Murphy et al v. Rohm and Haas Company et al

Filing 40

ORDER and REASONS denying 7 Motion to Remand to State Court, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 6/7/2016. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBIN MURPHY, ET AL.

CIVIL ACTION

VERSUS

NO. 15-5566

ALCATEL-LUCENT USA INC., ET AL.

SECTION "N" (5)

ORDER AND REASONS
Presently before the Court is the motion to remand (Rec. Doc. 7) filed by Plaintiff,
Carolyn Lanque Murphy ("Plaintiff"), individually and on behalf of her late husband, Robin
Murphy. As stated herein, IT IS ORDERED that the motion is DENIED.
BACKGROUND
In April 2012, Robin Murphy, a Louisiana citizen, filed a petition for damages in
state court premised upon his alleged occupational exposure to asbestos-containing materials, in the
mid-1960's and 1970's, while working as an electronic technician at Southern Bell Telephone and
as a carpenter helper for Roland Bourgeois.

Removing defendant, Rohm and Haas Company

("R&H") was not initially named as a defendant in Murphy’s suit. Supplier defendants Eagle, Inc.
(“Eagle”), the McCarty Corporation (“McCarty”), Reilly-Benton Company, Inc. (“Reilly-Benton”)
and Taylor-Seidenbach, Inc. (“Taylor-Seidenbach”) (collectively,"Non-Diverse Defendants"), all
Louisiana citizens, however, were named in the original petition as defendants. Murphy alleged that

the fault of each of the various defendants "contributed . . . to [his] exposure to asbestos and
subsequent contraction of mesothelioma.”1
Murphy was deposed over the course of three separate days in September and
October 2012. Thereafter, in the summer of 2014, he dismissed the Non-Diverse Defendants from
his lawsuit without prejudice. Following Murphy's death on August 14, 2014, Plaintiff, also a
Louisiana citizen, filed a supplemental and amending petition ("First Supplemental Petition") for
damages, on or about August 14, 2015, alleging that she is the surviving spouse of Robin Murphy
and that he had passed away as a consequence of his asbestos exposure.2 She asserted wrongful
death and survival claims against twenty-six (26) separate and diverse defendants, including
removing defendant, R&H, and re-named as defendants the Non-Diverse Defendants that her late
husband had previously dismissed without prejudice.3
Following its receipt of service of the First Supplemental Petition, in September
2015, R&H filed exceptions in state court, as well as a motion, and proposed order, to set the
exceptions for hearing. Six days later, on October 29, 2015, however, R&H removed the state court
suit to this Court.4 Plaintiff's motion to remand now before the Court, along with the parties' several
supporting and opposing memoranda, followed.
In seeking remand, Plaintiff contends that the proper joinder of the Non-Diverse
Defendants in this action precludes complete diversity of citizenship such that the matter must be
1

See Petition, Rec. Doc. 1-2, ¶4.

2

See "Plaintiff's First Supplement and Amending Petition for Damages", Rec. Doc.

3

Id.

4

See Notice of Removal, Rec. Doc. 1.

1-3.

2

remanded to state court. Plaintiff further urges, in the alternative, that R&H waived any right it had
to federal court removal by filing exceptions to Plaintiff's First Supplemental Petition, along with
a motion and proposed order to have the exceptions set for hearing, in state court. In opposition,
R&H argues that the Non-Diverse Defendants are not properly joined and, thus, their Louisiana
citizenship should not be considered.5 Given that, R&H maintains that diversity is complete, for
purposes of the subject matter jurisdiction provided by 28 U.S.C. §1332, such that Plaintiffs' request
for remand should be denied. R&H likewise disputes that it waived its right to federal court removal
by virtue of its pre-removal conduct in state court.
LAW AND ANALYSIS
The federal court subject matter jurisdiction provided by 28 U.S.C. §1332 is present
only when complete diversity of citizenship exists between the plaintiff(s) and all properly joined
defendants, and the amount in controversy exceeds $75,000. See 28 U.S.C. §1332. "When a
nondiverse party is properly joined as a defendant, no defendant may remove the case under 28
U.S.C. § 1332." Pitman v. Crane Co., Civil Action No. 13-83, 2013 WL 1403326 *1 (E.D. La. Apr.
5, 2013) (Vance, J.). Removal is available, however, if the removing defendant shows that the
nondiverse party was joined improperly. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 352 F.3d 220,
222 (5th Cir. 2003). Although the Court must remand a removed action to state court if, at any time
before final judgment, it appears that subject matter jurisdiction is lacking, the Court's jurisdiction
is fixed as of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc., 101 F.3d 448, 456
(5th Cir.1996).

