Bristol v Ford Motor Company et al

Filing 55

MEMORANDUM AND ORDER OF REMAND: IT IS HEREBY ORDERED that Plaintiff's motion to remand is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent it seeks remand of this action to the Circuit Court for the City of St. Louis, Missouri. The motion is denied to the extent it seeks an award of costs, fees, expenses, and sanctions. IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for the City of St. Louis under 28 U.S.C. 1447(c). The Clerk of Court is directed to mail to the clerk of the Circuit Court for the City of St. Louis a certified copy of this Memorandum and Order. IT IS FINALLY ORDERED that all other motions pending in this Court are DENIED without prejudice as moot. Signed by District Judge John A. Ross on 10/27/2016. (CLO)(cc: St. Louis City Circuit Clerk)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NOLA H. BRISTOL,
Plaintiff,
vs.
FORD MOTOR COMPANY, et al.,
Defendants.

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Case No. 4:16-cv-01649-JAR

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Plaintiff Nola H. Bristol’s motion to remand this action
to the Circuit Court for the City of St. Louis, Missouri, from which it was removed by Defendant
Ford Motor Company (“Ford”) (Doc. 37). The matter is fully briefed and ready for disposition.
For the following reasons, the Court will grant the motion in part, and deny the motion in part.
Background
On August 20, 2015, Plaintiff filed this civil action in the Circuit Court for the City of St.
Louis, Missouri, naming Ford, Mendenhall Motor Company d/b/a Mendenhall Rebuilders
(“Mendenhall”) and twenty-two other defendants (collectively, “Defendants”). In her petition,
she alleges that from 1972 until 1989, her husband, Gene Bristol, was employed as a mechanic at
a Ford dealership in Utah; that in the course of that employment, he was exposed to large
amounts of asbestos contained in products that Defendants manufactured, sold, and distributed;
and that he developed mesothelioma as result of his workplace exposure to asbestos. Plaintiff
sought relief under Missouri state law (Doc. 1.1 at 1-21).

On October 24, 2016, Ford removed the case to this Court (Doc. 1). In its notice of
removal, Ford asserts (1) that as the sole remaining defendant in this action, it was not required
to obtain the consent of any of the other Defendants before removing this action; (2) that the
Court has diversity jurisdiction over this matter because the remaining parties—Plaintiff and
Ford—are completely diverse and the amount in controversy exceeds $75,000, see 28 U.S.C.
§ 1332(a) (diversity jurisdiction); (3) that its notice of removal is timely because it was filed
within thirty days of October 24, 2016, when Plaintiff dismissed Mendenhall and the action
became removable 1; (4) that the one-year limit for removing actions on the basis of diversity, as
set forth in 28 U.S.C.§ 1446(c), does not preclude removal of this action because Plaintiff acted
in bad faith to prevent timely removal by failing to prosecute her claim against Mendenhall.
Ford identifies the following facts as evidence that Plaintiff acted in bad faith to prevent
removal. First, the state-court docket sheet shows that Plaintiff never sought discovery from
Mendenhall, and Mendenhall never sought discovery from Plaintiff. Second, Plaintiff did not
seek to depose Mendenhall’s corporate representative in this action. Third, during a deposition of
Mr. Bristol’s former co-worker, Plaintiff offered a “product identification stipulation” to
Mendenhall. 2 Fourth, Plaintiff did not respond to a motion for summary judgment filed by
Mendenhall, but later responded to a summary judgment motion filed by another defendant.
Finally, Mendenhall was dissolved in June 2010, and nothing suggests that Plaintiff sought to

