United States District Court, N.D. West Virginia
JUSTIN J. JUSTICE, Plaintiff,
HALLIBURTON ENERGY SERVICES, INC. and DENNIS MAXWELL JONES, Defendants.
ORDER GRANTING MOTION TO REMAND
PRESTON BAILEY UNITED-STATES DISTRICT JUDGE
before this Court is plaintiff's Motion to Remand [Doc.
8], filed July 16, 2019. The motion has been fully briefed
and is now ripe for decision. Having reviewed the record and
considered the arguments of the parties, this Court concludes
that the plaintiff's motion to remand should be granted.
issue in this case is whether defendant Dennis Maxwell Jones
is a nominal defendant. If Jones is a nominal defendant, then
this case can continue in this Court. If Jones is not a
nominal defendant, then this case must be remanded to state
court because he is a citizen of the same state in which this
Court sits. See 28 U.S.C. § 1441(b)(2).
Jones, a West Virginia resident, is an employee of defendant
Halliburton Energy Services, Inc.
(“Halliburton”), a corporate resident of Texas
and Delaware. Plaintiff is a citizen of Ohio. During the
events at issue in this case, Jones was driving a
tractor-trailer as an employee of Halliburton, a fact that is
not disputed by either party. [Doc. 8-1 at 1; Doc. 9 at 9].
The allegations in the Complaint are that Jones was driving a
tractor-trailer and the back half of the trailer crossed the
center line, blocking the opposite lane of traffic. Plaintiff
was driving in the opposing lane. Plaintiff collided with the
trailer as he was driving around a turn. Plaintiff alleges he
suffered personal injuries, property damage, and other
damages. Plaintiff brought a four-count Complaint in West
Virginia state court with claims against Jones individually
for negligence, and against Halliburton for respondeat
superior, negligent entrustment/supervision, and
negligence [Doc. 1]. Halliburton then removed to this Court.
action is removed from state court, a federal district court
is required to first determine whether it has original
jurisdiction over the plaintiffs' claims. In this case,
all the parties are citizens of different states. However, if
a defendant is a citizen of the same state in which the
federal district court sits, then the case must be remanded
to state court. 28 U.S.C. § 1441(b)(2). However,
Halliburton argues Jones, a West Virginia resident, is only a
“nominal” defendant and therefore his state of
citizenship should be disregarded in the Court's
burden of demonstrating jurisdiction resides with ‘the
party seeking removal.'” Maryland Stadium Auth.
v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir.
2005) (citing Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994)). Because removal
jurisdiction raises significant federalism concerns, federal
courts are directed to construe removal statutes strictly.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100
(1941). If federal jurisdiction is doubtful, a remand to
state court is required. Maryland
Stadium, 407 F.3d at 260.
is a small exception to § 1441(b)(2), and that is the
nominal defendant exception that Halliburton invokes here.
The Fourth Circuit, after rejecting other district
courts' and circuits' tests for determining who can
be a nominal party, stated that “Nominal means simply a
party having no immediately apparent stake in the litigation
either prior or subsequent to the act of removal. In other
words, the key inquiry is whether the suit can be resolved
without affecting the non-consenting nominal defendant in any
reasonably foreseeable way.” Hartford Fire Ins. Co.
v. Harleysville Mut. Ins. Co., 736 F.3d 255, 260 (4th
Cir. 2013). Further, the Court held that determining if a
party is nominal “is a practical inquiry, focused on
the particular facts and circumstances of a case, which
district courts can be relied upon to apply with the same
sound judgment demonstrated in this action.”
Id. at 260-61. The reason the Fourth Circuit
embraced a case-by-case basis analysis is because any attempt
to categorize what parties could be nominal or not
“would only complicate and frustrate a trial
court's straightforward inquiry: whether the non-removing
party has an interest in the outcome of the case.”
