Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Druivenga v. Hillshire Brands Co.

United States District Court, N.D. Iowa, Western Division

March 1, 2018

MARK DRUIVENGA, d/b/a CONTRACT WELDING & MECHANICAL, Third-Party Plaintiff,
v.
THE HILLSHIRE BRANDS CO., Third-Party Defendant.

          OPINION AND ORDER REGARDING THIRD-PARTY PLAINTIFF'S MOTION TO REMAND

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE.

         I. INTRODUCTION ........................................................................... 2

         A. Background .......................................................................... 2

         B. Arguments Of The Parties ........................................................ 5

         II. LEGAL ANALYSIS ........................................................................ 7

         A. General Standards .................................................................. 7

         B. Discussion .......................................................................... 11

         1. Removal by a third-party defendant .................................. 11

         2. The 30-day limitation .................................................... 14

         3. The one-year limitation ................................................. 15

         III. CONCLUSION ............................................................................ 18

         Did The Hillshire Brands Company timely remove this action, involving what was originally a third-party claim by Mark Druivenga, d/b/a Contract Welding & Mechanical, against Hillshire, in a state lawsuit originally filed against Druivenga by various insurers, as subrogees of Hillshire? The answer to that question turns on when this action commenced. Did this action commence with the filing of the insurers' original claims against Druivenga in state court, before Druivenga improvidently removed the insurers' case to federal court the first time? If so, then Hillshire's removal of Druivenga's third-party claim, filed after remand to state court, was untimely, as Druivenga contends, because it occurred more than one year after the action originally commenced in state court. On the other hand, did this action commence only with the filing of Druivenga's third-party claim against Hillshire after remand to state court? If so, the removal was timely, as Hillshire contends, because it was just two months after Druivenga filed his third-party claim against Hillshire in the reopened state court case and less than a month after the insurers dismissed their claims, which made the third-party claim removable.

         I. INTRODUCTION

         A. Background

         The parties agree that two relevant cases were filed in the Iowa District Court for Buena Vista County against either Mark Druivenga or his sole proprietorship, Contract Welding & Mechanical, (collectively and individually, Druivenga) in the aftermath of a fire on March 22, 2014, at Hillshire's turkey processing plant in Storm Lake, Iowa. Vincit Company, L.L.C., a janitorial company, filed the first case against Druivenga on September 17, 2015. On December 30, 2015, Druivenga removed Vincit's case to this federal court, on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1441. Vincit's case became No. C 15-4256-LTS in this court. A group of insurers, as subrogees of Hillshire, filed the second case against Druivenga on December 30, 2015. On February 1, 2016, Druivenga removed the insurers' case to this federal court, also on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1441. The insurers' case became No. C 16-4009-LTS in this court. On May 12, 2016, the two federal cases were consolidated for all further proceedings, with No. C 15-4256-LTS as the lead case.

         On June 24, 2016, Druivenga, through his then-counsel, sought leave to file a third-party complaint against Hillshire, asserting a negligence claim. That motion was granted on June 28, 2016, and Druivenga's Third-Party Complaint was filed that same day. On August 3, 2016, Druivenga was granted leave to file a Pro Se Amended Third-Party Complaint against Hillshire, asserting claims of negligence, breach of contract, and defamation. On September 2, 2016, Hillshire filed a Motion To Dismiss the Pro se Amended Third-Party Complaint. On September 15, 2016, Druivenga, through new counsel, voluntarily dismissed his negligence claim against Hillshire, but resisted dismissal of his breach of contract and defamation claims. On April 13, 2017, Chief Judge Leonard T. Strand denied Hillshire's Motion To Dismiss as to Count 2 of the Pro Se Amended Third-Party Complaint, the breach of contract claim, but granted the Motion as to Count 3, the defamation claim. After denial of its Motion To Dismiss, Hillshire filed its Answer to the Third-Party Complaint on May 1, 2017.

         Shortly after filing its Answer, Hillshire filed a Motion For Summary Judgment on Druivenga's Third-Party Complaint on May 10, 2017. On September 29, 2017, Chief Judge Strand entered a Sua Sponte Notice And Request For Briefing, explaining that, in the course of preparing a written ruling on Hillshire's pending Motion For Summary Judgment, it had come to his attention that both consolidated cases might have been improperly removed to this court from state court, because of the “forum defendant rule” set out in 28 U.S.C. § 1441(b)(2), where Druivenga is a citizen of Iowa.[1] After considering the parties' briefing on the matter, Chief Judge Strand entered a Remand Order on October 11, 2017, based on his conclusion that this court lacked subject matter jurisdiction, because the cases had been improvidently removed contrary to the “forum defendant rule.” Therefore, he remanded both of the consolidated actions to the Iowa District Court for Buena Vista County, where they had originated.

         After remand, the insurers' case was reopened in the Iowa District Court for Buena Vista County, and Chief Judge Strand's Remand Order was filed in that case on October 13, 2017. On October 26, 2017, Druivenga sought leave to file a Third-Party Petition against Hillshire, because his claims against Hillshire had never been filed in the state court action. Druivenga's Motion For Leave To File Third-Party Petition was granted on November 6, 2017, and his Third-Party Petition was filed on November 7, 2017. In his Third-Party Petition, Druivenga asserts a claim of breach of contract against Hillshire. Hillshire filed its Answer to the Third-Party Petition on December 7, 2017, denying Druivenga's third-party claim. On December 14, 2017, the insurers filed a dismissal with prejudice of their claims against Druivenga. The parties agree that this dismissal left Druivenga's third-party claim against Hillshire as the only remaining claim in the state court case. Hillshire argues that the dismissal of the insurers' claims also made Druivenga's third-party claim “removable” on the basis of diversity of citizenship between Druivenga, an Iowa citizen, and Hillshire, a Maryland corporation with its principal place of business in Chicago, Illinois. Consequently, on January 9, 2018, Hillshire removed Druivenga's third-party action to this federal court.

         On February 2, 2018, Druivenga filed the Motion To Remand now before me, arguing that Hillshire's removal was untimely, because it was more than one year after commencement of this action. On February 16, 2018, Hillshire filed its Resistance. Druivenga filed a Reply on February 23, 2018.

         I do not find that oral arguments are likely to be of assistance in the disposition of Druivenga's Motion To Remand. Therefore, the Motion is fully submitted on the parties' written arguments and supporting materials.

         B. Arguments Of The Parties

         In his opening brief, Druivenga argues that Hillshire's removal of this action is untimely and has caused unnecessary delay. More specifically, he argues that 28 U.S.C. § 1446(c) bars removal more than one year after the lawsuit was originally filed, unless the plaintiff took some bad-faith action to prevent removal. He contends that this limitation applies whether or not the case was originally removable and regardless of any prior attempts at removal. Here, he argues that Hillshire's Notice of Removal, filed January 9, 2018, was filed over two years after the commencement of this action by the insurers in state court and that Hillshire has not alleged that he took any bad-faith actions to prevent removal. For example, he points out that he did not conceal the fact that he was claiming more than $75, 000 in damages. He contends that the fact that the insurers' claims were not settled until ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.