Smith et al v. Union Carbide Corporation et al

Filing 24

ORDER & REASONS denying 8 Motion to Remand to State Court. Signed by Judge Carl Barbier on 12/3/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SMITH

CIVIL ACTION

VERSUS

NO: 13-6323

UNION CARBIDE CORP., ET AL.

SECTION: "J" (5)

ORDER AND REASONS
Before the Court is Plaintiff Miriam P. Smith's Motion to
Remand (Rec. Doc. 8), Defendants Dow Chemical Co., Ethyl Corp.,
and Union Carbide Corp. (collectively, "Removal Defendants")'s
opposition (Rec. Doc. 17), and Plaintiff's reply (Rec. Doc. 22).
Plaintiff's motion, which was filed on November 8, 2013, is
before the Court on an expedited basis, on the briefs.

Having

considered the motions and memoranda of counsel, the record, and
the

applicable

law,

the

Court

finds

that

Plaintiff's

motion

should be DENIED for the reasons set forth more fully below.

FACTS AND PROCEDURAL HISTORY
This matter arises out of a state law tort suit wherein
Walter Hanson Smith, Jr. ("Mr. Smith") alleged that he developed
mesothelioma as a result of his exposure to asbestos in varying

locations across the Gulf Coast, including a few job sites in
Louisiana. Mr. Smith filed suit in Civil District Court for the
Parish of Orleans on November 2, 2012. Shortly after the suit
commenced, Mr. Smith passed away and his wife, Miriam P. Smith
("Mrs. Smith"), was substituted as Plaintiff. Mr. and Mrs. Smith
were both citizens of Alabama at the time of the filing of this
suit, and Mrs. Smith remains an Alabama citizen.
Four

of

the

original

defendants

in

this

matter

were

Louisiana citizens: Taylor-Seidenbach, Inc. ("Taylor"), Eagle,
Inc. ("Eagle"), McCarty Corp. ("McCarty"), and Maryland Casualty
Insurance Company ("Maryland"). Eagle and McCarty settled all
claims with Mrs. Smith and were dismissed from this case on
October 22, 2013. Maryland was dismissed from the suit on October
25, 2013 without any opposition from Mrs. Smith. Therefore, the
only remaining Louisiana defendant is Taylor. The only other
remaining defendants are the Removal Defendants, none of which
are Louisiana or Alabama citizens.
This matter was set for trial in state court on November 4,
2013; however, Defendants moved to continue the trial on October
30, 2013.1 On November 1, 2013 the Removal Defendants filed a
Notice of Removal in this Court. (Rec. Doc. 1). Mrs. Smith filed

1

Trial was reset for January 13, 2014, which is the reason for
expediting this motion.

the instant Motion to Remand on November 8, 2013, and requested
that the motion be expedited so that, in the event the motion was
granted, the parties could keep their January 13, 2014 trial date
in state court. The Court granted the motion to expedite, and the
Removal Defendants filed their opposition on November 19, 2013.

PARTIES' ARGUMENTS
Mrs.

Smith

contends

that

this

action

must

be

remanded

because she has shown a possibility of establishing a cause of
action against Taylor. Mrs. Smith relies heavily on the affidavit
of Dwight Cocoron wherein Mr. Cocoron affirms that he worked in
several worksites where asbestos was present and many worksites
where Taylor supplied asbestos materials. Mrs. Smith then points
out that Mr. Cocoron worked at many of the same sites as Mr.
Smith, and for that reason, she has enough evidence to state a
cause of action against Taylor. Additionally, Mrs. Smith points
out that Taylor clearly contemplated that it would remain in this
litigation because it recently attended and asked questions at a
deposition

on

October

22,

2013

and

filed

proposed

jury

instructions on October 29, 2013.
Alternatively, Mrs. Smith argues that Removal Defendants
waived their right to remove this action by delaying the filing
of their notice of removal and by engaging in litigation for ten

days after realizing that removal was appropriate. Mrs. Smith
asserts

that

this

removal

is

simply

a

jurisdictional

delay

tactic.
Removal

Defendants

argue

that,

though

this

action

was

previously un-removable under 28 U.S.C. § 1441(b)(2) (the "Forum
Defendant
Eagle,

Rule"),

McCarty,

it

and

became

removable

Maryland.

Removal

upon

the

dismissal

Defendants

argue

of

that

Taylor should be disregarded because it is improperly joined.
Removal Defendants urge the Court to

"pierce the pleadings" and

accept summary judgment-type evidence, arguing that if the Court
does so, it will be clear that there is no reasonable possibility
that Mrs. Smith will be able to recover from Taylor. Removal
Defendants argue that Mrs. Smith has no evidence that Mr. Smith
was exposed to Taylor's asbestos-containing products, nor can she
prove that Taylor was a substantial contributing factor to Mr.
Smith's mesothelioma diagnosis.
Finally, Removal Defendants argue that they did not waive
their right to remove this case by failing to file a notice of
removal "without delay" and by litigating this matter in state
court. They argue that under 28 U.S.C. § 1446(b)(3), they had
thirty

days

Defendants

to

file

assert

that

a

notice

of

removal.

