drilling of the soil,

rock or mineral, or the cutting or removal of timber from

land, or (b) to have work performed of a kind which is a

regular or recurrent part of the work of the trade, business,

—————

occupation or profession of such person, shall for the

purposes of this section be deemed a contractor, and such

other person a subcontractor. This subsection shail not apply

to the owner or lessee of land principally used for agriculture.

(3) Liability for compensation shall not apply where

injury, occupational disease, or death to the employee was

proximately caused primarily by his intoxication or by his

willful intention to injure or kill himself or another.

(4) If injury or death results to an employee through

the deliberate intention of his employer to produce such injury

or death, the employee or his dependent as herein defined

Shall receive the amount provided in this chapter in a lump

sum to be used, if desired, to prosecute the employer. The

dependents may bring suit against the employer for any

amount they desire. If injury or death results to an employee

through the deliberate intention of his employer to produce

such injury or death, the employee or his dependents may take

under this chapter, or in lieu thereof, have a cause of action

at law against the employer as if this chapter had not been

passed, for such damage so sustained by the employee, his

dependents or personal representatives as is recoverable at

law. If a suit is brought under this subsection, all right to

compensation under this chapter shall thereby be waived as to

all persons. If a claim is made for the payment of

compensation or any other benefit provided by this chapter,

all rights to sue the employer for damages on account of such

injury or death shall be waived as to all persons. (Enact. Acts

1972, ch. 78, § 1, effective January 1, 1973.)

STATEMENT OF THE CASE

This is a wrongful death action filed by the Estate of

Paul Brierly, (“Brierly”) a 19 year old co-op student who was

killed in a fire and resulting explosion at the Alusuisse

Flexible Packaging, Inc. (“Alusuisse”) plant in Shelbyville,

Kentucky on August 30, 1993. The case was removed to

federal court on three occasions, twice by Alusuisse (who also

filed a motion to reconsider the first Order of remand) and

once by Ellison. From June 8, 1994 until January 30, 1996,

the parties litigated the forum in which the case would be

heard. Jurisdiction in the United States District Court for the

Eastern District of Kentucky at Frankfort, as explained below,

is purportedly based upon diversity of citizenship as provided

in 28 USC § 1332.

At the time of his death, Mr. Brierly was attending

Shelby County Vocational School and was working as a co-op

student with Alusuisse, under the supervision of David

Ellison, among others. After he was killed in the explosion,

his estate elected to forego its statutory right to Workers’

Compensation benefits, and instead filed the within tort action

in the Shelby County, Kentucky Circuit Court. Summons

were issued that same day, May 12, 1994, for all Defendants,

including David Ellison.

On June 8, 1994, Alusuisse, on the unsupported

allegation that Ellison was not a citizen of Kentucky, removed

the action to the United States District Court for the Western

District of Kentucky at Louisville. Ellison, who had not yet

been served, did not join in or file a consent to Alusuisse’s

removal petition. The case was then transferred to the

District Court for the Eastern District of Kentucky at

Frankfort. The action was remanded to state court on

Brierly's motion, after the Court concluded that Alusuisse had

“utterly failed to introduce any evidence whatsoever” to

establish that Ellison had changed his domicile from the state

of Kentucky. The action was remanded to the Shelby Circuit

Court on March 30, 1995.

Alusuisse then pursued a two-pronged attack to keep

the case out of state court. On April 7, 1995, it filed a motion

to reconsider the Order remanding the case to Shelby Circuit

Court, and it filed a second notice of removal. The motion to

reconsider was denied due to a lack of jurisdiction following

remand, 28 USC § 1447(d), by Order entered July 17, 1995.

The second Notice of Removal was based upon an

alleged “subsequent event” making the action removable.

The “event” was an Order by the same District Court judge

in another case arising from the same explosion, in which the

Court concluded that Ellison had changed his domicile from

Kentucky to Wisconsin on or before May 9, 1994, three (3)

days prior to Brierly filing his action in Shelby Circuit Court.

Although Alusuisse and Ellison were co-defendants in the

other case, Ellison had not been served in the Brierly case,

and did not join in or consent to Alusuisse’s second Notice of

Removal.

The second removal was remanded on Brierly’s

motion, with the Court noting:

“A party cannot allow its Opportunity to

invoke federal jurisdiction to pass where it was

in possession of facts which revealed the

diversity of the parties. To allow such a

method of removal would be to open an

avenue allowing a defendant to keep litigation

at bay, possibly for years.”

The Order remanding the case once again to the Shelby

Circuit Court was entered October 18, 1995, more than one

(1) year after the action was commenced.

Ellison did not consent to either of Alusuisse’s notices

of removal, or the motion to reconsider, because he had not

been served at the time Alusuisse filed those papers. Brierly

had issued a summons for Ellison on May 12, 1994, to be

served by the Shelby County Sheriff at his place of

employment. In August of 1994, Alusuisse informed Brierly

of a “business” address for Ellison in the state of Wisconsin.

However, the District Court ordered a stay of proceedings,

and service was not therefore effected upon Ellison.

Following the October 18, 1995 Order remanding the

case to state court, on October 25, 1995, Brierly filed a

motion for leave to file an Amended Complaint in Shelby

Circuit Court, which was granted by the Court on November

8, 1995. Alusuisse filed in the state court a Motion to Stay

Proceedings, citing a pending criminal action arising from the

same explosion. However, service had now been effected

upon Ellison, and on November 30, 1995, eighteen (18)

months after commencement of the action, he filed a Notice

of Removal on the basis of diversity. Alusuisse filed a notice

of its consent to Ellison’s removal on the same day.

Brierly then filed his third Motion to Remand this case

to state court, citing several reasons that he believed removal

was inappropriate. Specifically, he claimed (1) that 28 USC

§ 1447(d) divested the district court of jurisdiction to consider

removal on the same basis the case had previously been

remanded; (2) that 28 USC § 1446(b) prohibits removal of a

case on the basis of diversity of citizenship more than one

year after commencement of the action; (3) that published

opinions within the Eastern District of Kentucky had adopted

the “first-served” defendant rule, i.e. that the 30 day

limitation of 28 USC § 1446(b) begins to run with service on

the first defendant; and (4) that Alusuisse, having failed in

two attempts to remove the action, was prevented by the “rule

of unanimity” from tendering a valid consent to Ellison’s

Notice of Removal.

On January 30, 1996, the District Court denied

Brierly’s motion to remand. Thereafter Alusuisse and Ellison

filed motions for summary judgment, contending that proof of

a specific, subjective intent to cause injury or death was

necessary to submit the case to a jury. Brierly argued that

intent could be inferred by a jury because death was a natural

and foreseeable consequence of welding in an area laden with

combustible solvents. Ellison had been warned that

commencement of the welding operation was unsafe, but he

nevertheless gave the go-ahead to proceed. Moreover,

conducting welding operations under the conditions present

was a violation of several federal safety regulations.

If a jury would be allowed to infer the intent necessary

to convict a person in a criminal case under such facts, and

deprive him of his liberty, Brierly argued that it should be

allowed to do so in a civil case to overcome the exclusive

remedy provisions of a Workers’ Compensation Act. The

District Court disagreed, and on September 4, 1997, entered

summary judgment in favor of Alusuisse and Ellison.

Petitioner timely filed a Notice of Appeal to the Sixth

Circuit Court of Appeals, which rendered an Opinion and

Judgment affirming the District Court on March 12, 1999.

Brierly then timely filed a Petition for Rehearing and

Suggestion for En Banc Consideration. On June 10, 1999,

the three judge panel rendered an Amended Judgment and

Amended Opinion. Brierly then filed a Memorandum of Law

Supplementing his Original Petition for Rehearing and

Suggestion for En Banc Consideration. By Order entered July

30, 1999, the petition was denied. Brierly has now filed the

within Petition for Writ of Certiorari.

REASONS FOR GRANTING CERTIORARI

1. The Decision of the Sixth Circuit Court

of Appeals, in creating a pure “last-served

Defendant” rule, is in conflict with every

other Court of Appeals to consider

application of the 30 day removal period

provided by 28 USC § 1446(b).

Four Circuit Court’s of Appeals have addressed the

question of whether the 30 day period after service of process

within which to remove an action to federal court on the basis

of diversity of citizenship begins to run with service on the

first-served defendant, or whether a new 30 day clock begins

to run with service upon each defendant. Prior to the decision

of the Sixth Circuit in this case, the Circuit Courts were

unanimous that the 30 day period begins to run with service

on the first-served defendant.