Id. at 261.
argues that Jones is a nominal defendant because he has no
substantial stake in the litigation, has the same counsel as
Halliburton, and does not intend to exercise any control of
the decision-making in the case. Further, Halliburton argues
that since the accident occurred while Jones was in the
course of his employment and that plaintiff is bringing a
claim for respondeat superior against Halliburton,
that Jones has no stake in the litigation. Finally,
Halliburton states Jones is a nominal party because “it
is not likely that Jones will incur financial liability as a
result of the proceedings” and “Jones will be
indemnified by Halliburton for any settlement or judgment in
this matter.” [Doc. 9 at 8, 9].
argues that West Virginia law allows for both an agent and an
employer to both be liable for their actions independent of
each other. Plaintiff further contends Jones does have an
interest in the outcome of this case because there is a claim
against him in his individual capacity and because he can be
harmed by losing his employment, future employability, and
his CDL could possibly be affected. Finally, plaintiff argues
that Jones is not nominal because in his Answer to the
Complaint, he denied any liability [Doc. 5].
Court agrees with plaintiff that Jones is not a nominal
defendant. First, plaintiff alleges a claim of negligence
against Jones in his individual capacity separate from the
claim against Halliburton for Halliburton's own actions
and the actions of Jones as an agent of Halliburton. Jones
was the driver of the tractor-trailer and the person who was
the primary actor in the event. This greatly cuts against
Halliburton's argument. See Gilbert v. Dick's
Sporting Goods, Inc., 2016 WL 2593934, at *3 (E.D. Va.
May 4, 2016) (granting remand because the store employee who
was alleged to have caused injuries to a patron could be
liable and would need to remain in the case even if plaintiff
sued the store itself for respondeat superior).
it is clear that West Virginia law allows for an employee and
employer to both be held liable independently. See
Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 69, 281
S.E.2d 499, 502 (1981). In Musgrove, the Supreme
Court of Appeals of West Virginia held
the doctrine of respondeat superior does not relieve
the servant of his tort liability. This principle rests on
the fact that an agent or employee can be held personally
liable for his own torts against third parties and this
personal liability is independent of his agency or employee
relationship. This same rule is generally accepted elsewhere.
Id. at 69, 281 S.E.2d at 501.
Further hammering the point that both an agent and employer
can both be liable, the court held “the fact that they
were acting individually or as agents is irrelevant. If they
tortiously injured the plaintiff, they are liable. In effect,
the question of their capacity as agents or employees is
immaterial to the plaintiff's right to recover against
them personally.” Id. at 69, 281 S.E.2d at
502. Finally, the court also stated it in this way: “An
agent or employee can be held personally liable for his own
torts against third parties and this personal liability is
independent of his agency or employee relationship. Of
course, if he is acting within the scope of his employment,
then his principal or employer may also be held
liable.” Musgrove, 168 W.Va. 65, 281 S.E.2d
499, Syl. Pt. 3 (emphasis added). It is clear that West
Virginia law does not preclude individual liability just
because a respondeat superior claim was also
asserted in the same complaint. See, e.g.,
id. at 69, 281 S.E.2d at 502;
Barath v. Performance Trucking Co., 188 W.Va. 367,
370, 424 S.E.2d 602, 605 (1992) (“The fundamental rule
in West Virginia is that if it can be shown that an
individual is an agent and if he is acting within the scope
of his employment when he commits a tort, then the principal
is liable for the tort as well as the agent.”);
Choice Hotels Int'l, Inc. v. Fisher, 2014 WL
795046, at *4 (N.D. W.Va. Feb. 27, 2014) (Bailey, J.)
(“It follows that defendant Fisher's infringing
conduct may give rise to both his individual liability and
the liability of the corporate entity on whose behalf he was
acting.”). Therefore, since a claim could theoretically
be sustained against Jones individually even if a
respondeat superior claim is found against
Halliburton, then Jones has an interest in this litigation
because there is a chance he could be personally liable.
Plaintiff's argument that he is suing Jones for his
alleged negligence in driving the truck and suing Halliburton
for its alleged negligence in failing to arrange for a flag
car show very clearly how there are two different,
independent claims against Jones and Halliburton. [Doc. 8-1
and finally, the fact that Halliburton claims that it will
indemnify Jones does not mean Jones is nominal. Halliburton
states that it is “unlikely” that Jones could
incur financial liability from this case.
“Unlikely” is not good enough to survive a motion
to remand based on a nominal party argument. If there is any
chance Jones can be held liable, then he has an interest in
this case and is therefore not a nominal defendant. If every
defendant who came to court was a nominal party because there
is a chance they may not have to pay out of their own pocket,
then the federal courts would be overburdened and the state