Plaintiff's

argument

Further,
that

they

Removal
waived

removal is not recognized by the removal statute and is not

applicable in this situation.
LEGAL STANDARD & DISCUSSION
A. Timeliness of Removal/Waiver
Under the Forum Defendant Rule, "[a] civil action otherwise
removable solely on the basis of the jurisdiction under section
1332(a) of this title may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of
the State in which such action is brought." 28 U.S.C.A. § 1441
(West). Additionally, 28 U.S.C. § 1446 states that
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 one year after commencement of the
action.
28 U.S.C. 1446 (West). Further, the power to remove a previously
unremovable

action

has

been

curtailed

by

the

jurisprudential

“voluntary-involuntary” rule which "provides that a case that is
non-removable on its initial pleadings can only become removable
pursuant

to

a

voluntary

act

of

the

plaintiff."

Ratcliff

v.

Fibreboard Corp., 819 F. Supp. 584, 586 (W.D. Tex. 1992). A
plaintiff's decision to enter into a settlement is considered
voluntary, therefore the voluntary-involuntary rule does not bar
removal. Id. at 587.

Even when a aefendant timely files a notice of removal, he
"may nonetheless waive that right by taking substantial action in
state

court

indicating

an

intent

to

submit

the

case

to

the

jurisdiction of that court." Ortiz v. Brownsville Indep. Sch.
Dist., 257 F.Supp.2d 885, 889 (S.D. Tex. 2003). "Waiver will not
occur,

however,

unless

the

defendant's

intent

is

clear

and

unequivocal, which generally means that the right of removal is
not lost by action in the state court short of proceeding to an
adjudication on the merits.” Id. (internal citations omitted). In
situations

where

a

previously

un-removable

case

becomes

removable, whether waiver has occurred "turns on what actions the
defendant takes once the case becomes removable." Id. (previous
filing of a summary judgment motion was irrelevant; court found
that the filing of a motion to strike was not enough to find a
waiver of the right to remove); McKnight v. Ill. Cent. R.R., 967
F.Supp. 182, 186 (E.D. La. 1997). Examples of waiver include:
engaging in argument on a dispositive motion or engaging in
extensive discovery and substantial motion practice, including
the filing of cross claims. Brown v. Demco, Inc., 792 F.2d 478,
481 (5th Cir. June 18, 1986); Jacko v. Thorn Americas, Inc., 121
F.Supp.2d 574, 576 (E.D. Tex., Aug. 7, 2000).
Removal Defendants removed this action one day before the
one year deadline set forth in 28 U.S.C. § 1446, and they filed a

notice of removal within thirty days of learning that this action
was removable. Specifically, they filed their notice one week
after Maryland was dismissed from this action, leaving Taylor as
the only forum defendant who would prevent removal. Further, the
voluntary-involuntary
Smith

voluntarily

rule

does

dismissed

not

bar

Eagle

removal

and

because

McCarty

Mrs.

following

settlement and did not oppose the dismissal of Maryland. As such,
removal is proper unless Removal Defendants waived their right to
remove.
Mrs. Smith argues that Removal Defendants waived their right
to a federal forum by delaying the filing of their notice of
removal and engaging in a course of conduct that was inconsistent
with the intent to seek federal jurisdiction. Mrs. Smith points
to

the

facts

that

Removal

Defendants:

(1)

filed

motions

in

limine, (2) took depositions, and (3) filed a motion to continue
the state court trial without referencing their jurisdictional
arguments. To support her contention, Mrs. Smith relies on two
cases: Walker v. Am. Tel. & Tel. Co., 684 F. Supp. 475, 478 (S.D.
Tex. 1988) and Chicago Title & Trust Co. v. Whitney Stores, Inc.,
583 F. Supp. 575, 577 (N.D. Ill. 1984).
Walker

is

distinguishable

because

that

court

held

that

"[w]here a nondiverse defendant is voluntarily dismissed during
trial, the diverse defendant must give immediate notice of his

intent to remove." Walker, 684 F. Supp. at 478. Here, trial had
not yet commenced, thus this holding is inapposite. Chicago Title
is more on point. In that case, the court held that the defendant
either waived its right to remove or was estopped from removing
when it "sought and received a continuance without notifying [the
plaintiff] and the state court that it would act to remove the
case in the meantime." Chicago Title, 583 F. Supp. at

577.

Chicago Title, though persuasive and clearly applicable to this
set of facts, may not be relied upon because it is not in line
with Fifth Circuit precedent on the same issue. In the Fifth
Circuit, waiver only occurs where the removing party proceeds to
adjudication on the merits, and here, Removal Defendants did not
do so. Rather, they postponed adjudication on the merits so as to
make time to file their notice of removal. Therefore, Removal
Defendants' Notice of Removal was timely filed, and they did not
waive their right to remove.
B. Fraudulent Joinder of Taylor
There are two ways to establish improper joinder: (1) actual
fraud in the pleading of jurisdictional facts, or (2) inability
of the plaintiff to establish a cause of action against the
non-diverse party in state court. Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). The test for
improper joinder where there is no allegation of actual fraud is

whether

the

defendant

has

demonstrated

that

there

is

no

possibility of recovery by the plaintiff against an in-state
defendant. Id. A mere theoretical possibility of recovery is not
sufficient to preclude a finding of improper joinder.

