Harrison et al v. Volkswagen Group of America, Inc. et al

Filing 11

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of the Court shall remand this action to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis), from which it was removed. (copy of order and docket sheet mailed to 22nd Circuit Court of MO) Signed by District Judge Carol E. Jackson on 5/26/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONNA LEE HARRISON and JERRY
HARRISON,
Plaintiffs,
vs.
VOLKSWAGEN GROUP OF
AMERICA, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-740-CEJ

MEMORANDUM AND ORDER
This matter is before the Court sua sponte to determine whether subject
matter jurisdiction exists in this case. See Fed. R. Civ. P. 12(h)(3).
I.

Background

On May 27, 2015, plaintiffs filed this action in the Circuit Court for City of St.
Louis, Missouri, alleging that plaintiff Donna Harrison developed mesothelioma as a
result of exposure to asbestos. According to the notice of removal, plaintiffs are
residents of Nebraska.

Their citizenship, however, is not alleged either in the

complaint or in the notice of removal. See Reece v. Bank of N.Y. Mellon, 760 F.3d
771, 777 (8th Cir. 2014) (“When it comes to diversity jurisdiction, the words
‘resident’ and ‘citizen’ are not interchangeable.”).

According to the citizenship

allegations in the notice of removal, none of the defendants is a citizen of Nebraska.
The lawsuit initially named 28 defendants, but at the time of removal only
five defendants remained. One of the remaining defendants, J.P. Bushnell Packing
Supply Company (J.P. Bushnell), is a Missouri corporation. Defendant Volkswagen
Group of America, Inc. (Volkswagen), a New Jersey corporation, removed the

action on May 24, 2016. In its notice of removal, Volkswagen contends that J.P.
Bushnell was fraudulently joined.
II.

Discussion

An action is removable to federal court if the claims originally could have
been filed in federal court. 28 U.S.C. § 1441; In re Prempro Prods. Liab. Litig., 591
F.3d 613, 619 (8th Cir. 2010).

The defendant bears the burden of establishing

federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). A case must be remanded if, at any time,
it appears that the district court lacks subject matter jurisdiction.

28 U.S.C.

§ 1447(c); Fed. R. Civ. P. 12(h)(3). Any doubts about the propriety of removal are
resolved in favor of remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
2007).
Removal in this case was premised on diversity jurisdiction, which requires
an amount in controversy greater than $75,000, exclusive of interest and costs,
and complete diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). It
is undisputed that the amount in controversy requirement is met in this case.
“Complete diversity of citizenship exists where no defendant holds citizenship in the
same state where any plaintiff holds citizenship.”

OnePoint Solutions, LLC v.

Borchert, 486 F.3d 342, 346 (8th Cir. 2007). Assuming arguendo that plaintiffs are
citizens of Nebraska, complete diversity existed at the time the case was filed and
exists today because none of the defendants are citizens of Nebraska.
However, “[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

2

in which such action is brought.”

28 U.S.C. § 1441(b)(2).

Thus, the Missouri

citizenship of defendant J.P. Bushnell would appear to prevent removal.
Volkswagen contends that because J.P. Bushnell was fraudulently joined, its
citizenship does not defeat diversity jurisdiction. “Courts have long recognized
fraudulent joinder as an exception to the complete diversity rule.” Prempro, 591
F.3d at 620.

“Fraudulent joinder occurs when a plaintiff files a frivolous or

illegitimate claim against a non-diverse defendant solely to prevent removal.” Id.
To prove fraudulent joinder, the removing party must show that “the plaintiff’s
claim against the diversity-destroying defendant has ‘no reasonable basis in fact
and law.’”

Knudson v. Sys. Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011)

(quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)). “[I]f it is
clear under governing state law that the complaint does not state a cause of action
against the non-diverse defendant, the joinder is fraudulent.”

Id.

Conversely,

“joinder is not fraudulent where ‘there is arguably a reasonable basis for predicting
that the state law might impose liability based upon the facts involved.’”

Id.

(quoting Filla, 336 F.3d at 811).
Volkswagen does not dispute that the complaint alleges a potentially
meritorious cause of action against J.P. Bushnell for causing Donna Harrison’s
mesothelioma.

Rather, Volkswagen contends that because J.P. Bushnell has not

filed any pleadings or other documents, has not appeared at any hearings or
depositions, and plaintiffs have not sought default, the company must have been
fraudulently joined. Volkswagen cites no support for the novel proposition that a
defendant’s action or inaction proves a plaintiff fraudulently joined that defendant.
Nor does Volkswagen offer authority holding that, where a plaintiff has pled a

3

facially legitimate cause of action, fraudulent joinder is demonstrated by the
plaintiff’s conduct vis-à-vis that defendant during the litigation. Though plaintiffs’
inaction with respect to J.P. Bushnell ultimately may affect their success against
that defendant, it is a far cry from proving “no reasonable basis in fact and law”
exists to hold the company liable.

Id.

Further, because any doubts about the

propriety of removal must be resolved in favor of remand, Wilkinson, 478 F.3d at
963, the Court will not adopt Volkswagen’s unsupported arguments.
Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that “[i]f the
court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Because on the face of the complaint J.P. Bushnell was
not fraudulently joined and it remains a defendant in this case, 28 U.S.C.
§ 1441(b)(2) forbids removal of this action.

The Court finds that subject-matter

jurisdiction does not exist, and the case must be remanded.

See id. § 1447(c);

Fed. R. Civ. P. 12(h)(3); Wilkinson, 478 F.3d at 963.
Accordingly,
IT IS HEREBY ORDERED that the Clerk of the Court shall remand this
action to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis),
from which it was removed.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of May, 2016.

4