Barlow v. John Crane-Houdaille, Inc. et al

Filing 144

MEMORANDUM. Signed by Judge William M Nickerson on 11/1/12. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOYCE BARLOW

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v.
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JOHN CRANE HOUDAILLE, INC., et al. *
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Civ. No. WMN-12-1780

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MEMORANDUM
Pending before the Court is a Motion for Remand, ECF No.
130, filed by Plaintiff, Joyce Barlow (Barlow).

Removing

Defendant, Colgate-Palmolive (Colgate), opposed Barlow’s Motion
and filed its own Motion for Judgment on the Pleadings.

ECF

Nos. 131 (Motion for Judgment) & 132 (Memorandum Opposing Remand
and in Support of Motion for Judgment).

The parties have fully

briefed both motions and they are ripe for review.

Upon

consideration of the facts, applicable law, and arguments
advanced by the parties, Barlow’s Motion for Remand will be
granted and the Court will not rule on Colgate’s Motion for
Judgment on the Pleadings.
I.

FACTUAL AND PROCEDURAL HISTORY
Barlow is a 73 year-old woman and a resident of Maryland.

In the spring of 2011 she was diagnosed with malignant
mesothelioma.

That August she filed suit in the Circuit Court

for Baltimore City.

Barlow used the Other Asbestos Cases Master

Complaint on file with the clerk of that court, ECF No. 2-6, and

by short form complaint, ECF No 2, stated claims for (1) strict
liability, (2) breach of warranty, (3) negligence, (4) fraud,
(5) conspiracy, and (6) market share liability, against 24
defendants, including four from Maryland.

In November, 2011,

Barlow amended her Complaint to add Colgate as a defendant.
No. 25.

ECF

Colgate is incorporated in Delaware and its principal

place of business is in New York.
In May 2012, Barlow responded to Defendants’ Joint
Interrogatories and identified only one source of possible
asbestos exposure: her regular use of Colgate’s Cashmere Bouquet
talcum powder (Cashmere).

Barlow was deposed on June 12, 2012.

There, she explicitly stated that she did not believe she was
exposed to asbestos in any way other than through her use of
Cashmere.
The following day, counsel for Colgate sent a letter to
Barlow’s counsel informing them of Colgate’s intent to remove
the case to federal court and inviting them “to supply the
evidence on which [Barlow] base[s] [her] claims against the
Maryland defendants.”

ECF No. 65.

Barlow’s counsel responded

without specifying any evidence against the Maryland defendants
and threatened to seek remand and sanctions if Colgate removed
the case.

ECF No. 66.

Colgate removed the case on June 15,

2012.

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In its Notice of Removal Colgate states that this Court has
jurisdiction over this matter because “the proper parties” are
completely diverse.

ECF No. 1, ¶¶ 8-9.

Colgate invokes the

doctrine of “fraudulent joinder” and suggests that because
Barlow has failed to identify any claim against any of the
Maryland defendants, and because her discovery responses
demonstrate that she does not intend to pursue any claims
against them, the Maryland defendants can be discounted for the
purpose of determining whether diversity jurisdiction exists.
Id. at ¶¶ 15-16.
Barlow filed the present motion on July 16, 2012.

In it,

she argues that remand is proper because Colgate has not shown
that she has no possibility of succeeding on her claims against
the in-state defendants.

Barlow also requested that she be

awarded fees pursuant to 28 U.S.C. § 1447(c).
II.

STANDARD OF REVIEW
The doctrine of fraudulent joinder is an exception to the

complete diversity rule normally required for a federal court to
exercise diversity jurisdiction.

Bendy v. C.B. Fleet Co., Civ.

No. CCB-10-3385, 2011 WL 1161733, *3 (D. Md. Mar. 28, 2011).
Defendants opposing remand, when removal was based on the
doctrine of fraudulent joinder, carry a very heavy burden.
Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999).

The

defendant must show either that (1) there has been outright

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fraud in the plaintiff’s pleading, or (2) “there is no
possibility that the plaintiff would be able to establish a
cause of action against the in-state defendant in state court.”
Id. (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232
(4th Cir. 1993)).1

In considering whether a party has been

fraudulently joined, the court is not confined to the
allegations of the complaint, but may consider the entire
record.

