James Hendricks et al v. Armstrong International Inc. et al

Filing 35

ORDER GRANTING MOTION TO REMAND 22 by Judge Dean D. Pregerson: cc: order, docket, remand letter to Los Angeles Superior Court, BC547571. MD JS-6. Case Terminated. (lc). Modified on 2/10/2015 .(lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JAMES HENDRICKS, JR., and
ROBERTA HENDRICKS,

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Plaintiffs,
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v.
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ARMSTRONG INTERNATIONAL,
INC., et al.,

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Defendants.
___________________________

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Case No. CV 14-09360 DDP (MANx)
ORDER GRANTING MOTION TO REMAND
[Dkt. No. 22.]

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Presently before the Court is Plaintiffs’ Motion for Remand.

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Having heard oral arguments and considered the parties’

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submissions, the Court adopts the following order.

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I.

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BACKGROUND
Plaintiff James Hendricks suffers from mesothelioma, a type of

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cancer associated with asbestos exposure.

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A (Dkt. No. 22-3)(State Complaint), ¶ 16.)

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either manufacturers of asbestos products or owners of premises

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where such products were stored, handled, or installed.

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10.)

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///

(Decl. Sean Worley, Ex.
Defendants are all

(Id. at ¶

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Plaintiff James Hendricks, Jr. and his father were both

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employed by State Defendant SoCal Edison (“Edison”).

(Decl. Marc

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Brainich, Ex. D at 9:18-19; Worley Decl., Ex. E.)

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court proceedings, Edison argued that state workers’ compensation

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law prevented a claim based on any contact with asbestos fibers

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both during his own time of employment. (Decl. Marc Brainich, Ex. D

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at 9-10.)

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fibers that were carried home on his father’s clothes from Edison’s

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power plant when Mr. Hendricks, Jr. was a child.

In the state

Plaintiffs also alleged liability based on exposure to

(Worley Decl.,

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Ex. E.)

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focusing primarily on the latter (“secondary”) exposure theory.

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(Decl. Marc Brainich, Ex. E.)

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The state court granted summary judgment to Edison,

Once Edison was no longer a party, Defendant General Electric

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(“GE”) removed the case to the federal district court, alleging

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that diversity existed because Edison was a sham defendant,

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fraudulently joined to the state action.

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15.)

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Edison was not a sham defendant and that Plaintiffs brought a

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legitimate claim against Edison, even if it was unsuccessful in the

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state court.

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was improper because GE failed to obtain the consent of two other

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Defendants, Crown Cork and Soco-West.

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at 9.)

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II. Legal Standard

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(Notice of Removal, ¶

Plaintiffs now bring this motion for remand, arguing that

(Mot. Remand.)

Plaintiffs also argues that removal

(Mem. P. & A. ISO Mot Remand

A defendant may remove a case from state court to federal

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court if the case could have originally been filed in federal

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court. 28 U.S.C. § 1441(a); see also Snow v. Ford Motor Co., 561

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F.2d 787, 789 (9th Cir. 1977).

As the removing party, Defendant
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bears the burden of proving federal jurisdiction. Duncan v.

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Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996); see also Matheson v.

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Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir.

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2003).

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jurisdiction, and federal jurisdiction must be rejected if any

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doubt exists as to the propriety of removal.

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980 F.2d 564, 566 (9th Cir. 1992) (explaining that courts resolve

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doubts as to removability in favor of remand).

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of federal removal jurisdiction on the basis of diversity” is that

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“it is determined (and must exist) as of the time the complaint is

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filed and removal is effected.”

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Ass'n. of Am., 300 F.3d 1129, 1131 (9th Cir. 2002).

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III. DISCUSSION

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A.

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The removal statute is strictly construed against removal

Gaus v. Miles, Inc.,

The “core principle

Strotek Corp. v. Air Transp.

Alleged Fraudulent Joinder of Edison
“Fraudulent joinder is a term of art. If the plaintiff fails

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to state a cause of action against a resident defendant, and the

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failure is obvious according to the settled rules of the state, the

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joinder of the resident defendant is fraudulent.”

McCabe v. Gen.

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Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).

To find

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fraudulent joinder, it must be clear at the time the complaint is

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filed that “the individuals joined in the action cannot be liable

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on any theory.”

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(9th Cir. 1998).

Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318

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In this case, the state court granted summary judgment to

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Edison because it was obliged to follow Campbell v. Ford Motor Co.,

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206 Cal. App. 4th 15 (2012).

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situation, that Ford’s legal duty could not extend to the family

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members of contractors working at its plants.

Campbell held, in a similar

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Id. at 31-32.

This

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holding appears to have been largely based on policy

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considerations.