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The Fifth Circuit now refers to “fraudulent joinder” as “improper joinder.” See, e.g.,
Melder v. Allstate Corp., 404 F.3d 328, 329 (5th Cir. 2005). Nevertheless, the term “fraudulent
joinder” is still frequently used.
3

“The burden of proving [improper] joinder is a heavy one” that is borne by the
removing party. Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983). Specifically, the
removing party must show either: “(1) actual fraud in the pleading of jurisdictional facts, or (2) the
inability of the plaintiff to establish a cause of action against the non-diverse party in state court.”
McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004) (citation omitted). The Fifth
Circuit has historically used different phrases in describing the standard for improper (fraudulent)
joinder. Whether using the phrase “no possibility of recovery” or “no reasonable basis for the
plaintiff to establish liability,” however, the essential standard has been the same. See Travis v. Irby,
326 F.3d 644, 647 (5th Cir. 2003). In Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
the Fifth Circuit explained and clarified the standard:
[T]he court determines whether the [plaintiff] has any possibility of
recovery against the party whose joinder is questioned. If there is a
arguably a reasonable basis for predicting that the state law might
impose liability on the facts involved, then there is no fraudulent
joinder. This possibility, however, must be reasonable, not merely
theoretical.
313 F.3d 305, 312 (5th Cir. 2002) (internal citation and quotations omitted). See also Campbell v.
Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) ("This means that there must be a reasonable
possibility of recovery, not merely a theoretical one.").
This determination may be made in one of two ways. "The court may conduct 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." Smallwood, 385 F.3d at
573. "Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder."
Id. In some cases, however, the plaintiff will have stated a claim but "misstated or omitted discrete
facts that would determine the propriety of joinder." Id. "In such cases, the district court may, in its
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discretion, pierce the pleadings and conduct a summary inquiry" to determine whether such facts
exist that preclude a plaintiff's recovery against non-diverse defendant. Id. at 573-74; see also
Campbell, 509 F.3d at 669 ("the court may 'pierce the pleadings' and consider summary
judgment-type evidence to determine whether the plaintiff has a basis in fact for the claim").
"Examples of such facts include 'the in-state doctor defendant did not treat the plaintiff patient, the
in-state pharmacist defendant did not fill a prescription for the plaintiff patient, a party's residence
was not as alleged, or any other fact that easily can be disproved if not true.'" See Landry v.
Columbia Cas. Co., Civil Action No. 14-220, 2014 WL 4674797, *2 (E.D. La. Sept. 18, 2014)
(Milazzo, J.) (quoting Smallwood, 385 F.3d at 573, n. 12)).
While the Court is permitted to “pierce the pleadings and consider summary
judgment-type evidence in the record" in making this determination, it "must also take into account
all unchallenged factual allegations, including those alleged in the complaint, in the light most
favorable to the plaintiff." McKee, 358 F.3d at 334 (citing Travis, 326 F.3d at 648-49.) Thus,
"although 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, 358 F.3d at 334. Further, any contested issues of fact and any
ambiguities of state law must be resolved in the plaintiff's favor. Id. Finally, the 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. at 334-36 ("KCS had not shown
[applicable] law precluded all of McKee's claims . . . but only that McKee had yet to develop her
claims to the extent that . . . she would be able to prevail . . . .); see also Travis, 326 F.3d at 650-51
(simply pointing to the plaintiff's lack of evidence at stage of the case where discovery was ongoing

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was insufficient to show that there was no possibility for the plaintiff to establish liability at trial);
Davidson v. Georgia Pacific, L.L.C., Civil Action No. 12-1463, 2013 WL 1768015, *5 (W.D. La.
Apr. 24, 2013) (Stagg, J.) (in-state defendants improperly joined where parties had completed eleven
months of discovery in prior, nearly identical, state court suit but evidence remained insufficient to
"move plaintiffs possibility of recovery out of the theoretical realm").
Referencing the foregoing legal principles, R&H argues Plaintiff lacks the requisite
reasonable, rather than merely theoretical, possibility of recovery against the Non-Diverse
Defendants and, thus, has improperly joined them. To support this assertion, R&H asserts that
"Murphy never identified any of the four non-diverse Defendants, much less implicated them in his
purported asbestos exposure" at any "time during his deposition testimony," which was given over
the course of 3 separate days, consisted of more than 500 pages of testimony, and commenced with
Murphy's counsel "directing the first 200 pages of that testimony."6 R&H also relies on Murphy's
subsequent dismissal without prejudice of the Non-Diverse Defendants, arguing that "Robin
Murphy, himself, found it appropriate to dismiss" them.7
Disagreeing with R&H's position, Plaintiff maintains that "a closer review of
decedent's deposition shows that he did work with asbestos-containing materials that Plaintiff
contends were supplied by at least one of the Non-Diverse Defendants" – McCarty Corporation.8
Specifically, Plaintiff points to Murphy's deposition reference to roofers' use of Johns-Manville

6

See Rec. Doc. 16, pp. 11 and 12.

7

See Rec. Doc. 28, p. 7.