AIDS Counseling & Testing Ctrs. v. Group W Television,

Inc., 903 F.2d 1000, 1004 (4th Cir. 1990).
III. DISCUSSION
Colgate does not explicitly state which theory of
fraudulent joinder it is arguing.

It points to Barlow’s

interrogatory responses and her deposition testimony, ECF No.
137 at 13-17, and claims that the other defendants, particularly
the in-state defendants, are fraudulently joined because Barlow
has no evidence to support her claims against them.
1

Id. at 24.

Courts around the country have devoted considerable time and
energy to explaining that “no possibility” does actually mean,
no possibility. See e.g., Harley v. CSX Transp., Inc., 187 F.3d
422, 426 (4th Cir. 1999) (a plaintiff need only show “a slight
possibility of a right to relief” or that he or she has a
“glimmer of hope” of succeeding on claim); In re Maine Asbestos
Cases, 44 F. Supp. 2d 368 (D. Maine 1999) (court must be able to
say “to a legal certainty” plaintiff will be unsuccessful);
Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983)
(“The removing party must prove that there is absolutely no
possibility that the plaintiff will be able to establish a cause
of action against the in-state defendant in state court.”); see
also 13F Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3641.1 (3d ed. 2009)
(and cases cited therein).
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It appears to the Court that there are two possible
readings of Colgate’s argument.

First, it could be construed as

an allegation of actual fraud, which the record does not
support.

A more reasonable reading of Colgate’s position is

that it believes Barlow has “no real intention to get a joint
judgment” and therefore the joinder was fraudulent.

AIDS

Counseling 903 F.2d at 1003 (quoting Lewis v. Time, Inc., 83
F.R.D. 455, 460 (E.D. Cal. 1979)).

This Court, however, has

previously made clear that demonstrating that a plaintiff had no
real intention to get a joint judgment is simply a proxy
satisfying the no possibility of success standard for showing
fraudulent joinder.

See Riverdale Baptist Church v. Certainteed

Corp., 349 F. Supp. 2d 943, 947-48 (D. Md. 2004).

Moreover,

showing that a plaintiff did not intend to pursue a joint
judgment, by itself, is insufficient.

Willard v. United Parcel

Serv., 413 F. Supp. 2d 593, 599 (M.D.N.C. 2006) (“the Fourth
Circuit would seem to reject using a plaintiff's expressed
subjective intention alone as a ground for a finding of
fraudulent joinder”).

Rather, a defendant must show that “no

such intention existed and there is no colorable ground for
claiming that such an intention exists.”

Id. (emphasis in

original).
The heavy burden for proving fraudulent joinder works
against Colgate here.

Barlow argues that her joinder of the in-

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state defendants was not fraudulent because there remains a
possibility that she was exposed to asbestos while working at
RMR Corporation, in Maryland, in the 1960s.
& 21.

ECF No. 130 at 3-4

She points out that her belief that she was exposed to

asbestos by her use of Cashmere “does not negate the possibility
that she was exposed to asbestos from other sources.”
137 at 12.

ECF No.

This evidence surely preserves the “slight[est]

possibility of a right to relief” or a “glimmer of hope” on
Barlow’s claims against the in-state defendants.
F.3d at 426.

Harley, 187

As a result, the Court finds that joinder of the

in-state defendants here was not fraudulent and the case will be
remanded to the Circuit Court for Baltimore City.
Because no case may be removed more than one year after it
has commenced, 28 U.S.C. § 1446(c), and in this case, that date
fell well before discovery was scheduled to close, Colgate was
certainly in a difficult position.2

Contrary to Barlow’s

assertion that this case was removed in bad faith because
Colgate acted before discovery closed, ECF No. 66, the Court
finds Colgate’s attempts to elicit the basis for Barlow’s claims
against the in-state defendants, ECF No. 65, and its willingness
to delay a ruling on any motion for remand until discovery was

2

The one-year limit on removal applies “unless the district
court finds that the plaintiff has acted in bad faith in order
to prevent a defendant from removing the action.” 28 U.S.C. §
1446(c)(1).
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completed, ECF No. 67, to be commendable.

The Court will

therefore deny Barlow’s request for fees.
IV.

CONCLUSION
For the foregoing reasons, the Court concludes that

Barlow’s Motion for Remand will be granted and the case will be
remanded to the Circuit Court for Baltimore City.

A separate

order will issue.

/s/
William M. Nickerson
Senior United States District Judge
DATED: November 1, 2012

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