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necessary to prevent “otherwise potentially infinite liability” and

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stated that “the consequences of a negligent act must [sometimes]

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be limited to avoid an intolerable burden on society,” even where

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the risk was foreseeable.

The Court reasoned that the limit on duty was

Id.

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Plaintiff argued in state court that Campbell should be

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limited to the case of contractors and not applied to family

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members of actual employees.

The superior court, however, felt

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itself bound by another case, Haver v. BNSF Ry. Co., decided on the

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same day that Plaintiffs filed their original complaint.

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App. 4th 1104 (June 3, 2014), review granted and opinion superseded

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sub nom. Haver v. BNSF R. Co., 331 P.3d 179 (Cal. Aug. 20, 2014).

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In Haver, the plaintiff made precisely the same argument – that

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Campbell should be construed narrowly to apply only to contractors,

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and not to employees.

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argument because the Campbell opinion used the term “workers”

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rather than “contractors,” and because in a footnote the Campbell

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court said that its analysis did not “turn on” the distinction

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between employee and contractor.

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court rejected Plaintiffs’ attempt to distinguish between employees

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and contractors.

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Id.

226 Cal.

The court of appeals rejected that

Id.

Citing Haver, the superior

The superior court’s duty, of course, was to decide a motion

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for summary judgment given the law available to it at the time.

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This Court, on the other hand, must decide a more limited and more

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difficult question: whether it was “obvious” under settled

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California law, at the time the state complaint was filed, that

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there could be no liability on Edison’s part.
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As to the interpretation of Campbell that Plaintiffs

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proffered, although it was ultimately unsuccessful in the state

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court proceedings, the Court does not find that it was obvious

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under settled state law that Plaintiffs could not succeed.

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term “workers” in the Campbell opinion is not so unambiguous that

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it admits of no distinctions between employees and contractors.

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Moreover, the central thrust of Campbell is that in premises

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liability cases there is a wide world of potentially foreseeable

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plaintiffs, expanding ever-outward in circles of ever more

The

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attenuated responsibility, and that for public policy reasons a

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line must be drawn somewhere as to actual liability.

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of the footnote cited by the Haver court and the superior court in

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this case makes plain that the more layers of hiring and employment

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stand between the defendant and the plaintiff, the weaker the

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argument for legal duty becomes:

The full text

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Although our analysis does not turn on this distinction, we

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note that in this case, the relationship between Ford's

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conduct and the injury Honer suffered is even more attenuated

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inasmuch as Ford hired a general contractor to perform the

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work, that general contractor hired a subcontractor, that

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subcontractor hired another subcontractor, and that

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subcontractor employed Honer's father and brother.

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Campbell, 206 Cal. App. 4th at 31, n.6 (emphasis added).

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reasonable court could well have concluded that if the question

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were squarely presented, the Campbell court would have held that a

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family member with a less attenuated relationship to Ford could

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state a claim for premises liability.

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was a reasonable one, even if ultimately unsuccessful.
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Thus, Plaintiffs’ argument

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Nor can it be said that Haver had definitively answered the

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question at the time the complaint was filed.

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June 3, 2014 – the very same day that Plaintiffs’ state court

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complaint was filed.

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what hour each was filed – suffice it to say that Plaintiffs cannot

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possibly have been on notice as to the content of the Haver opinion

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being handed down, perhaps, at the very moment they were filing

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their complaint.1

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Haver was decided on

The Court declines to attempt to determine at

Additionally, even if California law had been settled and

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obvious at the time the complaint was filed, it was arguably a good

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deal less settled at the time of removal.

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California Supreme Court granted review as to two cases dealing

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with employer liability for secondary exposure to asbestos: Haver

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and a case called Kesner v. Superior Court, 226 Cal. App. 4th 251,

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review granted and opinion superseded sub nom. Kesner v. S.C.

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(Pneumo Abex LLC), 331 P.3d 179 (Cal. 2014).

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on this issue is thus still in flux, and was so on December 8,

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2014, when the Notice of Removal was filed.2

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On August 20, 2014, the

The state of the law

The Court finds that GE has not demonstrated that the law was
so obvious and settled at the time the complaint was filed and at

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“A defendant is not a fraudulently joined or sham defendant
simply because the facts and law may further develop in a way that”
ultimately precludes a claim. Padilla v. AT & T Corp., 697 F.
Supp. 2d 1156, 1159 (C.D. Cal. 2009)
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That the law is not yet firmly settled is unsurprising –
Campbell is a very recent case (2012) and appears to have been the
first one to deal with the question directly. Oddone v. Superior
Court, 179 Cal. App. 4th 813, 820 (2009) (noting that “[t]here
appears to be no reported California decision” regarding duty as to
secondary exposure, and resolving the case on other grounds).
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the time removal was effected that the joinder of Edison in the

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complaint was fraudulent.