8

See Rec. Doc. 26, p. 5.
6

shingles during the course of his employment,9 and additionally asserts that McCarty "distributed
products that were manufactured by Johns-Manville in the Baton Rouge and New Orleans area
through the late 1970's" and "[i]n the mid-1950's became the exclusive distributor" in the area.10
With respect to Murphy's work for Southern Bell Telephone from the mid-1960's to the mid-1990's,
Plaintiff references provisions of "Bell System Practices" (unauthenticated) documentation
purportedly approving Johns-Manville ceramic fiber for cable hole sheathing, and requiring use of
Johns-Manville asbestos composition panels. Based on that documentation, and the assertion that
"McCarty was the exclusive distributor of Johns-Mansville products" in the area at that time,
Plaintiff argues that "Mr. Murphy or Southern Bell Telephone most likely obtained Johns-Manville
products from McCarty."11 Plaintiff additionally rejects the notion that Murphy's prior dismissal of
the four Non-Diverse Defendants should be given any weight, asserting that they were re-named
following "further investigation by her new counsel."12
Having carefully considered all of the parties' submissions and applicable legal
principles, the Court is not satisfied, on the showing made, that a factual link sufficient to render
Plaintiff's chances of recovery against McCarty reasonable, rather than merely theoretical, exists
between McCarty and Murphy's alleged asbestos exposure. In reaching this conclusion, the Court
notes, as do R&H and Defendant Rockwell Automation, Inc., in their memoranda, that the
deposition testimony on which Plaintiff relies does not explain the parameters of McCarty's

9

Id. at p. 5.

10

Id. at pp. 5 and 6.

11

Id. at p. 6.

12

Id. at p. 4.
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"exclusive distributorship program," or that McCarty was the only distributor in the area of JohnsManville's many different products.13 Furthermore, the supplemental excerpt of James Godwin's
deposition testimony provided by Rockwell indicates that McCarty distributed only insulation
products from Johns-Manville during the pertinent time.14 Specifically, Mr. Godwin states: "We
handled only the insulation line, basically the Thermobestos products trade name, pipe covering, and
blocks."15 Thus, on the showing made, there is insufficient evidence linking McCarty with the
roofing and wire products utilized at Murphy's worksites.
Lastly, the Court additionally notes that this matter is not one in which Plaintiff has
had little opportunity to conduct discovery that might provide the necessary evidentiary support for
her claims against the Non-Diverse Defendants. To the contrary, Murphy dismissed the NonDiverse Defendants more than a year and a half after his deposition and more than two years after
the filing of his suit. Additionally, despite Plaintiff's new counsel's "further investigation"
purportedly warranting the Non-Diverse Defendants being re-named as defendants, in 2015, the First
Supplemental Petition alleges no new facts supporting their liability. Finally, neither of Plaintiff's
supporting memoranda includes a recitation of intended future discovery likely to yield pertinent
probative evidence. Nor has Plaintiff sought to further supplement her prior submissions, during
the time that her motion to remand has been pending, relative to the requisite link between McCarty
and the particular asbestos products utilized on Murphy's worksites. For these reasons, the Court
is not convinced that Plaintiff simply has not yet had a chance to "develop her claims" such that

13

See Rec. Docs. 28 and 30.

14

See Rec. Doc. 30, p. 2, and Rec. Doc. 30-1, pp. 2 of 3 and 3 of 3.

15

Id.
8

remand is warranted. Cf. Davidson, 2013 WL 1768015, *3-4 (noting eleven months of discovery
taken in prior case in denying remand).
The Court additionally rejects Plaintiff's contention that R&H waived its right of
removal simply by filing exceptions to the petitions, along with a motion and proposed order to have
the exceptions set for hearing, in state court. In general, “[a] waiver of the right to remove must be
clear and unequivocal.” Furthermore, as explained in Bourdier v. Diamond M. Odeco Drilling, Inc.,
Civil Action No. 93-3667, 1994 WL 25526, *1 (E.D. La. Jan. 24, 1994) (Duplantier, J.), "waiver of
the right of removal is intended to preclude a defendant from ‘experimenting' with a case in state
court prior to removing it to federal court, where the defendant then has a second opportunity at
re-litigating any adverse decisions of the state court." Id. "Generally, however, the filing in state
court of a pleading which asserts defenses, without further action on the part of the defendant
resulting in a decision on the merits of such defenses, does not constitute a waiver of removal." Id.
Under the present circumstances, the Court cannot agree that the mere addition of a request for a
hearing date for exceptions qualifies as prohibited pre-removal "testing of [state court] waters."

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CONCLUSION
For the foregoing reasons, the Court, on the showing made, finds the Non-Diverse
Defendants to have been improperly joined such that their Louisiana citizenship should not be
considered for purposes of establishing subject matter jurisdiction under 28 U.S.C. §1332.
Accordingly, because the other defendants are diverse from Plaintiff in citizenship, Plaintiff's motion
to remand is denied.
New Orleans, Louisiana, this 7th day of June 2016.

__________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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