The Fifth Circuit, in Brown v. Demco, Inc. , 792 F.2d

478, 481-82 (5" Cir. 1986) adopted a bright-line rule that the

failure of the first-served defendant to file a notice of removal

within 30 days prevents all subsequently served defendants

from later removing the action to federal court, unless there

is evidence that the plaintiff intentionally delayed naming

other defendants in a bad-faith attempt to prevent removal. It

thereafter added the requirement in Getty Oil Corp. v.

Insurance Co. of North America, 841 F.2d 1254, 1263 (5"

Cir. 1988) that all served defendants “must join in the petition

no later than thirty days from the day on which the first

defendant was served.” (emphasis added).

The Ninth Circuit, in Cantrell v. Great Republic Ins.

Co., 873 F.2d 1249 (9" Cir. 1989), citing the rule of

unanimity, held that if the first-served defendant has failed to

effect timely removal within 30 days of service upon it, such

defendant cannot thereafter consent to removal attempted by

a later-served defendant. See also 1A James W. Moore, et

al., Moore’s Federal Practice § 0.168 [3.5-5], at 586-87 (2d

ed. 1992).

The Fourth Circuit, in McKinney v. Board of Trustees

of Maryland Com. Col., 955 F. 2d 924 (4" Cir. 1992) was

confronted with the question of “whether B has thirty days

from the time he himself is served to join the removal

petition, or must join within 30 days of A’s service” (/d at p.

926 emphasis added), when B has been served within thirty

days of service upen A. The Court addressed the “first-

served, last-served” question presented herein as follows:

“While the first served defendant clearly must

petition for removal within 30 days...” /d.,

p. 926 emphasis added.

Again, at footnote 3 on p. 926 of the Opinion, the

Fourth Circuit states:

“In a different situation, where B is served

more than 30 days after A is served, two

timing issues can arise, and the law is settled

as to each. First, if A petitions for removal

within 30 days, the case may be removed, and

B can either join in the petition or move for

remand. See 28 USC § 1448. Second, if A

—

does not petition for removal within 30 days,

the case may not be removed. See, e.g.

Quick Erectors, Inc. v. Seattle Bronze Corp.,

524 F. Supp. 351, 354 (E.D. Mo. 1981).”

Emphasis added.

The Court ultimately concluded, at p. 928:

“...we hold that under 28 USC § 1446(b),

individual defendants have thirty days from the

time they are served with process or with a

complaint to join in an otherwise valid removal

petition.” (Emphasis added).

The Fourth Circuit in McKinney, supra, was highly

critical of the Fifth Circuit decision in Getty Oil, supra, as

being “unfair” to later-served defendants. Nevertheless, it

was Clear that the right of the later-served defendant was to

join in an otherwise valid removal petition. Virtually every

court to discuss McKinney cites the case for holding that the

later-served defendant can join in a pending removal petition,

but note that if there is no such petition pending, the case

may not be removed. Egle Nursing Home, Inc. v. Erie Ins.

Group, 981 F. Supp. 932, 935 (D. Md. 1997); Higgins v.

Kentucky Fried Chicken, 953 F. Supp. 266, 270 (W.D. Wis.

1997); McShares, Inc. v. Barry, 979 F. Supp. 1338, 1344 (D.

Kan. 1997); Scialo v. Scala Packing Co., Inc., 821 F. Supp.

1276, 1278 (N.D. Ill. 1993); Weimer v. City of Johnstown,

N.Y., 931 F. Supp. 985, 991 ft.6(N.D. N.Y. 1996); Yellow

Cab Co. of Pittsburgh v. Gasper, 994 F. Supp. 344, 347

(W.D. Pa. 1998).

The Sixth Circuit, however, while adopting the policy

considerations articulated in McKinney, supra, creates an

absolute right of removal in later-served defendants whether

prior-served defendants have exercised their Opportunity to

remove or allowed it to lapse. For numerous and compelling

reasons, the Petitioner respectfully submits that this Court

Should grant certiorari and reverse the Sixth Circuit.

First, the creation of a pure last-served defendant rule

opens the door for repeated journeys to federal court to decide

the preliminary issue of which forum will hear the case. This

not only undermines the concept of comity between state and

federal courts, but also shifts the burden of proving complete

diversity away from the party seeking to invoke federal

jurisdiction.

It is generally recognized that in crafting the removal

statutes, Congress intended to minimize the interference with

state court jurisdiction, as is evidenced by the provisions of 28

USC § 1447(d) that an order remanding a case to state court

is not reviewable “on appeal or otherwise”. As stated by the

First Circuit Court of Appeals in La Providencia Development

Corporation, 406 F2d 251, 252 (1* Cir. 1969):

“Removal in diversity cases, to the prejudice

of state court jurisdiction is a privilege to be

strictly construed...[citing Shamrock Oil & Gas

v. Sheets, 313 US 100, 61 S. Ct. 868, 85 L.

Ed 1214 (1941)]... and the state court

proceedings are to be interfered with once. at

most. This is not only in the interest of

judicial economy, but out of respect for the

State court and in recognition of principles of

comity. The action must not ricochet back and

forth depending upon the most recent

determination of a federal court.” (Emphasis

added).

As noted by Justice Rehnquist in his dissenting opinion

in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336,

354, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976):

“...The removal jurisdiction extended by

Congress works a significant interference in

the conduct of litigation commenced in state

court.”

By adopting a pure last-served defendant rule, the

Sixth Circuit has opened the door to successive removal

petitions limited only by the number of defendants. Indeed,

the case sub judice was removed from state court on three

separate occasions, resulting in a delay of more than 19

months in prosecution of the action on its merits.

Second, by permitting later-served defendants an

independent right to seek removal within 30 days of being

served, the Sixth Circuit effectively shifts the burden of proof

in removal petitions from the party seeking to invoke diversity

jurisdiction (after all, if they fail, subsequently served

defendants will provide another bite at the apple) to the party

seeking remand (if unable to prove lack of diversity, that party

can be subjected to repeated removal petitions until all named

defendants have actually been served). Such a result literally

wipes out over 110 years of precedent as first established by

this Court in Carson v. Dunham, 121 US 421, 425-426

(1886), i.e. that the burden of proving diversity jurisdiction is

on the party attempting to invoke federal jurisdiction. See

also Wilson v. Republic Iron & Steel Co. , 257 U.S. 92, 97, 42

S. Ct. 35, 37, 66 L. Ed. 144 (1921).

Although the Sixth Circuit contends that such problems

can be avoided by the Plaintiff arranging for all defendants to

be served at about the same time, the within case is a classic

example of how that is often not possible. Instead, Petitioner

submits that the first served defendant, if it desires to remove

an action, should supply the Court with affirmative proof of

complete diversity of all parties; if it is unable to do so, the

case should be remanded to state court permanently [unless it

becomes “subsequently removable” for a reason espoused in

§ 1446(b).]'

Otherwise, as Justice Rehnquist noted in the dissenting

opinion in Thermtron Products, Inc., supra, at p. 336

“... federal removal provisions may become a device affording

litigants a means of substantially delaying justice.” Indeed,

this case provides an excellent example of just how long

justice can be delayed, as the parties bounced back and forth

from state to federal court from May 12, 1994 until January,

1996. Coincidentally, Alusuisse was under indictment in

Shelby Circuit Court throughout this time.

Finally, adoption of a pure last-served defendant rule

abolishes the near universal rule that if a first-served

defendant fails to effect timely removal within its 30 day

period, it cannot thereafter tender a valid consent or join ina

later-served defendant’s removal petition. This particular

facet of the “rule of unanimity” was relied upon by the Ninth

Circuit in Cantrell, supra, and alluded to in footnote 3 of the

Fourth Circuit’s opinion in McKinney, supra.

‘Here, Alusuisse was a co-defendant with Ellison in another

pending action arising from the same fire that killed Pau! Brierly,

and could have easily supplied the Court with evidence of Ellison’s

citizenship when Alusuisse filed its first notice of removal.

Additionally, it was Alusuisse that informed Brierly of Ellison’s

“business address”. Instead, evidence of Ellison’s citizenship was

not presented until he was served, over 16 months later, the delay

having been caused by the District Court’s Stay Order.

Clearly, if the decision of the Sixth Circuit is allowed

to stand, it will open the floodgate to litigation on an issue that

was heretofore fairly well-settled. The federal courts will be

subjected to repeated removal petitions on the same case, state

courts will be repeatedly interrupted, and aggrieved parties

will be repeatedly delayed from litigating the merits of the

underlying action. Such a result is certainly at odds with the

concept of comity between the state and federal courts, and

the policy considerations articulated by this Court in

Shamrock Oil & Gas v. Sheets, 313 US 100, 108-109, 61 S.

