Bozeman v. International Paper Company et al

Filing 14

ORDER AND REASONS GRANTING 4 Emergency Motion to Remand to State Court as set forth in document. Signed by Judge Ivan L.R. Lemelle on 9/14/2016. (Attachments: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM GREGORY BOZEMAN

CIVIL ACTION

VERSUS

NO. 16-14606

WYETH HOLDINGS CORPORATION, ET AL.

SECTION “B”(5)

ORDER AND REASONS
Before the Court is William Gregory Bozeman’s (“Plaintiff” or
“Bozeman”) “Emergency Motion to Remand.” Rec. Doc. 4. Bozeman filed
the instant motion after Wyeth Holding Company, formerly known as
American Cyanamid Company (“Defendant” or “Cyanamid”), removed the
case from Civil District Court for the Parish of Orleans (“Orleans
Parish

CDC”)

on

the

eve

of

trial.

Rec.

Doc.

1.

Given

the

circumstances, this Court set an expedited briefing schedule. See
Rec. Doc. 7. Cyanamid timely filed a memorandum in opposition, and
this Court granted Bozeman leave to file a reply memorandum. Rec.
Docs. 8, 13.
This case arises out of Plaintiff’s alleged exposure to
asbestos

and

asbestos-containing

products,

which

purportedly

caused him to contract malignant mesothelioma. Rec. Doc. 1-1 at 2.
Bozeman, a citizen of Louisiana, worked for Arizona Chemical
Company, later known as International Paper Company, from 1975 to
1981 and 1981 to 1999. Id. During those years, he worked for
International Paper in Louisiana and was repeatedly exposed to
asbestos.

He

also

claims

that

1

he

was

exposed

to

asbestos

secondarily due to asbestos fibers brought home on the clothes and
person of his father, William H. Bozeman, from approximately 1956
to the late 1970s as a result of his father’s work at Arizona
Chemical Company. Id. Bozeman filed suit in Orleans Parish CDC on
October 29, 2015 against a number of defendants. Id. at 1.
On September 9, 2016, Cyanamid removed the case to this Court
on the basis of diversity jurisdiction just days before trial was
set to begin on September 12, 2016. Rec. Doc. 1. In its Notice of
Removal, Cyanamid asserts that “[a]s of August 12, 2016, plaintiff
had settled, voluntarily dismissed, or otherwise abandoned her
claims

against

Insulation

all

but

(“ANCO”),

four

(4)

Maryland

Louisiana
Casualty

defendants:

Insurance

ANCO

Company

(“Maryland Casualty”), Reilly Benton, and Taylor-Seidenbach, Inc.
(“Taylor”).” Id. at 4. Further, Defendant claims that, on August
12, 2016, the state court granted summary judgment in favor of
Maryland Casualty, Reilly Benton, and ANCO due to Plaintiff’s
failure to oppose the motions. Id. It is at that point that
Cyanamid

argues

the

case

became

removable

because

the

only

remaining non-diverse defendant, Taylor,1 was improperly joined.
Nevertheless,

Defendant

waited

almost

an

entire

month

before

removing the matter to federal court.

1

It is undisputed that both Plaintiff and Taylor are citizens of Louisiana.
2

Cyanamid maintains that Taylor was improperly joined because
“there exists ‘no reasonable basis for predicting’ that plaintiff
will recover against this purported defendant in state court.” Id.
at 4-5 (citing Gray v. Beverly Enterprises-Mississippi, Inc., 390
F.3d 400, 405 (5th Cir. 2004)). The United States Court of Appeals
for the Fifth Circuit recognizes 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., 385 F.3d 568, 573 (5th Cir. 2004) (quoting Travis v.
Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).

Defendant only

meaningfully argues for improper joinder under the second test.2
For Cyanamid to prove that Taylor was improperly joined in
this matter, there must be “no reasonable basis for the district
court to predict that the plaintiff might be able to recover
against [the] in-state defendant.” Smallwood, 385 F.3d at 573. In
determining whether a plaintiff has a reasonable basis of recovery
under state law, a court may resolve the issue in one of two ways.
First, the court may conduct a Rule 12(b)(6) analysis, looking
initially at the allegations of the complaint to determine whether
the complaint states a claim against the non-diverse defendant.

