Masters v. Taylor Seidenbach, Inc. et al

Filing 8

ORDER AND REASONS granting #4 Emergency Motion to Remand to State Court for the reasons stated herein. This matter is REMANDED to the Civil District Court for the Parish of Orleans. Signed by Judge Sarah S. Vance on 11/18/2021. (mm) (Attachments: #1 Remand Letter) (mm).

Case 2:21-cv-02126-SSV-MBN Document 8 Filed 11/18/21 Page 1 of 10

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLARD MASTERS, III
VERSUS

CIVIL ACTION
NO. 21-2126

GRAYBAR ELECTRIC COMPANY,
INC., ET AL.

SECTION “R” (5)

ORDER AND REASONS
Before the Court is plaintiff Willard Masters III’s motion to remand. 1
After reviewing the notice of removal,2 the motion to remand, 3 and the
applicable law, the Court finds that it lacks jurisdiction over this case and
thus grants plaintiff’s motion to remand. Accordingly, the Court no longer
requires the parties to participate in the telephone status conference.
I.

BACKGROUND
This case arises out of plaintiff Willard Masters III’s alleged asbestos

exposure through his employment at Avondale Shipyards. 4 In July 2020,
plaintiff was diagnosed with asbestos-related mesothelioma.5 Plaintiff filed
a lawsuit in state court on April 30, 2021 to recover damages and personal

1
2
3
4
5

R. Doc. 4.
R. Doc. 1.
R. Doc. 4.
R. Doc. 1-2 ¶ 12.
Id. ¶ 18.

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injuries he sustained from his alleged exposure to asbestos from 1949 to
1978.6 He alleged claims for negligence under Louisiana law against a
number of defendants, including Graybar Electric Company, Inc.
(“Graybar”), and Taylor-Seidenbach, Inc. (“Taylor-Seidenbach”).7
Plaintiff is a citizen of Louisiana, as is defendant Taylor-Seidenbach. 8
Defendant Graybar is a New York corporation with its principal place of
business in Missouri. 9 At the close of a seven-day jury trial of the case,
Taylor-Seidenbach moved for a directed verdict.

Plaintiff opposed the

motion, and the motion was ultimately denied. Plaintiff and both defendants
made closing statements to the jury, and the jury began deliberations on
November 16, 2021. The next day, Graybar filed a notice of removal in this
Court. 10 The notice of removal asserts that plaintiff abandoned his claims
against Taylor-Seidenbach, the non-diverse defendant, during his closing
argument, and therefore this Court had diversity jurisdiction under 28 U.S.C.
§ 1332. 11 Plaintiff now moves to remand the case to state court. 12 Plaintiff

6
7
8
9
10
11
12

R. Doc. 1-2.
R. Docs. 1-2 (Original Complaint) & 1-4 (Second Supplemental
Complaint).
R. Doc. 1-2.
R. Doc. 1 ¶ 8.
R. Doc. 1.
Id. ¶ 11.
R. Doc. 4.
2

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argues that a remand is necessary because he never abandoned his claims
against Taylor-Seidenbach, and instead “Taylor Seidenbach is a party to the
case whose fault is currently being deliberated by the jury.” 13
The Court considers the parties’ arguments below.

II.

LEGAL STANDARD
A defendant may generally remove a civil action filed in state court if

the federal court has original jurisdiction over the action. See 28 U.S.C.
§ 1441(a). The “removing party bears the burden of establishing the facts
necessary to show that federal jurisdiction exists.” See Allen v. R & H Oil &
Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). For diversity jurisdiction to exist,
the amount in controversy must exceed $75,000, and there must be
complete diversity of citizenship between plaintiffs and defendants. See 28
U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373
(1978). In assessing whether removal is appropriate, the Court is guided by
the principle, grounded in the notion of comity, that removal statutes should
be strictly construed. See Manguno v. Prudential Prop. & Cas. Ins., 276 F.3d
720, 723 (5th Cir. 2002) (“Any ambiguities are construed against removal.”);
see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)

13

Id. at 1.
3

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(“Due regard for the rightful independence of state governments, which
should actuate federal courts, requires that they scrupulously confine their
own jurisdiction to the precise limits which the statute [on removal] has
defined.”).
To remove a case, a defendant must file a notice of removal within
thirty days of service on the defendant.