Ct. 868, 872, 85 L. Ed. 1214 (1941), i.e. that the removal

Statute is to be strictly construed against removal.

Accordingly, Petitioner respectfully urges the Court to

grant certiorari to remove the conflict among the Circuit

Courts as to application of the 30 day removal period set forth

in 28 USC § 1446(b).

2. The Court should grant certiorari to

address the question of whether the 1988

Amendment to 28 USC § 1446(b), creating a

one-year limitation on diversity removal,

and this Court’s decision in Caterpillar, Inc.

v. Lewis, 519 U.S. 61, 117 S. Ct. 467 (1996)

apply to all civil actions, or only to those not

initially removable.

28 USC §1446(b) states in pertinent part as follows:

“The notice of removal of a civil action or

proceeding shall be filed within thirty days

after receipt by the defendant, through service

or otherwise, of a copy of the initial pleading

setting forth the claim for relief upon which

such action or proceeding is based...

If the case stated by the initial pleading is not

removable, a petition for removal may be filed

within thirty days after receipt by the

defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or

other paper from which it may first be

ascertained that the case is one which is or has

become removable, except that a case may not

be removed on the basis of jurisdiction

conferred by section 1332 (diversity of

citizenship) of this title more than one ( 1) year

after commencement of the action.”

In Caterpillar, Inc. v. Lewis, supra, a case involving

the eventual dismissal of non-diverse parties, Justice Ginsburg

addressed the one-year limitation of § 1446(b) as follows:

“When a plaintiff files in state court a civil

action over which the federal district courts

would have original jurisdiction based on

diversity of citizenship, the defendant or

defendants may remove the action to federal

court, 28 USC 1441(a), provided that no

defendant “is a citizen of the State in which

such action is brought,” § 1441(b). Ina case

not originally removable, a defendant who

receives a pleading or other paper indicating

the post-commencement satisfaction of federal

jurisdictional requirements-for example, by

reason of the dismissal of a nondiverse party-

may remove the case to federal court within 30

days of receiving such information. § 1446(b).

No case, however, may be removed from state

to_federal_ court based on diversity of

citizenship ‘more than 1 year after

commencement of the action’.” (emphasis

added)

The Kentucky Rules of Civil Procedure, CR 3.01,

states:

“A civil action is commenced by the

filing of a complaint with the court and the

issuance of a summons or warning order

thereon in good faith.”

The within action was commenced on May 12, 1994.

Ellison’s removal petition was filed more than 18 months

later, on November 30, 1995.

The Sixth Circuit concluded that in enacting the 1988

amendment to 28 USC § 1446 (b), Congress intended the one-

year limitation to apply only to cases that were not initially

removable. It further concluded that the language of this

Court in Caterpillar, supra, was limited in its application to

cases that were not initially removable. The same position has

been adopted by the Ninth Circuit in Ritchey v. Upjohn Drug

Co., 139 F. 3d 1313 (9" Cir.), cert. denied 119 S. Ct. 407

(1998). See also New York Life Ins. Co. v. Deshotel, 142 F.

3d 873 (5" Cir. 1998).

With all due respect to the Circuit Courts, the

Petitioner reads this Court’s decision in Caterpillar, supra, as

a blanket prohibition on the removal of diversity actions more

than one year after commencement of the action, whether

initially removable or not. Such an interpretation is in

keeping not only with the general purposes of the 1988

amendment, to-wit: restrict diversity jurisdiction, but also

with the well-settled rule that the removal statute is to be

Strictly construed against removal.

While the Circuit Courts to consider the question are

apparently in harmony, the District Courts are sharply

divided, with at least one District Court concluding it is

jurisdictional. See Green Point Savings Bank v. Hidalgo, 910

F. Supp. 89, (E.D.N.Y. 1995). Additionally, because a

remand order is not reviewable “on appeal or otherwise”, 28

USC § 1447(d), Petitioner submits that it is imperative that

the District Courts receive a definitive answer from the

Supreme Court as to the correct application of the one-year

limit of § 1446(b). Accordingly, Petitioner respectfully urges

the Court to grant certiorari.

3. The Court should grant certiorari to

prevent further erosion of its ruling in

Shamrock Oil & Gas y. Sheets, supra, that

the removal statute “...must be strictly

construed against removal.”

This Court’s decision in Shamrock Oil & Gas y.

Sheets, supra, is universally construed as requiring that the

removal statute be strictly construed against removal. While

the Sixth Circuit acknowledged this guiding principal, it

considered three issues of first impression in the case at bar

(the 30-day rule, the one-year limitation, and _ the

appropriateness of a removal petition filed by a subsequently-

served defendant asserting the same jurisdictional basis on

which the action was previously remanded), and ruled in favor

of removal on all three issues.

Petitioner views this as part of a growing trend in

which the lower Courts pay lip service to Shamrock Oil &

Gas v. Sheets, supra, and its progeny, but then construe the

Statute in a way to expand access to the federal court. See

Ritchey v. Upjohn Drug Co., supra, New York Life Ins. Co.

v. Deshotel, supra; Freeman v. Bechtel, 936 F. Supp. 320

(M.D.N.C. 1996); Zogbi v. Federated Dep’t Store, 767 F.

Supp. 1037 (D.D. Cal. 1991).

Petitioner respectfully prays that the Court will take

this opportunity to emphasize to the lower Courts that

Shamrock Oil & Gas v. Sheets, supra, is still the law of the

land, and its direction to strictly construe the removal statute

against removal must be followed. Otherwise, Petitioner

anticipates that the trend toward expanding diversity access to

federal court will accelerate, and Shamrock will become a

mere footnote in the history of statutory construction.

4. The Court should grant certiorari to

address the application of 28 USC § 1447 (d)

to removal petitions filed by later-served

defendants named in the original Complaint,

asserting the same basis for jurisdiction on

which an earlier-served defendant’s removal

petition was remanded by the District Court.

28 USC § 1447 (d) provides as follows:

“(d) An order remanding a case to the State

court from which it was removed is not

reviewable on appeal or otherwise, except that

an order remanding a case to the State court

from which it was removed pursuant to section

1443 of this title shall be reviewable by appeal

or otherwise.”

Here, Alusuisse removed the case from state to federal

court On two separate occasions, both of which relied upon

diversity of citizenship as the jurisdictional basis. Although

Alusuisse was a co-defendant with Ellison in another pending

action arising from the same fire that killed Paul Brierly, and

was aware of his whereabouts in Wisconsin, it failed to

support either of its removal petitions with affirmative proof

that Ellison was no longer domiciled in Kentucky as had been

alleged in the Complaint. As a result of Alusuisse’s failure to

establish diversity, the District Court remanded the case to

state court on both occasions.” However, when Ellison filed

his removal petition asserting the same basis for jurisdiction

as did Alusuisse, the District Court concluded that since he

was not technically a party to Alusuisse’s unsuccessful

attempts at removal, he was not barred from asserting

diversity in his own petition.

The Sixth Circuit then concluded that it would be

unfair to Ellison to prevent him from effecting removal, since

he had not been served with process when Alusuisse’s

petitions were being considered. Thus, the Court reasoned,

Ellison’s removal petition was not the functional equivalent of

a motion to reconsider the remand order, but was a

completely separate petition entitled to consideration on its

Own merits. Of course, this ruling was only possible because

the Court was also adopting a pure “last-served defendant”

rule, discussed infra.

In Petitioner’s view, this conclusion by the Sixth

Circuit Court of Appeals is in conflict with decisions of the

First and Tenth Circuit Courts of Appeals. Specifically, in

Chandler v. O’Bryan, 445 F2d 1045 (10" Cir., 1971), at p.

1057, the Court stated:

> Although Brierly argued in opposition to the second removal

that the Court lacked jurisdiction pursuant to §1447(d), the Court

remanded on the basis that its Order in another pending case, issued

months earlier, was not a “subsequent event” as contemplated by

28 USC § 1446.

“Under the provisions of 28 USC § 1447 (d)

an order remanding a removed case to a state

court is not reviewable...Thus, so far as the

question of a forum in which a cause is to be

litigated is concerned, the determination of a

federal district court that a case is not

removable and remanding it to a state court is

final. Missouri Pac. Ry. Co. v. Fitzgerald,

160 US 556, 583, 16 S. Ct. 389, 40 L. Ed.

536 (1886).

Therefore, since Judge Austin...determined

that the case should be remanded for trial in

the state court, that decision is res judicata as

to any further attempts to litigate the same

issues in a federal court.” (Emphasis in

original).