We acknowledge that Cyanamid mentions actual fraud in its response memorandum,
but it does so in only one sentence and fails to provide sufficient briefing
and allegations to merit consideration. See Bowman v. Slidell City, No. 132636, 2014 WL 3542118, at *4 n. 20 (E.D. La. July 17, 2014).
2

3

Id. It is generally held that if a plaintiff can survive a Rule
12(b)(6) challenge, there is no improper joinder. Id. Second, in
such cases where a plaintiff has stated a claim but has “misstated
or

omitted

discrete

appropriateness

of

facts”

joinder,

that

the

would

district

determine

court

may

the

use

its

discretion to “pierce the pleadings” and conduct a summary inquiry.
Id. at 574 (citing Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286
n.4 (5th Cir. 2000)). District courts have great discretion in
determining whether to pierce the pleadings, particularly where
there already exists ample record evidence relevant to the remand
issue. See Davidson, 819 F.3d at 766. In this matter, given that
discovery was complete and trial set to begin, we believe it would
be

an

abuse

of

discretion

not

to

pierce

the

pleadings

in

determining the appropriateness of joinder.
The burden on the party claiming improper joinder is a heavy
one, and Fifth Circuit precedent requires a defendant to “preclude”
the

possibility

of

recovery

with

“facts

that

can

be

easily

disproved if not true.” Davidson v. Georgia-Pacific, L.L.C., 819
F.3d 758, 765-66 (citing Smallwood, 385 F.3d at 573-74 n.12). In
other words, “the defendant must put forward evidence that would
negate a possibility of liability on the part of the nondiverse
defendant.” Id. at 767 (quoting Travis, 326 F.3d at 650) (internal
alterations omitted). When piercing the pleadings and considering
summary judgment-type evidence in the record, the court must
4

consider “all unchallenged factual allegations, including those
alleged in the complaint, in the light most favorable to the
plaintiff.” Travis, 326 F.3d at 649.
Defendant submits three pieces of evidence in an attempt to
negate the possibility of recovery against Taylor: the deposition
testimony of Plaintiff, the deposition testimony of three of his
co-workers, and Plaintiff’s Social Security Earnings Report. Rec.
Doc. 8 at 7. According to Cyanamid, this evidence shows that
Plaintiff and his co-workers had no knowledge of Taylor and that
Plaintiff never worked for Taylor. Id. Even assuming the evidence
does support such conclusions, it still does not negate the
possibility of Plaintiff’s recovery against Taylor.
Plaintiff

contends

that

Taylor

supplied

Cyanamid

and

International Paper facilities throughout Louisiana with asbestoscontaining insulation and other asbestos related products during
the relevant period in which Plaintiff and/or his father worked
for International Paper. Rec. Doc. 4-2 at 15. None of the evidence
submitted by Defendant precludes Plaintiff’s chance of recovery
based on these allegations.

The fact that Plaintiff and his co-

workers did not know the name of a potential supplier is not
convincing evidence as to whether that supplier actually provided
Plaintiff’s employer with asbestos-containing products at a time
and place where he was working with, and exposed to, such products.
See also Bourke v. Exxon Mobil Corporation, No. 15-5347, 2016 WL
5

836872, at *7 (E.D. La. Mar. 4, 2016). For the same reason,
Plaintiff’s Social Security Earnings Report is also unpersuasive.
Moreover,
Plaintiff

even

submits

though

the

affirmative

burden

here

evidence

to

is
the

on

Defendant,

contrary.

The

affidavit of Dwight Corcoran lends some support to Plaintiff’s
allegation that Taylor supplied asbestos-containing products to
Plaintiff’s employer during the relevant time period. Rec. Doc. 412 at 2-3.

While it is far from conclusive, it certainly raises

a material issue of fact as to Taylor’s liability. Consequently,
and considering all unchallenged factual allegations in the light
most favorable to the plaintiff, Cyanamid has failed to meet its
heavy burden of proving improper joinder.3 Accordingly,
IT IS ORDERED that the motion is GRANTED.
New Orleans, Louisiana, this 14th day of September, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

This Court acknowledges Defendant’s reliance upon Smith v. Union Carbide
Corp., No. 13-6323, 2013 WL 6244199 (E.D. La. Dec. 3, 2013), to show that
joinder was improper. While that case also dealt with the issue of improper
joinder and denied remand despite the presence of the same Corcoran affidavit,
we find it unpersuasive. The case at hand is factually distinguishable. The
plaintiff in Smith only worked at Cyanamid for four weeks during the time in
which Taylor purportedly supplied products to Cyanamid. Id. at 5. In this case,
however, it appears that Bozeman worked there for almost the entire decadeslong period discussed in the Corcoran affidavit. See Rec. Docs. 1-1; 4-13.
3

6