COLASANTI v. ALLSTATES COMPANIES

CHARLES R. SIMPSON III, CHIEF JUDGE.

This matter is before the Court on the motions of the Plaintiff, Michael Colasanti ("Colasanti"), to remand and to strike the Defendant's response to the motion to remand. For the reasons stated below, we will deny these motions by a separate order entered this date.

FACTS and PROCEDURAL HISTORY

On March 23, 2001, Colasanti filed a complaint in state court in Jefferson County, Kentucky against the Defendant alleging that its negligence caused him injury. On April, 11, 2001, Intervening Plaintiff, Liberty Mutual, filed a motion to file an Intervening Complaint with the Jefferson Circuit Court claiming subrogation rights in this action. After that motion was granted, the Defendant, Allstates Companies, Inc. ("Allstates"), removed the action to this court contending that we have jurisdiction based upon diversity of citizenship.

Colasanti has now filed this motion arguing that the case should be remanded to state court on the grounds that 28 U.S.C. § 1445(c) precludes the removal of actions arising under state workmen's compensation laws. Allstates filed a response brief with the Court within the required time, but, according to Colasanti's counsel, failed to provide them with a copy. Accordingly, Colasanti has filed a motion to strike Allstate's response to his motion to remand.

DISCUSSION

Motion to Strike

Colasanti's attorneys have filed affidavits claiming that they never received a copy of Allstates' response to the motion to remand. (Pl.'s Mot. Strike, Exs. 1-3.) Allstates' counsel's secretary, while stating that she uniformly sends copies of pleadings in accordance with the Certificate of Service, admits that she does not specifically recall sending this brief to Colasanti's counsel and concedes that she may not have done so. (Def.'s Resp. Mot. Strike, Ex. C.)

The Federal Rules of Civil Procedure require that Allstates' response "shall be served upon each of the parties." Fed.R.Civ.P. 5(a). They also require that the response be "filed with the court within a reasonable time after service . . . ." Fed.R.Civ.P. 5(d). Colasanti argues that Allstates failed to satisfy these requirements and that, therefore, we should proceed as if Allstates never filed a response to the motion to remand. In support of this contention, Colasanti cites numerous cases in which courts have refused to give effect to various pleadings and motions filed late or not served upon opposing parties. However, none of these courts faced the same set of facts presented here.

In this case, the time period for Allstates' response was not jurisdictional and, in any event, was met by the filing with the Court. Allstates may have failed to effect service on the opposing counsel, but Colasanti may not claim that it has taken any action in reliance on Allstates' failure, as was true in many of the cases he cites. No action was taken in the week between Allstates' filing of its response and Colasanti's counsel's discovery that a response had been filed with the Court. Colasanti's only harm was that he was not notified of the fact that Allstates opposed the motion to remand and that he was not informed of the grounds for that opposition in order to respond adequately. As to the former, he should not have been surprised that Allstates opposed remanding a case it had removed. As to the latter, the harm could have been rectified by requesting a copy of the response from Allstates and an extension of time from this Court to respond to it. Colasanti has received a copy of the response and has attempted to respond to its merits. Therefore, we find that the remedy of striking the response from the record is unnecessary. Colasanti's motion will be denied by a separate order entered this date.

Motion to Remand

Colasanti moves to remand this case to state court on the grounds that § 1445(c) prohibits its removal in the first place. This statute provides, "A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States." § 1445(c). Colasanti's complaint, however, alleges only a cause of action against Allstates for negligence.

Colasanti argues that because one of Allstates' defenses may require this Court to interpret the meaning of sections of Kentucky's Workers' Compensation Act, this case falls within the prohibition of § 1445(c). There is no merit to this argument. His contention is analogous to arguing that a breach of contract claim "arises under" a state's statute of frauds because its interpretation may be required to decide the case. Colasanti's claim arises under Kentucky's negligence law, and it is likely that he will soon be arguing that the Workers' Compensation Act has no bearing on this case.

Colasanti presents a more colorable argument that this case falls within § 1445(c) because the Intervening Plaintiff, Liberty Mutual, derives its right to intervene from Ky. Rev. St. § 342.700, a statute within Kentucky's Worker's Compensation Act. However, this statute "does not create a new cause of action, but merely transfers the right of the recovery to the . . . insurance company." Whitney v. Louisville N.R. Co., 177 S.W.2d 139, 141 (Ky. 1944). Liberty Mutual's right is derivative, and "its intervention does not change the nature of the suit." Daugherty v. Reynolds Metals, Co., 967 F. Supp. 240, 242 (W.D.Ky. 1997). Colasanti's suit claims damages arising out of Allstates' negligence and does not implicate the Worker's Compensation Act or § 1445(c).

The motion to remand will be denied by a separate order.

ORDER

For the reasons set forth in the memorandum opinion entered this date and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the Plaintiff's motions to remand and to strike the Defendant's response to the motion to remand are DENIED.

IT IS SO ORDERED.