The First Circuit Court of Appeals considered the

propriety of a second removal petition in Federal Deposit Ins.

Corp. v. Santiago Plaza, 598 F. 2d 634 (1" Cir. 1979) and

concluded at p. 636:

“The law in this circuit is clear that once a

district court has decided to remand a case and

has so notified the state court, the district

judge is without power to take any further

action. (citation omitted) This is true no

matter how erroneous the district judge may

later decide his remand decision was. ‘The

district court has one shot, right or wrong.’

(citation omitted) This rule is not an

aberration from the general rule...Rather, it is

based upon the statutory command that ‘[a]n

order remanding a case to the State Court from

which it was removed is not reviewable on

appeal or otherwise’ 28 USC § 1447 (d)...”

(Emphasis added).

The Petitioner respectfully submits that in the case at

bar, the notice of removal filed by Ellison, but based upon the

same grounds previously ruled upon by the Court (diversity

jurisdiction), could no more “reinvest” the District Court’s

jurisdiction than if it had been filed by Alusuisse. Because

Petitioner views this holding of the Sixth Circuit to be yet

another example of the erosion of Shamrock Oil & Gas Corp.

v. Sheets, supra, and believes it to further render § 1447 (d)

meaningless until all defendants have been served, he

respectfully prays that the Court will grant certiorari.

~ 5. The Court should grant certiorari,

because the lower Courts are imposing a

burden of proof on summary judgment in a

civil action that exceeds the burden of proof

necessary to support a criminal conviction.

KRS 342.610(4) provides that if injury or death results

to an employee “...through the deliberate intention of his

employer to produce such injury or death...”, the personal

representative can proceed with an action at law as if the

Workers’ Compensation Act, KRS Chapter 342, had not been

passed. In Louisville and Jefferson County v. Travelers Ins.,

753 F2d 533 (6" Cir. 1985), the Court held at p. 538:

“Taken literally, Trautwein holds that an

unlawful act is all that needs to be proven:

‘malice may be presumed from the unlawful

act itself’...Distler willfully performed an

illegal act under conditions where it was

manifest that damage would result.

... There can be no doubt that the evidence in

this case established an intentional act from

which damage ‘manifestly’ could or would

result...

...Where a deliberate act is required to bring

about the damage, proving the act provides

sufficient evidence of a deliberate intention to

inflict the damage. Intent to damage the

property can be presumed from circumstantial

evidence of a deliberate act which ordinarily

would cause such damage.”

In this case, the deposition testimony established that:

(1) a strong odor of combustible vapors was present such that

introduction of a spark would ignite and cause a fire and/or

explosion, and David Ellison was informed of this hazard by

other employees; (2) serious injury or death was a natural and

probable consequence of welding in an atmosphere charged

with combustible vapors (3) David Ellison, as plant safety

manager, had to give his approval for welding to commence;

(4) that federal safety regulations were violated by not

obtaining a reading of the lower explosive limits (LEL) prior

to commencement of the welding; (5) David Ellison and

others intentionally directed Paul Brierly to stand fire watch

over the welding operations, and intentionally directed that

welding commence; and (6) Paul Brierly was killed as the

direct result of introducing a spark, flame or welding arc into

an atmosphere charged with combustible vapors.

The District Court and the Circuit Court both

characterized Ellison’s conduct as reckless or wanton, but

concluded that intent to injure or kill could not be inferred

from the facts presented. Could not the same be said of the

arsonist who lights a fire without checking for people inside

the building? Death is specifically recognized in Kentucky as

a natural consequence of fire, Reddick v. Commonwealth, 17

Ky. Law. Rep. 1020, 33 SW 416 ( 1895), and an arsonist can

be convicted of intentional murder.

If a jury can be allowed to infer the intent necessary to

convict a person and deprive him of life or liberty, it is

offensive to the sanctity of human life to impose a higher

burden of proof to overcome the exclusive remedy provisions

of a workers’ compensation act. Certainly it is not

appropriate to grant Summary judgment on Ellison’s

subjective intent, and Petitioner submits that it is error to have

done so.

CONCLUSION

The within Petition for Writ of Certiorari should be

granted to address the extent to which 28 USC § 1446

Provides access to federal court, and the extent to which §

1446 and § 1447 limit access to federal court in diversity

Cases. It should also be granted to establish the number of

times state court proceedings can be interrupted by removal

petitions.

Respectfully submitted,

/s/

FRED E. FISCHER

Counsel of Record

MIKE KELLY

713 West Main Street

Louisville, KY 40202

(502) 589-6380

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed June 10, 1999]

No. 97-6190

JEFFREY D. BRIERLY,

Administrator of the Estate of

Paul Brierly,

Plaintiff-Appellant,

¥.

ALUSUISSE FLEXIBLE

PACKAGING, INC.; DAVID

ELLISON,

Defendants-Appellees.

Nm meee eee eee ee”

AMENDED JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Kentucky at Frankfort.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION WHEREOF , itis ORDERED

that the judgment of the district court is AFFIRMED in all

respects.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed June 10, 1999]

No. 97-6190

JEFFREY D. BRIERLY,

Administrator of the Estate of

Paul Brierly,

Plaintiff-Appellant,

¥.

ALUSUISSE FLEXIBLE

PACKAGING, INC.; DAVID

ELLISON,

Defendants-Appellees.

Ne ee ee ee eee ee ee ee”

Before: GUY, DAUGHTREY, and MOORE, Circuit

Judges.

AMENDED OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

This diversity wrongful-death action was originally filed in

State court against two defendants, only one of whom had

been served when the case was removed to federal court. The

Court of Appeals Amended Opinion - 6/10/99

district court remanded, after finding lack of proof of

complete diversity. When the case was removed a second

time by the previously unserved defendant, however, the

district court denied the plaintiff's renewed motion to remand,

finding complete diversity and concluding that the one-year

time limitation on removal of diversity cases contained in 28

U.S.C. § 1446(b) was inapplicable. On the merits, the

district court then granted the defendants’ motions for

summary judgment, holding that the plaintiff does not meet

any of the exceptions to the Kentucky Workers’ Compensation

Act that would permit the filing of an independent wrongful

death action. Finding no error, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Paul Brierly was killed in an explosion at the Alusuisse

Flexible Packaging plant on August 30, 1993. Electing to

forego the decedent’s statutory right to workers’ compensation

benefits, Brierly’s estate instead filed this wrongful death

action in state court, alleging that Alusuisse “deliberately

intended” to kill Brierly, which, if proven, would exempt him

from the exclusive remedy provisions of the Kentucky

Workers’ Compensation Act.

At the time of his death, Brierly was a co-op student

attending Shelby County Vocational School and was working

with Alusuisse under the supervision of David Ellison, among

others. Alusuisse manufactures materials for packaging and

labeling foods and pharmaceutical medicines. The printing

press components used to produce the labels gradually

develop a buildup of ink and adhesive materials, and the

workers eliminate the buildup by disassembling the

components and running them through a “large-parts washing

Court of Appeals Amended Opinion - 6/10/99

machine.” The washing machine was similar to a dishwasher,

but the solvent cleaning solutions used had low flash points

and were highly flammable.

The parties do not disagree about the events leading up

to the accident that took Brierly’s life. On Friday, August 27,

1993 -- three days before the accident -- the seal on the main

pump of the parts washing machine broke, allowing the

flammable solvent solution to leak during operation of the

machine. The employee who was operating the machine

when the leak developed shut the washer down, notified

Alusuisse’s maintenance department, and reported the

problem to his supervisor. The maintenance department made

plans to remove the pump on the following Monday.

The district court found that the following precautions

were taken to minimize the possibility that the removal of the

pump would generate sparks and thus create a fire hazard:

‘(1) the electricity to the machine was locked

out and tagged out; (2) the washing machine

and solvent supply reservoir were drained of

solvent; (3) the pit below the washer was

ventilated with a compressed air hose over the

course of the entire weekend to purge any

accumulated fumes from underneath the

machine; (4) the washing machine door was

left open Friday evening so that the interior of

the machine could be aired out over the

weekend; (5) and a special floor-level

ventilation system was left running during the

weekend to help purge the room of fumes.

Court of Appeals Amended Opinion - 6/10/99

Before the pump was replaced and welding begun,

Alusuisse took additional Safety measures: “(1) water was

placed in the pit below the machine so as to prevent sparks

from igniting any dried solvent residue left behind from the

leaking pump; and (2) welding blankets were placed on and

around the filter basket housing and parts washing machine.”

