# Petition for Writ of Certiorari — Brierly v. Alusuisse Flexible Packaging, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0257%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1076 ## Text 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, v. 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. il 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 1V 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 vi 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 iX 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 2 eT 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 3 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. | 7 (c) A motion to remand the case on the basis of any defect in 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, 6 ————— 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 8 “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 10 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 11 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 12 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 13 — 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 14 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). 15 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 16 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. 17 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... 18 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 19 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. 20 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 21 (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 22 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. 23 “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 24 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. 25 ... 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 26 d f 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 27 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. la 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 2a 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. a 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 3a 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 4a 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. Sa 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 6a 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 Ta | 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 8a 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 9a ee 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 10a Court of Appeals Amended Opinion - 6/10/99 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 Court of Appeals Amended Opinion - 6/10/99 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). 12a Court of Appeals Amended Opinion - 6/10/99 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 13a tetas | Court of Appeals Amended Opinion - 6/10/99 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 l4a Court of Appeals Amended Opinion - 6/10/99 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 15a Court of Appeals Amended Opinion - 6/10/99 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). l6a 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). 17a Court of Appeals Amended Opinion - 6/10/99 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 18a Court of Appeals Amended Opinion - 6/10/99 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. 19a Court of Appeals Amended Opinion - 6/10/99 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 20a Court of Appeals Amended Opinion - 6/10/99 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, vs 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 25a Court of Appeals Opinion - 3/12/99 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 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 26a Court of Appeals Opinion - 3/12/99 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 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. 27a Court of Appeals Opinion - 3/12/99 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 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 “ 28a Court of Appeals Opinion - 3/12/99 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 29a i Court of Appeals Opinion - 3/12/99 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 30a Court of Appeals Opinion - 3/12/99 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... .” 3la Court of Appeals Opinion - 3/12/99 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. 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 32a Court of Appeals Opinion - 3/12/99 We recognize, as the Fourth Circuit noted in /n re fowe, 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, (ist Cir. 1979) (“[o]nce 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.”); /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). 33a Te Court of Appeals Opinion - 3/12/99 instead, only has 30 days from time the first defendant is served. The question is one of first impression in this circuit and one that has divided our sister courts.2 Our analysis begins with the statutory language. Under 28 U.S.C. § 1446(b): is shorter... . 2 30[3]}[a] (3d ed. 1997). 34a 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 The statutory language itself contemplates only on defendant and thus does not answer 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 !ater-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- Court of Appeals Opinion - 3/12/99 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 defendants 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 35a Court of Appeals Opinion - 3/12/99 waters for four years would give them a 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 v. 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 Circui:, 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 3 0 days in which to remove a Case to federal court is imperative. “Otherwise, later served 36a Court of Appeals Opinion~ 3/12/99 defendants will either have to forego removal or join 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. As a matter of policy, we find ourselves in agreement with the Fourth Circuit’s analysis. 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 service to remove a case to federal district court, with the consent of the remaining defendants. III. 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 preceding section of this opinion, the second paragraph of § 1446(b) provides an additional one-year time limit on removal: 37a ee a OM oe ee Se eh a I ad Court of Appeals Opinion - 3/12/99 If the case stated by the initial pleading is not removable, a notice of removal may be flied 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 the 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). As framed by the court in Ritchey, the question is basically whether the exception 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 38a Court of Appeals Opinion - 3/12/99 construed strictly because removal jurisdiction encroaches on 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 1 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- 17(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 removable and, therefore, that Ellison’s petition for removal was not untimely.’ 