Flavin v. Lorillard Tobacco Company et al

Filing 32

Judge Richard G. Stearns: ORDER entered granting 20 Motion to Remand to State Court (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-11796-RGS
JANE FLAVIN, as representative of the
Estate of James Flavin, Jr.
v.
LORILLARD TOBACCO COMPANY, et al.
MEMORANDUM AND ORDER ON PLAINTIFF
JANE FLAVIN’S MOTION TO REMAND
June 8, 2015
STEARNS, D.J.
Plaintiff Jane Flavin brought this lawsuit in Middlesex Superior Court
against Lorillard Tobacco Company (Lorillard), and wholesale cigarette
distributors Garber Bros., Inc. (Garber), and Albert H. Notini & Sons, Inc.
(Notini). She seeks damages for the alleged wrongful death of James Flavin,
Jr., from lung cancer caused by smoking defendants’ Newport brand
cigarettes. The Complaint sets out four claims against defendants: breach of
implied warranty (Count I); violation of Chapter 93A (Count II); negligence
(Count III); and wrongful death (Count IV).

Plaintiff also claims civil

conspiracy (Count V) solely against Lorillard. Defendants subsequently
removed the case to federal court. In her motion to remand, Flavin argues
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that the court lacks diversity subject matter jurisdiction because she and
defendants Garber and Notini are citizens of Massachusetts.1 In response,
defendants assert that the citizenship of Garber and Notini, the two
distributors, should not be considered in a diversity analysis because they
were fraudulently joined to defeat federal jurisdiction.
BACKGROUND
The facts as alleged in the Complaint, filed on March 25, 2015, are as
follows. In 1957, James Flavin began smoking Newport cigarettes, which
were “defective and unreasonably dangerous.” Complaint (Compl.) at ¶ 1, 15.
The cigarettes designed and manufactured by Lorillard and distributed by
Garber and Notini “were expected to and did reach” James Flavin. Id. at ¶
27. Lorillard not only knew about and concealed from consumers the health
risks of smoking, but also engaged in a “campaign of disinformation”
designed to “mislead, confuse, and deceive the public” regarding the
dangerousness of its cigarettes. Id. at ¶ 3, 19, 20. As a result of this
campaign, James Flavin became addicted and a habitual smoker, unable to
overcome his addiction. Id. at ¶ 23. In April of 2011, Flavin was diagnosed

Garber and Notini are incorporated and principally based in
Massachusetts. Notice of Removal at ¶¶ 15-16. Lorillard is a Delaware
corporation with its principal place of business in North Carolina. Id. at ¶ 14.
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with lung cancer caused by his history of smoking. Id. at ¶ 24. After having
undergone radiation treatment and chemotherapy, James Flavin died on
March 27, 2012. Id. As the personal representative of his estate, plaintiff
brought this action against defendants. Id. at ¶ 1.
DISCUSSION
A non-resident defendant may remove a case from state court to
federal court if it satisfies the jurisdictional amount and presents a
controversy between citizens of different states. See 28 U.S.C. § 1441. The
defendant’s “right of removal cannot be defeated by a fraudulent joinder of a
non-diverse defendant ‘having no real connection with the controversy.’”
Mills v. Allegiance Healthcare Corp., 178 F. Supp. 2d 1, 4 (D. Mass. 2001),
quoting Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). A joinder
is deemed fraudulent if the defendant demonstrates, through clear and
convincing evidence, “‘either that there has been outright fraud committed
in the Plaintiff’s pleadings, or that there is no possibility, based on the
pleadings, that the Plaintiff can state a cause of action against the nondiverse defendant in state court.’” Mills, 178 F. Supp. 2d at 5, quoting
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 207 (2d Cir. 2001).
Whereas the defendant has a “heavy” burden, the “plaintiff need not have a
winning case against the allegedly fraudulent defendant; he need only have
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a possibility of stating a valid cause of action in order for the joinder to be
legitimate.” Fabiano Shoe Co. v. Black Diamond Equip., Ltd., 41 F. Supp. 2d
70, 71-72 (D. Mass. 1999) (emphasis in original).
Defendants contend that Garber and Notini are sham defendants
named solely to defeat diversity jurisdiction. They argue that Flavin, first,
fails to state a “legally sufficient cause of action” and, second, is unlikely to
litigate the claims against Garber and Notini. Notice of Removal at ¶ 5.
According to defendants, the absence of a valid cause of action stems from
Flavin’s failure to identify a connection between the harms she alleges and
the actions of the distributors. In support of this contention, defendants rely
on Mills, where the plaintiff was found to have “virtually no possibility of
success . . . because . . . [he] failed to allege or provide evidence” that he ever
used the distributor’s product. Mills, 178 F. Supp. 2d at 8.
Defendants, however, have failed to satisfy their burden of proving
fraudulent joinder. In Massachusetts, a distributor is strictly liable for a
breach of warranty, even when acting “merely as a conduit for the [injurious]
product.” Mitchell v. Stop & Shop Companies, Inc., 41 Mass. App. Ct. 521,
523 (1996); see also Ide v. Foreign Candy Co., 2006 Mass. App. Div. 165
(Dist. Ct. 2006) (noting that it is “a fair statement of the law” that the
distributor “stood in the shoes of the manufacturer and had the same
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obligations toward potential consumers.”). A plaintiff is entitled to relief for
a breach of implied warranty from a manufacturer or distributor so long as
the product at issue is shown to have been “defective and unreasonably
dangerous.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 422 (2013).
Here, Flavin alleges that the distributors breached the implied
warranty of merchantability by distributing “defective and unreasonably
dangerous” products under the guise that they were “merchantable and fit
for the ordinary purposes for which they were intended.” Compl. ¶¶ 1, 28.
Flavin specifically asserts that the Newport cigarettes distributed by Garber
and Notini “were expected to and did reach” James Flavin. Id. at ¶ 27.
Flavin, unlike the plaintiff in Mills, has alleged a connection between her
husband’s death and the distributors. See Evans v. Lorillard Tobacco Co.,
No. 04-11840-MLW (D. Mass. Apr. 21, 2005) (granting plaintiff’s motion to
remand). As for defendants’ second assertion that Flavin is unlikely to
litigate claims against Garber and Notini, the court has been given no reason
to question counsel’s good faith in naming them as defendants. If it should
prove at some point in the litigation that the joinder was in fact fraudulent,
there are sanctions up to and including dismissal, that are available to the
Superior Court.

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ORDER
For the foregoing reasons, Flavin’s Motion to Remand is ALLOWED.
The Clerk will return the case file to the Middlesex Superior Court.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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