Dave Ellison, Alusuisse’s corporate safety director,

made two trips to the parts washing room on Monday. On his

second trip to the washing room, Terry Lingle, the employee

responsible for Overseeing operation of the parts washing

room, expressed concern that about the possibility that sparks

created during the welding process could ignite a fire.

However, both Ellison and Gary Wordlow, the maintenance

supervisor, reassured Lingle about the many precautions that

had been taken. Wordlow even volunteered to do the welding

himself, but maintenance lead-man Reinhold Ritzi decided that

he would do the welding because he had more experience than

Wordlow. Subsequently, Ellison and Wordlow gave their

final approval for the welding.

Wordlow, Ellison, and Ritzi apparently believed that

the parts washing room had been monitored with the “LEL”

meter, a device which is used to measure the “lowest

explosive limit” of solvent vapor in an area before a

flammable source is introduced. In the wake of the explosion,

however, it was discovered that the LEL meter had not been

used. Each of the men involved Stated that they had assumed

that one of the others had obtained the readings.

A “fire watch” crew was assembled before Ritzi began

the welding. Wordlow and other maintenance crew members

-- including Brierly - stood by with fire extinguishers

watching for stray sparks that could ignite a fire. Brierly, the

Court of Appeals Amended Opinion - 6/10/99

least experienced member of the crew, was almost 12 feet

away from the welding site, further away than any of the

other crew members.

As Ritzi prepared to weld the filter basket cover, a

spark ignited undetected residual solvent fumes inside the

parts washing machine, causing an explosion. The explosion

blew off the steel door on the opposite end of the parts

washing machine, and the door struck Brierly, resulting in his

death. Wordlow, Ritzi, and one other worker also suffered

injuries as a result of the incident.

Several state and local administrative agencies

investigated the explosion, including the Kentucky Labor

Cabinet, the Kentucky Fire Marshal's office, and the

Environmental Protection Agency. The Kentucky Labor

Cabinet issued a citation to Alusuisse and assessed a $24,500

civil penalty based on the insufficiency of the precautions

taken the day of the accident and the inadequate training of

some of the workers in first aid and use of fire extinguishers.

The Kentucky Fire Marshal’s office concluded that the

explosion was accidental.

After a coroner’s inquest, the coroner’s jury found that

Alusuisse “deliberately placed [Brierly] and other employees

in a known, unsafe and hazardous position” and

recommended that the case be submitted to the Shelby County

grand jury. On June 20, 1994, the grand jury indicted

Alusuisse for reckless homicide under KRS 507.050, a class

D felony. The indictment alleged that Alusuisse “committed

the offense of reckless homicide when it recklessly caused the

death of Paul D. Brierly by failing to perceive the substantial

and unjustifiable risk of explosion which constituted a gross

| i

Court of Appeals Amended Opinion - 6/10/99

deviation from the standard of Care that a reasonable person

would observe in the situation as it then existed.”

Brierly’s administrator filed this tort action on his

behalf in the Shelby County Circuit Court on May 12, 1994,

naming Alusuisse and David Ellison as defendants. On June

8, 1994, within 30 days of being served with the complaint,

Alusuisse removed the state court action to federal district

court on the basis of diversity jurisdiction. On March 30,

1995, the district court remanded the action to the Shelby

Circuit Court on Brierly’s motion, because Alusuisse had

failed to introduce evidence to establish complete diversity by

Showing that Ellison was no longer a citizen of Kentucky.

Alusuisse then filed a motion to reconsider, which the district

court denied, based on its conclusion that 28 U.S.C. §

1447(d) divested it from jurisdiction to consider such a motion

after having remanded the case. At the same time it filed the

motion to reconsider, Alusuisse also filed a second notice of

removal. The district court again remanded the case, holding

that the party that seeks to remove an action has the burden to

present evidence of diversity in response to a motion to

remand.

Ellison did not consent to either of Alusuisse’s notices

of removal or the motion to reconsider because he had not yet

been served at the time Alusuisse filed these papers. Brierly

had attempted to serve Ellison in Shelby County early in the

proceedings but had been unsuccessful because Ellison had

already left the state for Wisconsin. The district court noted

that Brierly had obtained the new business address of Ellison

from Alusuisse in August 1994, but could not effect service

upon him until late October 1995 because the district court

_ had ordered a stay of proceedings in the case until it resolved

Court of Appeals Amended Opinion - 6/10/99

the motion to remand. On November 10, 1995, Brierly filed

an amended complaint and effected service upon Ellison. On

November 30, 1995, within 30 days of being served, Ellison

filed a notice of removal on the basis of diversity, and

Alusuisse filed a notice of its consent to Ellison’s removal on

the same day. On January 30, 1996, the district court denied

Brierly’s motion to remand, taking judicial notice of Ellison’s

affidavit, in which he represented that he was a resident of

Wisconsin at the time the original action was filed and thereby

established complete diversity of the parties. On September

4, 1997, the district court granted Alusuisse’s and Ellison’s

motions for summary judgment, and the plaintiff now appeals

that order.

DISCUSSION

I. Jurisdiction

Brierly argues that the district court’s first order of

remand divested it of all jurisdiction in this case, precluding

it from later deciding, in the context of a second attempt to

remove, that it did, in fact, have jurisdiction to hear the case.

This question is governed by 28 U.S.C. § 1447(c) and (d).

Subsection (c) provides in pertinent part that “[i]f at any time

before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.”

Subsection (d) precludes reviewing such remand orders,

providing that “[a]n order remanding a case to the State court

from which it was removed is not reviewable on appeal or

otherwise... .”

Although we have not previously addressed this

specific issue, the language in § 1447(d) has been universally

Court of Appeals Amended Opinion - 6/10/99

construed in other circuits to preclude further reconsideration

or review of a district court’s order remanding a case, because

a remand to state court divests a district court of jurisdiction

such that it may not take any further action on the case.'

' See, e.g., United States y. Rice, 327 U.S. 742 (1946)

(applying 28 U.S.C. § 71); In re Lowe, 102 F.3d 731, 735 (4th

Cir. 1996) (issuing writ of mandamus instructing district court that

had improperly reconsidered its previous remand order to remand

case to state court and explaining “the entry of the order of

remand . . . divested the district court of all jurisdiction in this case

and precluded it from entertaining any further proceedings of any

character. . .”) (quoting Three J Farms, Inc. v. Alton Box Bd. Co.,

609 F.2d 112, 115 (4th Cir. 1979)); Hunt v. Acromed Corp., 961

F.2d 1079, 1081-82 (3d Cir. 1992) (holding clerk’s act of sending

certified copy of order of remand deprived district court of

jurisdiction to consider subsequent motion to file amended notice

of removal); Harris v. Blue Cross/Blue Shield of Alabama, Inc.,

951 F.2d 325, 326-27 (11th Cir. 1992) (holding both appellate and

district court precluded from reviewing district court’s finding that

it lacked subject matter jurisdiction); Seedman v. U.S. Dist. Court

for the Cent. Dist. Of California, 837 F.2d 413, 414 (9th Cir.

1988) (per curiam) (issuing writ of mandamus instructing district

court to remand case to state court despite district court’s

conclusion that initial order was based upon clerical error); New

Orleans Pub. Ser., Inc. v. Majoue, 802 F.2d 166, 167 (Sth Cir.

1986) (per curiam) (holding employer’s suit seeking declaratory

and injunctive relief were attempts to seek collateral review of

district court’s earlier remand order over which federal court had

no jurisdiction; vacating district court’s order and remanding for

order dismissing for lack of subject matter jurisdiction); Federal

Deposit Insurance Corp. v. Santiago Plaza, 598 F. 2d 634, 636

(Ist Cir. 1979) (“foJnce a district court has decided to remand a

case and has so notified the state court, the district judge is without

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We recognize, as the Fourth Circuit noted in /n re

Lowe, 102 F.3d 731, 734 (4th Cir. 1996), that there are few

exceptions to the general rule that remand orders are not

reviewable and that these exceptions have been narrowly

crafted by Congress and the courts. In this case, however,

the removal by Ellison was not the functional equivalent of a

motion to review or reconsider, but an original petition by a

party with standing to remove after an initial remand because

of his delayed service, the delay having been caused by the

district court’s stay order. We conclude that it would be

unfair to preclude Ellison, a later-served defendant who was

not involved in the first removal attempt, from the opportunity

to present evidence regarding his residence and effect removal

-- with the consent of the remaining defendant, of course.

