Pickard et al v. DAP, Inc., et al

Filing 20

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk of Court shall remand this action to the Circuit Court for the Twenty-Second Judicial Circuit, St. Louis City, Missouri from which is was removed. Terminate Case. Signed by District Judge Catherine D. Perry on July 28, 2014. (Copy of this Memorandum and Order and docket sheet sent to: M. Jane Schweitzer, Clerk,Circuit Court of the City of St. Louis,State of Missouri,10 North Tucker,St. Louis, MO 63101, this date.)(MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEANIE PICKARD, et al.,
Plaintiffs,
vs.
DAP, Inc. et al.,
Defendants.

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Case No. 4:14CV1290 CDP

MEMORANDUM AND ORDER OF REMAND
This recently removed asbestos case is before me on my review for subject matter
jurisdiction. Plaintiffs are husband and wife and allege that Geanie Pickard contracted an
asbestos-related disease, including mesothelioma, from exposure to defendants’ asbestoscontaining products. Geanie was allegedly exposed to these asbestos-containing products
through her son, Scott, who worked with and around these products and then brought asbestos
dust and fibers into the family home and vehicles. Plaintiffs bring state law claims for strict
liability, negligence, willful and wanton conduct, conspiracy, and loss of consortium. Defendant
Union Carbide Corporation alleges this Court has diversity jurisdiction under 28 U.S.C. § 1332
(a)(1) and that it is entitled to remove this action to federal court despite the presence of a
Missouri defendant because that defendant, Welco Manufacturing Company, has been
fraudulently joined to defeat removal.
28 U.S.C. § 1441(b) allows a defendant to remove a civil action from state court to
federal court based on diversity jurisdiction only if none of the properly joined defendants are
citizens of the state in which the original action was filed. Applied here, I lack jurisdiction over
this case if one of the defendants is citizen of Missouri. 28 U.S.C. § 1441(b) (“A civil action

otherwise removable solely on the basis of the jurisdiction under [28 U.S.C. § 1332(a)] may not
be removed if any of the parties in interest properly joined and served as defendants is a citizen
of the State in which such action is brought.”); Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145
(8th Cir. 1992). Defendant Union Carbide, as the party invoking jurisdiction, bears the burden of
proving that all prerequisites to jurisdiction are satisfied. See In re Business Men’s Assur. Co. of
America, 992 F.2d 181, 183 (8th Cir. 1993). Removal statutes are strictly construed, and any
doubts about the propriety of removal are resolved in favor of remand. Transit Cas. Co. v.
Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997).
Removal will not be defeated, however, by collusive or fraudulent joinder of a resident
defendant. See Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983). When a party
seeking removal alleges fraudulent joinder, the removing party bears the substantial burden of
proving the alleged fraud. See Parnas v. General Motors Corp., 879 F. Supp. 91, 92 (E.D. Mo.
1995). To establish that a resident defendant has been fraudulently joined, the removing party
must show that: (i) there is no possibility the plaintiff would be able to establish a cause of action
against the resident defendant in state court; or (ii) there has been outright fraud in the plaintiff’s
pleadings of jurisdictional facts. Monroe v. Consolidated Freightways, Inc., 654 F. Supp. 661,
662-63 (E.D. Mo. 1987). Any contested fact issues must be resolved in favor of the plaintiff.
See id. at 663 (citation omitted). “A joinder is fraudulent only when there exists no reasonable
basis in fact and law support a claim against the resident defendants.” Wilkinson v.
Shackleford, 478 F.3d 957, 964 (8th Cir. 2007) (internal quotation marks and citation omitted).
Union Carbide argues that Welco has been fraudulently joined to defeat diversity
jurisdiction because, in a prior lawsuit filed by Scott, he allegedly “testified from a prepared,
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written list identifying all asbestos products [he] worked around and his list did not include any
Welco product.” Union Carbide also claims that Welco is fraudulently joined because, in that
prior suit, neither Geanie nor her husband could testify that Scott was definitely exposed to a
Welco product.
This evidence falls woefully short of establishing that Welco was fraudulently joined so
as to defeat removal jurisdiction. I have read all the deposition testimony, and Union Carbide
has mischaracterized it in an attempt to create removal jurisdiction where none exists. First,
Scott did not testify from “a prepared, written list identifying all asbestos products [he] worked
around.” He made some handwritten notes before his deposition which he used to refresh his
recollection during his testimony. These notes contained the names of some asbestos-containing
products he remembered working with. At no time did he ever testify that this list included all
the asbestos-containing products he ever came into contact with. Moreover, the Court cannot
even determine whether Welco was actually a defendant in that prior action. Scott was never
specifically asked about Welco during the deposition, and no attorney entered an appearance for
Welco. The same is true for Geanie and the rest of her family, who all testified during their
depositions that they had no personal knowledge of the particular asbestos-containing products
Scott was exposed to while working. Like Scott, they were never specifically asked about
Welco, and no attorney appeared on behalf of Welco to question them. Neither the Court nor the
defendants have any idea what the deponents might say if specifically questioned about Welco,
just as the Court does not know what, if any, additional information Scott and/or the plaintiffs in
this case may have learned or remembered about Welco or other asbestos-containing products
since their depositions were taken. Plaintiffs have sufficiently alleged that exposure to
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defendants’ asbestos-containing products, including Welco products, injured them. There is
nothing in this record to suggest that plaintiffs lack a reasonable basis in law or fact to support
their claims against Welco. As such, Welco is not fraudulently joined so as to defeat removal
jurisdiction.1 There is nothing to support removal of this case to federal court, so it must be
summarily remanded to the City of St. Louis, Missouri under 28 U.S.C. § 1447(d).
Accordingly,
IT IS HEREBY ORDERED that the Clerk of the Court shall remand this action to the
Circuit Court for the Twenty-Second Judicial Circuit, St. Louis City, Missouri from which it was
removed.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 28th day of July, 2014.

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Union Carbide demands “reasonable discovery” to carry its burden of proof on
jurisdiction, but it is not entitled to discovery to support a baseless removal. Here, defendant has
already provided the Court with all the evidence it contends supports removal, and I have
considered it in reaching my decision. That evidence conclusively establishes that there is no
right to removal. Defendant is not entitled to conduct discovery in hopes of creating a right to
removal where none exists.
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