28 U.S.C. § 1446(a)-(b).

All

defendants who have been “properly joined and served” must either join in
or consent to the removal. 28 U.S.C. § 1446(b)(2)(A).

If a properly served

defendant fails to timely consent or join in removal, the notice is defective,
and the case must be remanded. Ortiz v. Young, 431 F. App’x 306, 307 (5th
Cir. 2011) (per curiam).
But in cases that are not initially removable, a defendant may, in some
circumstances, remove the case to federal court within thirty days of “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.”

28 U.S.C.

§ 1446(b)(3). Further, under the “judicially-created ‘voluntary-involuntary’
rule,” “an action nonremovable when commenced may become removable
thereafter only by the voluntary act of the plaintiff.”

Crockett v. R.J.

Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006) (quoting Weems v.
4

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Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967)). This rule permits
removal by virtue of “the voluntary (but not the involuntary) dismissal of
those defendants whose presence precluded removal.” Phillips v. Uinjax,
Inc., 625 F.2d 54, 56 (5th Cir. 1980). Plaintiff, by this “voluntary act” must
“definitely and clearly indicate[] his intention to abandon or discontinue the
action against a nondiverse defendant.” McLin v. Surgitex, Inc., No. 91-4116,
1992 WL 67801, at *2 (E.D. La. Mar. 25, 1992) (citing Aydell v. Sterns, 677
F. Supp. 877 (M.D. La. 1988)).
III. DISCUSSION
This suit was initially nonremovable because both plaintiff and one of
the defendants, Taylor-Seidenbach, are citizens of Louisiana, the state where
the action was brought.14 Defendant Graybar now argues that plaintiff
“explicitly abandoned and extinguished his claims against the last remaining
nondiverse defendant, Taylor-Seidenbach” at closing argument in the statecourt trial, thereby creating complete diversity. 15 Specifically, defendant
points to the following comment made by plaintiff’s counsel at closing
argument:
So jury interrogatories . . . are the questions that you guys have
to fill out[,] and we can make suggestions or recommendations
14
15

R. Doc. 1 at 3.
Id.
5

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to you[,] but ultimately you 12 make your own decision. And I’m
going to go through them right now [and] tell you what I suggest
you do based on what I think the evidence has shown[,] and Mr.
Kent will do the same thing. But you will ultimately have to
decide what you think it showed and what it actually is because
you’re going to answer these questions. So the first question [is]
“do you find by a preponderance of the evidence . . . that any or
all of the following defendants were negligent and that such
negligence was a substantial contributing factor in causing
[plaintiff’s] mesothelioma. [S]o for Graybar[,] yes. The next
defendant, Mr. Lightfoot’s defendant, Taylor [Seidenbach]. You
haven’t heard any evidence that Mr. Masters was working around
Taylor [Seidenbach.] I would check [no] for that one. 16
However, courts in this circuit have rejected abandonment arguments
in cases involving similar statements. See, e.g., Davis v. Veslan Enters., 765
F.2d 494, 489-99 (5th Cir. 1985) (holding that plaintiff’s statement in closing
argument that it “boggles [his] imagination” and is “inconceivable to [him]”
that the nondiverse defendant “didn’t apply his brakes on the night of the
accident” was not voluntary abandonment); Aynesworth v. Beech Aircraft
Corp., 604 F. Supp. 630, 636-67 (W.D. Tex. 1985) (finding no abandonment
when plaintiff’s counsel “admitted that he saw no basis under the evidence
for returning a verdict against the Texas defendants”); Derouen v. Anco
Insulations, Inc., No. 21-215, 2021 WL 4450238, at *5 (M.D. La. Aug. 27,
2021), report and recommendation adopted sub nom. Derouen v. Brake
Parts Inc., LLC, No. 21-215, 2021 WL 4444721 (M.D. La. Sept. 28, 2021)