II. The 30-Day Time Limitation of 28 U.S.C. 1446(b)

Having determined that the district court had

jurisdiction to consider Ellison’s petition for removal, the next

question we must consider is whether, in cases with multiple

defendants served at different times, the last-served defendant

is allowed a full 30 days after being served to remove or,

instead, only has 30 days from time the first defendant is

served. The question is one of first impression in this circuit

power to take any further action.”); /n re La Providencia

Development Corp., 406 F.2d 251, 253 (ist Cir. 1969) (holding

district court cannot vacate remand order once entered even if

persuaded it was erroneous because “nothing could be more

inclusive than the phrase ‘on appeal or otherwise.’”) 14C Charles

A. Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure: Jurisdiction § 3739 at 491 (3d ed. 1998).

lla

a ee eee ee oe FT

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and one that has divided our sister courts.” Our analysis

begins with the Statutory language. Under 28 U.S.C.

§ 1446(b):

The notice of removal of a civil action or

proceeding shall be filed within thirty days

after the receipt by the defendant, through

service or otherwise, of a copy of the initial

pleading setting forth the claim for relief upon

which such action or proceeding is based, or

within thirty days after the service of summons

upon the defendant if such initial pleading has

then been filed in court and is not required to

be served on the defendant, whichever period

is shorter. . . .

The statutory language itself contemplates only one defendant

and thus does not answer the question of how to calculate the

timing for removal in the event that multiple defendants are

served at different times, one or more of them outside the

original 30-day period.

’ The two leading treatises also diverge in their

recommendations of how to resolve this legal issue. Wright &

Miller recommend permitting a later-served defendant 30 days to

remove, whereas Moore’s Federal Practice recommends that the

30-day time limit should begin to run from service on the first

defendant. See 14C Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure: Jurisdiction

§ 3739 at 336-39 (3d ed. 1998); Moore’s Federal Practice § 107-

30[3][a] (3d ed. 1997).

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Faced with slightly different factual settings, the courts

have reached varying results by emphasizing the policy

underlying the statute. For example, in Brown v. Demco,

Inc., 792 F.2d 478, 481-82 (Sth Cir. 1986), the Fifth Circuit

held that the failure of the first-served defendant to file a

notice of removal within 30 days of service prevents all

subsequently served defendants from later removing the action

to district court unless there is evidence that the plaintiff

intentionally delayed naming other defendant in a bad-faith

attempt to prevent removal. See also Getty Oil Corp. v.

Insurance Co. of North America, 841 F.2d 1254 (Sth Cir.

1988); 14C Charles A. Wright, Arthur R. Miller & Edward

H. Cooper, Federal Practice and Procedure: Jurisdiction

§ 3739 at 337 (3d ed. 1998) (citing cases). The original

defendants in Brown could have removed earlier in the

litigation because all the requirements for the district court to

exercise diversity jurisdiction had been met, but they had not

done so. In holding that the subsequently added defendant

could not remove to federal court, the Fifth Circuit

concluded:

The general rule has been criticized as

unfair. . . [W]e do not perceive the suggested

unfairness to the subsequently added defendant

who is merely not granted an opportunity that

might have been available to others. A

defendant who is added to a case in which a

co-defendant has failed to seek removal is in

no worse position than it would have been in if

the co-defendant had opposed removal or were

domiciled in the same state as the plaintiff. To

permit the defendants in this case to obtain

removal after they have tested state-court

waters for four years would give them a

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second opportunity to forum-shop and further

delay the progress of the suit. The unfairness

of this to the Plaintiff outweighs the

unfairness, if any, to the last-joined defendant.

The forum for a suit Ought to be settled at

some time early in the litigation.

Brown, 792 F.2d at 482.

The Fourth Circuit, by contrast, has held that

“individual defendants have thirty days from the time they are

served with process or with a complaint to join in an

otherwise valid removal petition.” McKinney vy. Board of

Trustees of Maryland Community College, 955 F.2d 924, 928

(4th Cir. 1992). In McKinney, the earlier-served defendants

had petitioned for removal within their allotted 30 days, and

the question was whether a later-served defendant could join

in their removal petition after that 30-day period had elapsed.

The Fourth Circuit articulated several policy considerations

supporting its conclusion. First, the court stated, it did not

believe Congress intended the inequity that would result from

“establishing one fixed deadline for defendants served as

much as thirty days apart.” /d at 927. The court additionally

noted a policy concern that was not present when Demco was

decided by the Fifth Circuit, pointing out that in 1988,

Congress amended § 1446(a) to provide that petitions for

removal are now subject to Rule 11 of the Federal Rules of

Civil Procedure. See Judicial Improvements and Access to

Justice Act, Pub.L.No. 100-702, § 1016(b), 102 Stat. 4669

(1988). In light of that amendment, the court reasoned, a rule

that the last-served defendant has 30 days in which to remove

a case to federal court is imperative. “Otherwise, later served

defendants will either have to forego removal or join

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hurriedly in a petition for removal and face possible Rule 11

sanctions. McKinney, 955 F.2d at 928. The court also

responded to the argument that plaintiffs are entitled to know

early in the proceedings whether the case will be heard in

state or federal court, noting that plaintiffs can ensure a quick

resolution of the forum by simply “mak{ing] sure that all

defendants are served at about the same time.” /d. at 927.

The facts in this case are somewhat different than the

facts before the McKinney court in that the earlier-served

defendants in McKinney had a valid petition for removal

pending at the time the later-served defendant joined in the

removal petition, whereas the earlier-served defendant in the

case at bar had failed in its attempts to remove the case when

the later-served defendant filed a new removal petition.

Nonetheless, we find that the policy considerations articulated

by the Fourth Circuit in McKinney are equally applicable to

the facts before this court.

Furthermore, as a matter of statutory construction,

holding that the time for removal commences for all purposes

upon service of the first defendant would require us to insert

“first” before “defendant” into the language of the statute.

See id. We are naturally reluctant to read additional words

into the statute, however. If Congress had intended the 30-

day removal period to commence upon service of the first

defendant, it could have easily so provided. For that reason,

and as a matter of fairness to later-served defendants, we hold

that a later-served defendant has 30 days from the date of

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service to remove a case to federal district court, with the

consent of the remaining defendants.?

Ill. The One-Year Limitation of 28 U.S.C. § 1446(b)

In addition to the 30-day time limitation provided by

the first paragraph of 28 U.S.C. § 1446(b), set out in the

> Our holding on this issue raises the question of whether

Alusuisse, who had previously failed in its attempts to remove the

Case to district court within the 30-day time limitation, could

consent to Ellison’s petition to remove the case. It appears that

none of our sister circuits have addressed this issue. The rule of

unanimity requires that in order for a notice of removal to be

properly before the court, all defendants who have been served or

otherwise properly joined in the action must either join in the

removal, or file a written consent to the removal. We conclude

that a first-served defendant can consent to a_ later-served

defendant’s removal petition, despite having already failed in its

own efforts to remove. Given the rule of unanimity, holding

otherwise would vitiate the removal application of the later-served

defendants and thereby nullify our holding that later-served

defendants are entitled to 30 days to remove the case to district

court. See Freeman v. Bechtel, 936 F. Supp. 320, 325-27

(M.D.N.C. 1996) (holding first-served defendants could consent

to later-served defendant’s removal despite having already waived

their right to removal); but see Holder vy. City of Atlanta, 925 F.

Supp. 783, 785-86 (N.D.Ga. 1996) (holding that later-served

defendants cannot obtain consent from defendants who failed to

remove within their own 30-day period); Scialo v. Scala Packing

Co., Inc., 821 F. Supp. 1276, 1278 (N.D. Ill. 1993) (refusing to

allow later-served defendants whose petition to remove had failed

because of noncompliance with § 1446(b) to consent to later-served

defendant’s petition for removal).

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Court of Appeals Amended Opinion - 6/10/99

preceding section of this opinion, the second paragraph of

§ 1446(b) provides an additional one-year time limit on

removal:

If the case stated by the initial pleading is not

removable, a notice of removal may be filed

within thirty days after receipt by the

defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or

other paper from which it may first be

ascertained that the case is one which is or has

become removable, except that a case may not

be removed on the basis of jurisdiction

conferred by section 1332 of this title more

than | year after commencement of the action.

28 U.S.C. § 1446(b) (emphasis added).

“[I}n diversity actions Rule 3 [of the Federal Rules of

Civil Procedure] governs the date from which various timing

requirements of the Federal Rules begin to run. “Walker v.

Armco Steel Corp., 446 U.S. 740, 751 (1980) (footnote

omitted). Thus, this action began on May 12, 1994, the date

upon which Brierly filed his complaint with the court. See

Fed. R. Civ. P. 3. Brierly contends that Ellison's removal

some 18 months later violated the one-year limitation

established by § 1446(b). Although this question is one of

first impression in this circuit, we are guided in our inquiry

by the Ninth Circuit's recent ruling on the same issue in

Ritchey v. Upjohn Drug Co., 139 F.3d 1313 (9th Cir.), cert.

denied, 119 S.Ct. 407 (1998).