3 In support of his argument that the one-year limitation ppo g y applies to all diversity actions, Brierly cites the Supreme Court’s recent opinion in Caterpillar Inc. v. Lewis, in which the Court commented that “[n]o case; however, may be removed from state to federal court based on diversity of citizenship ‘more than 1 year 39a Court of Appeals Opinion - 3/12/99 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 i liability of such employer to the employee, his legal representative, husband or wife, parents, 3 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... . Ky.Rev.Stat.Ann.§ 342.690(1) (Michie 1997). The plaintiff, however, argues that this case falls within th- “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. | after commencement of the action.’” 519 U.S. Si, , 4173. co. ) 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. See519U.S. at ___; 467 S. Ct. at 472-73. 40a ) ; . Court of Appeals Opinion - 3/12/99 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 had provided no safety devices on t he 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’ Compensation Act. The defendants took many precautions, albeit clearly not enough, and placed Brierly farthest 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 unreliable 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 4la Court of Appeals Opinion - 3/12/99 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: The exemption from liability given an employer by this section shall also extend to such employer’s .. . employees. . . provided the exemption from liabilities 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. 42a Court of Appeals Opinion - 3/12/99 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. 43a . APPENDIX E UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY FRANKFORT [Filed September 4, 1997] No. 95-103 ; JEFFREY D. BRIERLY, ADMINISTRATOR of the ESTATE of PAUL BRIERLY., Deceased | Plaintiff V. ALUSUISSE FLEXIBLE PACKAGING, INC., ET AL., Defendants. ee er ee ee er ee a ee a Ne ee JUDGMENT — In accordance with the Memorandum Opinion and Order of even date and entered contemporaneously herewith, IT IS HEREBY ORDERED: (1) That this action be, and the same hereby is, 44a DISMISSED WITH PREJUDICE and STRICKEN FROM THE ACTIVE DOCKET; (2) That all pending motions be, and the same hereby are, DENIED AS MOOT; (3) That all scheduled proceedings be, and the same hereby are, CONTINUED GENERALLY; (4) That this Order is FINAL AND APPEALABLE and THERE IS NO JUST CAUSE FOR DELAY. This the 4th day of September, 1997. /s/ JOSEPH M. HOOD, JUDGE Date of Entry and Service: 9-4-97 45a APPENDIX F UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY FRANKFORT [Filed September 4, 1997] No. 95-103 JEFFREY D. BRIERLY, ADMINISTRATOR of the ESTATE of PAUL BRIERLY, Deceased Plaintiff, ws ALUSUISSE FLEXIBLE PACKAGING, INC., ET AL., Defendants. at Ne Net Nee See ee? Nee ee Ne Ne Net Nee MEMORANDUM OPINION AND ORDER ERAN OFINION AND ORDER Defendants, David Ellison and Alusuisse Flexible Packaging, have moved the Court [Record Nos. 30 & 32] for judgment on the pleadings, or in the alternative, summary judgment. The plaintiff has responded [Record No. 44] with a motion to overrule the defendants’ motions, to which the defendants have replied [Record Nos. 46 & 47]. This matter is now ripe for decision. \ 46a District Court Memorandum Opinion & Order - 9/4/97 This is a wrongful death case brought by the estate of Paul Brierly. While working, Mr. Brierly was killed in an explosion at the Alusuisse Flexible Packaging, Inc., plant on August 30, 1993. Mr. Brierly’s estate has elected to forego his statutory right to Workers’ compensation benefits from Alusuisse and has filed suit. Alusuisse manufactures printed flexible structures used for packaging foods and pharmaceuticals. The structures contain ink labeling which is incorporated into the material as it passes through various printing presses. Ink and adhesive buildup on the printing press components are removed by disassembling the components and running them through a large parts washing machine. The machine operates like a dishwasher but uses a solvent cleaning solution rather than soap and water. The solvents have low flash points and are highly flammable. Three days prior to the explosion, the main pump broke down on the parts washing machine. Apparently, there was a problem at the pump seal which allowed solvent leakage while the parts washing machine was operating. Junior Stone, the third-shift parts washer who was operating the machine, notified Alusuisse’s maintenance department and reported the problem to his supervisor, washroom lead man Don Busse. Later that same day, Busse was advised that maintenance was going to remove the pump on the following Monday. Pump removal poses a potential spark hazard. Thus, the following precautions were taken: (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 47a District Court Memorandum Opinion & Order - 9/4/97 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. Gary Wordlow, the maintenance supervisor, decided to use this occasion to also fix a broken latching mechanism on the lid to the parts washer housing unit which had broken several weeks earlier. A specially fabricated clamp had been used as a temporary repair for the latching device for several weeks prior to the pump removal. A more permanent welded repair, however, was necessary to ensure the continued safe operation of the parts washing machine. The disabling of the washer to repair the pump, along with the other safety precautions cited above, presented an opportunity to permanently fix the filter housing. Unlike the pump, the filter housing was not removable from the parts washing machine, and hence, welding of the filter housing had to be performed in the washroom itself. Before the welding occurred, the following additional safety measures were conducted: (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. Although the above precautions were taken, Alusuisse and its supervisory personnel were deficient in filling out the proper safety forms and making sure that all Safeguards were in fact performed before any welding occurred. 48a District Court Memorandum Opinion & Order - 9/4/97 Dave Ellison, Alusuisse’s corporate safety director, was also consulted about the safety of the welding operation and made two trips to the parts washing room on Monday in order to personally observe the scene. Ellison first went to the parts washing room at the request of Gary Wordlow who sought Ellison’s involvement because Ellison had been involved in two prior successful welding operations in the parts washing room. Ellison viewed the parts washing room a second time that Monday after Terry [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0257%3A1. Public record. Not legal advice.