16

R. Doc. 1-5 at 43:8-25 (Plaintiff’s Counsel Closing Statement).
6

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(finding no abandonment where plaintiffs’ “proposed jury instructions and
interrogatories” effectively “dropped the [nondiverse] defendants”).
Although some courts have found voluntary abandonment based on
plaintiff’s statements at closing argument, such cases are both factually
distinct and non-binding on this Court. In Heniford v. American Motors
Sales Corp., 471 F. Supp. 328 (D.S.C. 1979), plaintiff’s counsel told the jury
in closing argument: “[D]on’t give a verdict against Ralph [the nondiverse
defendant.] We’re not actually suing Ralph because we’ve found out now . . .
that Ralph was telling the truth.” Id. at 332. The Heniford court held that,
based on these statements, plaintiff had expressly dismissed the nondiverse
defendant, and the case was therefore removable to federal court, despite
that no formal order of dismissal had been entered. Id. at 333.
But Heniford is neither binding nor persuasive in this case. As an
initial matter, the Fifth Circuit has never explicitly adopted the reasoning in
the Heniford opinion. See Davis v. Veslan Enters., 765 F.2d 494, 489 (5th
Cir. 1985) (noting that “[e]ven assuming the persuasive value of the Heniford
opinion—a question this Court need not reach here—plaintiff[’s] arguments
to the jury plainly failed to create the abandonment of claims against the
[non-diverse] defendants”). And even if the Fifth Circuit had found Heniford
persuasive, this case is distinguishable. Unlike in Heniford, plaintiff never
7

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states that he “absolutely did not want the jury to return a verdict against the
[nondiverse] defendants.”

See Aynesworth, 604 F. Supp. at 636-67

(distinguishing the case from Heniford because although plaintiff presented
“most of the evidence” against the diverse defendant that “does not amount
to a voluntary dismissal”).

Instead, plaintiff’s counsel in his closing

statement said that it is his recommendation, based on the evidence, that the
jury find that Taylor-Seidenbach was not negligent in the case. Plaintiff goes
out of his way to emphasize several times that this is just his suggestion, and
that it is ultimately the jury’s decision. Counsel’s recommendations are just
that—recommendations—which this Court does not construe as a binding
intention to discontinue a claim against Taylor-Seidenbach. Instead, given
that Taylor-Seidenbach remains on the jury verdict form as a defendant that
jurors could find liable, the Court does not to conclude that counsel’s
statements amount to an express abandonment of his claim. Moreover, the
argument that plaintiff voluntary dismissed Taylor-Seidenbach is further
undermined by plaintiff’s opposition to Taylor-Seidenbach’s motion for a
directed verdict.17
Additionally, there is no indication that defendant Taylor-Seidenbach
believed that plaintiff had abandoned his claims against it during closing

17

R. Doc. 4-3 at 3:7-32.
8

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arguments. Instead, even after plaintiff’s closing argument, counsel for
Taylor-Seidenbach gave a closing argument to the jury, and actively
participated in the conclusion of the case. 18 See Davis, 765 F.2d at 499
(noting that the nondiverse defendants “did not draw solace from the alleged
abandonment of claims against them” and instead “continued to attempt to
reach a settlement with [plaintiff]”).
Although plaintiff may have focused his closing statement on Graybar’s
liability, he did not expressly abandon his claims against the remaining
Louisiana defendant. Indeed, the Court’s review of the caselaw reveals no
case that found abandonment on a record like this one. Based on the lack of
caselaw and the well-established principle that “[a]ny ambiguities are
construed against removal,” Manguno, 276 F.3d at 723, the Court finds that
defendant has not shown a voluntary, express, and clearly stated intent by
plaintiffs to abandon its claims against Taylor-Seidenbach. Accordingly, this
case must be remanded for lack of diversity jurisdiction. 28 U.S.C. § 1447(c).

18

R. Doc. 1-5 at 68:26-69:24.
9

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IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion to

remand. This matter is REMANDED to the Civil District Court for the Parish
of Orleans.

18th
New Orleans, Louisiana, this _____ day of November, 2021.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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