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As framed by the court in Ritchey, the question is

basically whether the €xCeption stated in the second paragraph

of § 1446(b) applies to the entire Subsection, or only to the

second paragraph, quoted above. See Ritchey, 139 F.3d at

1316. In interpreting the Statutory language, we are mindful

that the statutes conferring removal jurisdiction are to be

construed strictly because removal jurisdiction encroaches on

a State Court’s jurisdiction. See Shamrock Oil & Gas Corp.

v. Sheets, 313 U.S. 100, 108-09 (1941). Thus, in the interest

of comity and federalism, federal jurisdiction should be

exercised only when it is Clearly established, and any

ambiguity regarding the scope of § 1446(b) should be

resolved in favor of remand to the State courts.

Nevertheless, in this case we are constrained by the

plain language of the Statutory provision. Based upon

ordinary language usage, the qualifying clause - “except that

a case may not be removed on the basis of jurisdiction

conferred by section 1332 of this title more than | year after

commencement of the action” -- can only be interpreted to

modify the antecedent clause to which it is attached, and not

previous sections of the text. If Congress had intended to

place a one-year limitation on removal of all diversity cases,

it surely would have chosen less obscure and counter-intuitive

wording to accomplish that Purpose. In addition, the policy

discussion found within the legislative history provides

support for this interpretation. See Ritchey, 139 F.3d at 1316-

| 7(discussing legislative history); see also New York Life Ins.

Co. v. Deshotel, 142 F.3d 873, 886-87 (5th Cir. 1998)

(same). We hold that the one-year limitation on removal of

diversity cases applies only to those that were not initially

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removable and, therefore that Ellison’s petition for removal

was not untimely .*

IV. The Motion for Summary Judgment

The district court granted the defendants’ motions for

summary judgment on the basis of the exclusive-remedy

provision of the Kentucky Workers’ Compensation Act that

applies to workplace injuries:

If an employer secures payment of

compensation as required by this chapter, the

liability of such employer under this chapter

shall be exclusive and in place of all other

liability of such employer to the employee, his

legal representative, husband or wife, parents,

dependents, next of kin, and anyone otherwise

entitled to recover damages from such

employer at law or in admiralty on account of

such injury or death. ... .

In support of his argument that the one-year limitation

applies to all diversity actions, Brierly cites the Supreme Court’s

recent opinion in Caterpillar Inc. v. Lewis, in which the Court

commented that “[nJo case, however, may be removed from state

to federal court based on diversity of citizenship ‘more than | year

alter commencement of the action.’"” 519 U.S.61,_—_, 117 S. Ct.

467, 473 (1996) (quoting 28 U.S.C. § 1441(b)). The Supreme

Court, however, was not addressing the interpretation question

presented here, and was speaking of actions that were not originally

removable. See 519U.S. at; 467 S. Ct. at 472-73.

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Ky.Rev.Stat.Ann.§ 342.690(1) (Michie 1997). The plaintiff,

however, argues that this case falls within the “deliberate

intention” exception to the exclusivity of remedies established

by the Act. Kentucky Revised Statute 342.610(4) provides

that an employee or his dependents can file a civil action

against his employer if “the injury or death results to the

employee through the deliberate intention of his employer to

produce such injury or death.” Based on the facts in the

record before us, we cannot agree.

The plaintiff contends that Alusuisse’s intent to kill

Brierly can be inferred from the circumstances surrounding

his death. But, as the district court noted, “[t}he Statutory

Standard . ._. requires more than implied intent; it requires

‘deliberate intention.’” In Support of this proposition, the

court cited Fryman v. Electric Steam Radiator Corp., 277

S.W.2d 25 (Ky. 1955), in which the Kentucky Supreme Court

held that even though an employer had known that the

machine that injured his employee was dangerous and failed

to warn the employee, had failed to properly maintained the

machine, and hadprovided no safety devices on the machine.

there was no evidence that the employer had “determined to

injure the employee” as required by the phrase “deliberate

intention.” /d. at 26.

We conclude that the district court, relying on

controlling state law, correctly concluded that the plaintiff's

allegations are insufficient to meet the specific or deliberate

intent exception to the exclusive-remedy provisions of the

Kentucky Workers’ C ompensation Act. The defendants took

many precautions, albeit clearly not enough, and placed

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Brierly furthest away from the washer in the “fire watch”

line. As the district court noted,

. if Brierly’s death was intended, an

explosion such as this seems like a strange,

clumsy, and umeliable way to carry it out.

Significantly, it was Reinhold Ritzi, who was

not in charge of the operation, that determined

Brierly’s position in the room at the time of

the explosion. It seems far fetched that

Alusuisse would decide to kill Brierly by

creating a spark with a welding rod so as to set

off an explosion in an adjacent machine which

would then blow off a sealed 350-pound steel

door that would strike and kill Brierly.

In light of the Kentucky Supreme Court precedent

interpreting the phrase. “deliberate intention,” we conclude

that the plaintiff did not present evidence to the district court

from which a reasonable jury could conclude that Alusuisse

deliberately intended to cause Brierly's death. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Even if

Alusuisse’s actions were reckless or wanton, which may be a

fair characterization, there is no indication or reasonable

inference that the company intended to injure or kill Brierly.

Accordingly, the Kentucky Workers’ Compensation Act

provides the exclusive remedy for Brierly s death.

Likewise, the Kentucky Worker’s Compensation Act

provides the exclusive remedy against a fellow employee

whose actions cause him injury or death:

Court of Appeals Amended Opinion - 6/10/99

The exemption from liability given an

employer by this section shall also extend to

such employer’s . . . employees . . . provided

the exemption from liability given an

employee. . . shall not apply in any case where

the injury or death is proximately caused by

the willful and unprovoked physical aggression

of such employee

Ky.Rev.Stat.Ann. § 342.690(1) (Michie 1997). As the

district court held, the plaintiff has not alleged that Ellison

intentionally and physically attacked him and, on the facts of

this case, he does not fall within the statutory exception.

CONCLUSION

For the reasons set out above, we conclude that the

district court had jurisdiction over this action because it was

properly removed from state court by the later-served

defendant, Ellison, with the consent of Alusuisse; that the

removal was timely because the one-year limitation on

removal does not apply in this case; and that summary,

judgment was Properly awarded to the defendants. We

therefore AFFIRM the district court’s judgment in all

respects.

22a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed March 12, 1999]

No. 97-6190

JEFFREY D. BRIERLY, )

Administrator of the Estate of )

Paul Brierly, )

Plaintiff-Appellant, )

)

V. )

)

ALUSUISSE FLEXIBLE )

PACKAGING, INC.; DAVID )

ELLISON, )

Defendants-Appellees. )

)

Before: GUY, DAUGHTREY, and MOORE,

Circuit Judges

JUDGMENT

On Appeal from the United States District Court for the

Eastern District of Kentucky at Frankfort.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

23a

IN CONSIDERATION WHEREOF , itis ORDERED

that the judgment of the district court is AFFIRMED in all

respects.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

24a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed March 12, 1999]

No. 97-6190

JEFFREY D. BRIERLY,

Administrator of the Estate of

Paul Brierly,

Plaintiff-Appellant,

ALUSUISSE FLEXIBLE

PACKAGING, INC.; DAVID

ELLISON,

Defendants-Appellees.

a a a a

Before: GUY, DAUGHTREY, and MOORE,

Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

This diversity wrongful-death action was originally filed in

state Court against two defendants, only one of whom had

been served when the case was removed to federal court. The

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district court remanded, after finding lack of proof of

complete diversity. When the Case was removed a second

time by the Previously unserved defendant, however, the

district court denied the plaintiff's renewed motion to remand,

finding complete diversity and concluding that the one-year

time limitation on removal of diversity cases contained in 28

U.S.C. § 1446(b) was inapplicable. On the merits, the

district court then granted the defendants’ motions for

summary judgment, holding that the plaintiff does not meet

any of the exceptions to the Kentucky Workers’ Compensation

Act that would permit the filing of an independent action.

Finding no error, we affirm.

PROCEDURAL AND FACT. UAL BACKGROUND

Paul Brierly was killed in an explosion at the Alusuisse

Flexible Packaging plant on August 30, 1993. Electing to

forego the decedent's Statutory right to workers’ compensation

benefits, Brierly’s estate instead filed this wrongful death

| action in state court, alleging that Alusuisse “deliberately

intended” to kill Brierly, which, if proven, would exempt him

from the exclusive remedy provisions of the Kentucky

Workers’ Compensation Act.