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B.

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Federal Court

GE Did Not Seek Joinder of Other Defendants In Removing to

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Removal is also in doubt, according to Plaintiffs, because GE

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did not seek the joinder of Defendants Soco-West and Crown Cork in

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removing to federal court.

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GE argues that permission was not necessary, because Plaintiffs

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have abandoned their claims against these Defendants and the

(Mem. P. & A. ISO Mot. Remand at 9.)

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Defendants, in turn, are not active in the litigation.

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(Opp’n at

5-7.)

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“Although the usual rule is that all defendants in an action

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in a state court must join in a petition for removal, the ‘rule of

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unanimity’ does not apply to nominal, unknown or fraudulently

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joined parties[.]”

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F.3d 756, 762 (9th Cir. 2002).

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party is if his role in the law suit is that of a depositary or

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stakeholder . . . .”

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Printing Pressmen & Assistants' Local 349, Int'l Printing Pressmen

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& Assistants' Union of N. Am., 427 F.2d 325, 327 (5th Cir. 1970)

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(cited by the Ninth Circuit in Emrich v. Touche Ross & Co., 846

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F.2d 1190, 1193 n.1 (9th Cir. 1988)).

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United Computer Sys., Inc. v. AT & T Corp., 298
A “named defendant is a nominal

Tri-Cities Newspapers, Inc. v. Tri-Cities

GE does not argue that either Soco-West or Crown Cork was a

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“depositary or stakeholder,” nor that either Defendant was unknown

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or fraudulent.

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proposition, GE argues that it is not required to seek joinder as

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to defendants who are not participating in the litigation, or

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against whom Plaintiffs have “abandoned” their claims.

Instead, citing no direct authority for the

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GE does

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cite to a Ninth Circuit case from 1942, Southern Pac. Co. v.

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Haight, which states that “if a plaintiff voluntarily abandons the

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joint character of his proceedings,” it may change “the structure

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of the controversy as confines the inquiry to the citizenship of

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the parties.”

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See also Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74, 76

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(9th Cir. 1979) (discussing Haight in the context of destruction of

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diversity); Lemos v. Fencl, 828 F.2d 616, 619 (9th Cir. 1987)

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(same).

126 F.2d 900, 904 (9th Cir. 1942) (emphasis added).

GE does not point to any application of Haight as to the

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rule of unanimity.

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formal abandonment in court – the plaintiff there stated to the

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court that it chose to proceed against the non-diverse defendant

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without the fictitious “Does” who, it had been alleged, provided

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diversity.

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particular result where a Plaintiff has simply failed to vigorously

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prosecute its case against a known defendant.

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possibly be read to mean that the rule of unanimity does not apply

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where a defendant fails to adequately defend.

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Moreover, the “abandonment” in Haight was a

Id. at 902.

Thus, Haight does not necessarily compel a

And it cannot

Even assuming GE’s theory of the law is correct, however, the

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Court does not find that there are facts sufficient to support GE’s

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contentions.

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West.

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service filed with the state court on August 6, 2014 – five months

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prior to removal.

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5).)

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this case because Plaintiffs and Soco-West have not pursued

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discovery against one another.

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that Soco-West is not participating in the litigation, and it is,

GE argues, first, that Plaintiffs never served Soco-

(Opp’n at 17-18.)

However, Plaintiffs provide a proof of

(Second Decl. Sean Worley, Ex. D (Dkt. No. 30-

GE further argues that Soco-West is not an active party in

(Opp’n at 18.)

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GE may be correct

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perhaps, a close call whether Plaintiff has acted in a way that

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evidences an intent to abandon to the litigation against Soco-West.

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To the degree that this is a close call, however, the Court notes

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that doubt must be resolved against removal, Gaus, 980 F.2d at 566.

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In any event, things seem much clearer as to Crown Cork.

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Crown Cork has filed an answer in the case and propounded

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discovery, (Brainich Decl., Exs. L-N), and as recently as November

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19, 2014, Plaintiffs were responding to some, if not all, of Crown

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Cork’s discovery requests.

(Id., Ex. O.)

Even under GE’s theory

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of the law, the Court cannot conclude, on this record, that

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Plaintiffs have evidenced such a clear intent to abandon their

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claims against Crown Cork that unanimous joinder is not required.

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IV.

CONCLUSION

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Because joinder of SoCal Edison was not fraudulent, and

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because GE has not sought unanimous joinder of all remaining

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Defendants in its removal, the Motion to Remand is GRANTED.

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IT IS SO ORDERED.

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Dated: February 10, 2015
DEAN D. PREGERSON
United States District Judge

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