Id.

A

court should ordinarily resolve the issue by conducting a Rule
12(b)(6)-type analysis, looking initially at the allegations of
the complaint to determine whether the complaint states a claim
under state law against the in-state defendant.

Id.

The party seeking removal bears a heavy burden of proving
improper joinder.

Id. at 574.

In determining the validity of an

allegation of improper joinder, the district court must construe
factual

allegations,

resolve

ambiguities

plaintiff’s favor.

resolve
in

the

contested
controlling

factual

issues,
law

state

and
the

in

Burden v. Gen. Dynamics Corp., 60 F.3d 213,

216 (5th Cir. 1995). The court may, in its discretion, pierce the
pleadings

and

conduct

a

summary

inquiry.

Id.

at

573-74.

"[A]lthough the type of inquiry into the evidence is similar to
the summary judgment inquiry, the district court is not to apply
a summary judgment standard but rather a standard closer to the
Rule 12(b)(6) standard." McKee v. Kansas City S. Ry. Co., 358
F.3d 329, 334 (5th Cir. 2004) "The district court must also take
into

account

the

'status

of

discovery'

and

consider

what

opportunity the plaintiff has had to develop its claims against

the non-diverse defendant." Id.
Mrs. Smith bases her claims against Taylor on three pieces
of evidence:
1. Dwight Cocoron's affidavit from prior, unrelated
litigation wherein: (a) he attests to the fact that he
worked for Taylor from 1969-1995; (b) he attests to the fact
that his work included asbestos work; and (c) he lists all
of the sites at which he worked as a Taylor employee from
1969 through 1995. (Mot. to Remand, Pl.'s Exh. A, Rec. Doc.
8-2)
2. Mr. Smith's employment history from 1963-1970, compiled
from his co-worker, Dennis Howell's, deposition. This
document shows that Mr. Smith worked with asbestos at
several job sites, including at American Cyanamid and at
several locations at which Cocoron worked. (Mot. to Remand,
Pl.'s Exh. D, Rec. Doc. 8-5)
3. Thomas Call's corporate deposition wherein he stated, on
behalf of American Cyanamid, that Taylor provided materials
for American Cyanamid periodically throughout the 1950s,
60s, and 70s, but was not able to provide exact dates. (Mot.
to Remand, Exh. K, Rec. Doc. 8-12).
Mrs. Smith argues that this evidence is enough to support a
reasonable probability that she has a cause of action against
Taylor because it proves (1) that Mr. Smith worked at American
Cyanamid at some point between 1963 and 1970, a time during which
Mr. Call affirms that Taylor was periodically providing supplies;
and (2) that, because Cocoron and Smith worked at some of the
same places, there could have been a period in 1969 during which
Taylor products were present at the sites where Mr. Smith worked.
Removal Defendants assert that this evidence is insufficient to
move Mrs. Smith's claims out of the realm of the theoretical and

into the realm of a reasonable chance of recovery.
The evidence that Mrs. Smith puts forth shows that Mr. Smith
might have worked at some of the same sites at the same time as
Cocoron, who was working as a Taylor employee. (Exh. A, Exh D)
The timing is tenuous, however, because Cocoron and Mr. Smith
could only have overlapped at those sites in 1969.2 It is further
true that Mr. Smith might have worked at American Cyanamid while
Taylor products were being used; however, this is again very
tenuous

because

intermittently

Mr.

supplied

Call

can

products

only
to

testify

American

that

Cyanamid

Taylor
over

a

three decade span, and Mrs. Smith only has evidence that Mr.
Smith worked there for four weeks during that entire time span.
(Mot. to Remand, Pl.'s Exh. D, Rec. Doc. 8-5) This type of
evidence

falls

squarely

within

the

holding

of

Thibodeaux

v.

Asbestos Corporation Limited, et al., 2007-0617 (La.App. 4 Cir.
2/20/08), 976 So.2d 859 (2008), in which the court affirmed the
grant of defendant's summary judgment where "the best evidence
that the [plaintiffs] were able to submit was a suggestion that
[defendant] may have supplied products which were used at Charity
Hospital at some point in time between 1959 and 1984." In light
of this holding, even taking all of Mrs. Smith's facts as true

2

Cocoron's affidavit swears to his work history from 1969-95, and Mr.
Smith's work history is detailed from 1963-1970.

and applying all inferences in her favor, it does not appear
reasonably possible that a state court would impose liability on
Taylor. This finding, combined with the facts that the parties
are at the final stages of discovery and that Mrs. Smith has
taken little action with regard to Taylor throughout the course
of litigation,3 persuades the Court that remand is inappropriate.

Accordingly,
Plaintiff's Motion to Remand (Rec. Doc. 8) is DENIED.
New Orleans, Louisiana, this 3rd day of December, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

3

Removal Defendants claim that Mrs. Smith did not propound any
discovery on Taylor and did not designate any witnesses to testify against or
exhibits related to Taylor despite the fact that the parties are "trial
ready."