At the time of his death, Brierly was a CO-op student

attending Shelby County Vocational School and was working

with Alusuisse under the supervision of David Ellison, among

Others. Alusuisse manufactures materials for packaging and

labeling foods and Pharmaceutical medicines. The printing

press components used to produce the labels gradually

develop a buildup of ink and adhesive materials, and the

workers eliminate the buildup by disassembling the

components and running them through a “large-parts washing

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machine.” The washing machine was similar to a dishwasher,

but the solvent cleaning solutions used had low flash points

and were highly flammable.

The parties do not disagree about the events leading up

to the accident that took Brierly’s life. On Friday, August 27,

1993 -- three days before the accident -- the seal on the main

pump of the pans washing machine broke, allowing the

flammable solvent solution to leak during operation of the

machine. The employee who was operating the machine

when the leak developed shut the washer down, notified

Alusuisse’s maintenance department, and reported the

problem to his supervisor. The maintenance department made

plans to remove the pump on the following Monday.

The district court found that the following precautions

were taken to minimize the possibility that the removal of the

pump would generate sparks and thus create a fire hazard:

(1) the electricity to the machine was locked

out and tagged out; (2) the washing machine

and solvent supply reservoir were drained of

solvent; (3) the pit below the washer was

ventilated with a compressed air hose over the

course of the entire weekend to purge any

accumulated fumes from underneath the

machine; (4) the washing machine door was

left open Friday evening so that the interior of

the machine could be aired out over the

weekend; (5) and a special floor-level

ventilation system was left running during the

weekend to help purge the room of fumes.

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Before the pump was replaced and welding begun,

Alusuisse took additional safety measures: “(1) water was

placed in the pit below the machine so as to prevent sparks

from igniting any dried solvent residue left behind from the

leaking pump; and (2) welding blankets were placed on and

around the filter basket housing and parts washing machine.”

Dave Ellison, Alusuisse’s corporate safety director,

made two trips to the parts washing room on Monday. On his

second trip to the washing room, Terry Lingle, the employee

responsible for Overseeing operation of the parts washing

room, expressed concern that about the possibihty that sparks

created during the welding process could ignite a fire.

However, both Ellison and Gary Wordlow, the maintenance

supervisor, reassured Lingle about the many precautions that

had been taken. Wordlow even volunteered to do the welding

himself, but maintenance lead-man Reinhold Ritzi decided that

he would do the welding because he had more experience than

Wordlow. Subsequently, Ellison and Wordlow gave their

final approval for the welding.

Wordlow, Ellison, and Ritzi apparently believed that

the parts washing room had been monitored with the “LEL”

meter, a device which is used to measure the “lowest

explosive limit” of solvent vapor in an area before a

flammable source is introduced. In the wake of the explosion,

however, it was discovered that the LEL meter had not been

used. Each of the men involved stated that they had assumed

that one of the others had obtained the readings.

A “fire watch” crew was assembled before Ritzi began

the welding. Wordlow and other maintenance crew members

including Brierly - stood by with fire extinguishers watching

“

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for stray sparks that could ignite a fire. Brierly, the least

experienced member of the crew, was almost 12 feet away

from the welding site, farther away than any of the other crew

members.

As Ritzi prepared to weld the filter basket cover, a

spark ignited undetected residual solvent fumes inside the

parts washing machine, causing an explosion. The explosion

blew off the steel door on the opposite end of the parts

washing machine, and the door struck Brierly, resulting in his |

death. Wordlow, Ritzi, and one other worker also suffered

injuries as a result of the incident. |

Several state and local administrative agencies

investigated the explosion, including the Kentucky Labor

Cabinet, the Kentucky Fire Marshal’s office, and the

Environmental Protection Agency. The Kentucky Labor

Cabinet issued a citation to Alusuisse and assessed a $24,500

civil penalty based on the insufficiency of the precautions

taken the day of the accident and the inadequate training of

some of the workers in first aid and use of fire extinguishers.

The Kentucky Fire Marshal’s office concluded that the

explosion was accidental.

After a coroner’s inquest, the coroner’s jury found that

.Alusuisse “deliberately placed [Brierly] and other employees

in a known, unsafe and hazardous position” and

recommended that the case be submitted to the Shelby County

grand jury. On June 20, 1994, the grand jury indicted

Alusuisse for reckless homicide under KRS 507.050, a class

D felony. The indictment alleged that Alusuisse “committed

the offense of reckless homicide when it recklessly caused the

death of Paul D. Brierly by failing to perceive the substantial

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and unjustifiable risk of explosion which constituted a gross

deviation froi: the standard of care that a reasonable person

would observe in the situation as it then existed.”

Brierly’s administrator filed this tort action on his

behalf in the Shelby County Circuit Court on May 12, 1994,

naming Alusuisse and David Ellison as defendants. On June

8, 1994, within 30 days of being served with the complaint,

Alusuisse removed the state court action to federal district

court on the basis of diversity jurisdiction. On March 30,

1995, the district court remanded the action to the Shelby

Circuit Court on Brierly’s motion, because Alusuisse had

failed to introduce evidence to establish complete diversity by

showing that Ellison was no longer a citizen of Kentucky.

Alusuisse then filed a motion to reconsider, which the district

court denied, based on its conclusion that 28 U.S.C.

§ 1447(d) divested it from jurisdiction to consider such a

motion after having remanded the case. At the same time it

filed the motion to reconsider, Alusuisse also filed a second

notice of removal. The district court again remanded the

case, holding that the party that seeks to remove an action has

the burden to present evidence of diversity in response to a

motion to remand.

Ellison did not consent to either of Alusuisse’s notices

of removal or the motion to reconsider because he had not yet

been served at the time Alusuisse filed these papers. Brierly

had attempted to serve Ellison in Shelby County early in the

proceedings but had been unsuccessful because Ellison had

already left the state for Wisconsin. The district court noted

that Brierly had obtained the new business address of Ellison

from Alusuisse in August 1994, but could not effect service

upon him until late October 1995 because the district court

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had ordered a stay of proceedings in the case until it resolved

the motion to remand. On November 10, 1995, Brierly filed

an amended complaint and effected service upon Ellison. On

November 30, 1995, within 30 days of being served, Ellison

fried a notice of removal on the basis of diversity, and

Alusuisse flied a notice of its consent to Ellison’s removal on

the same day. On January 30, 1996, the district court denied

Brierly’s motion to remand, taking judicial notice of Ellison’s

affidavit, in which he represented that he was a resident of

Wisconsin at the time the original action was filed and thereby

established complete diversity of the parties. On September 4,

1997, the district court granted Alusuisse’s and Ellison’s

motions for summary judgment, and the plaintiff now appeals

that order.

DISCUSSION

I. Jurisdiction

Brierly argues that the district court’s first order of

remand divested it of all jurisdiction in this case, precluding

it from later deciding, in the context of a second attempt to

remove, that it did, in fact, have jurisdiction to hear the case.

This question is governed by 28 U.S.C. § 1447(c) and (d).

Subsection (c) provides in pertinent part that “[i]f at any time

before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.”

Subsection (d) precludes reviewing such remand orders,

providing that “[a]n order remanding a case to the State court

from which it was removed is not reviewable on appeal or

otherwise... .”

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2 Although we have not previously addressed this

specific issue, the language in § 1447(d) has been universally

construed in other circuits to preclude further reconsideration

or review of a district court’s order remanding a case, because

a remand to state court divests a district court of jurisdiction

such that it may not take any further action on the case. '

' See, e.g., United States vy. Rice, 327 U.S. 742 (1946)

(applying 28 U.S.C. § 71): Inre fowe, 102 F.3d 731,735 (4th Cir.

1996) (issuing writ of mandamus instructing district court that had

improperly reconsidered its previous remand order to remand case

to state court and explaining “the entry of the order of remand. . .

divested the district court of all Jurisdiction in this case and

precluded it from entertaining any further proceedings of any

character. . .”) (quoting Three J Farms, Inc. vy. Alton Box Bd Co.,

609 F.2d 112, 115 (4th Cir. 1979)); Hunt v. Acromed Corp., 961

F.2d 1079, 1081-82 (3d Cir 1992) (holding clerk’s act of sending

certified copy of order of remand deprived district court of

jurisdiction to consider Subsequent motion to file amended notice

of removal); Harris v. Blue Cross/Blue Shield of Alabama, Inc.