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Mendenhall was the so called “removal spoiler” in this action. Plaintiff, Ford, and
Mendenhall were, at all relevant times, completely diverse, i.e., Plaintiff did not share citizenship
with either Ford or Mendenhall. However, Ford was barred from removing the action so long as
Mendenhall, a Missouri resident, remained a defendant. See 28 U.S.C. § 1441(b)(2) (a civil
action otherwise removable on the basis of diversity jurisdiction 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
the action is brought).
2
Plaintiff describes the “product identification stipulation” as a stipulation that the coworker would not be able to identify Mendenhall as the manufacturer of any product to which
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determine whether Mendenhall had a contract of insurance that would indemnify the company
for Plaintiff’s claim (Docs. 1 at 4-9; 1.57 (state court docket sheet); 1.58 (excerpt of deposition
of co-worker); 1.59 (Mendenhall’s summary judgment motion)).
Plaintiff now moves to remand this case back to the Circuit Court for the City of St.
Louis (Docs. 36-37; 51). In support of her motion, Plaintiff first argues that Ford’s removal of
this case is procedurally defective because Ford has not obtained the consent of two other
defendants who have not yet been dismissed (Doc. 36 at 5-6). Plaintiff also contends that Ford’s
removal is untimely, as the notice of removal was not filed within one year after Plaintiff filed
her action in the state court (Id. at 6-8).
As to Ford’s argument that she acted in bad faith to prevent removal, Plaintiff asserts that
she actively litigated her claim against Mendenhall, and that there is no evidence she
intentionally kept Mendenhall in the case solely to prevent removal. More specifically, she
claims that she obtained substantial discovery from Mendenhall, albeit through discovery
requests filed in a different asbestos-exposure lawsuit involving Plaintiff’s counsel and
Mendenhall; that as part of ongoing settlement negotiations, Mendenhall agreed that Plaintiff
would not need to respond to its motion for summary judgment; and that she ultimately settled
her claim against Mendenhall, for consideration, on October 24, 2016 (Id. at 3-5, 9-12). Plaintiff
has produced a copy of an email that Mendenhall’s counsel sent to Plaintiff’s counsel on August
17, 2016 at 9:33 p.m., in which counsel for Mendenhall wrote, “Any chance a package deal of
[another asbestos-exposure case] and Bristol might be of interest to you? Just thinking outside
the usual box.” (Doc. 36.16). Plaintiff has also submitted an affidavit from Plaintiff’s counsel,
dated October 24, 2016, in which counsel attests, inter alia, that Plaintiff and Mendenhall have

Mr. Bristol had been exposed.
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agreed to a settlement in this case, but are awaiting “final approval” of the settlement from
Mendenhall’s insurer (Doc. 36.17).
Plaintiff also seeks sanctions against Ford under Rule 11 of the Federal Rules of Civil
Procedure or the Court’s inherent authority, and an award of costs, fees, and expenses under 28
U.S.C. § 1447(c) (Docs. 36-37, 51). According to Plaintiff, sanctions are warranted because Ford
improperly removed this action on the first day of trial in the state court, and after its third
motion for continuance was denied, for the purpose of delaying the state-court proceeding (Docs.
36 at 1, 13-15; 51 at 13-15).
Ford opposes Plaintiff’s motion to remand, reiterating its arguments in support of
removal (Docs. 50; 53-54). In support of its argument that it is the only remaining defendant in
this action, Ford points to Plaintiff’s October 24, 2016 response to a motion to dismiss for lack of
personal jurisdiction filed by Ford in the state-court proceeding, which states “Plaintiff has
litigated this case up to the eve of trial, and has resolved or dismissed her claims against every
defendant other than Ford.” (Doc. 1.61 at 30). According to Ford, this statement triggered a new
thirty-day removal period under 28 U.S.C. § 1446(b)(3). Ford further asserts that this statement
also establishes there are no other defendants from whom it was required to seek consent before
removing this action (Doc. 50 at 2-6). Ford also opposes Plaintiff’s request for sanctions, arguing
that its removal was proper, that Plaintiff’s request for Rule 11 sanctions is procedurally barred,
and alternately, that sanctions are not warranted because it had a good faith basis in law and fact
for removing the case to federal court (Docs. 41, 53-54).
Analysis
1. Ford was not required to obtain consent of other defendants.

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Initially, the Court finds that Ford’s notice of removal was not procedurally defective for
failure to obtain the consent of other defendants. When a civil action is removed to federal court,
all defendants who have been joined and served must generally join in or consent to the removal
of the action. 28 U.S.C. § 1446(b)(2)(A). However, consent from dismissed defendants is not
required. Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 903 n.2 (8th Cir. 1985) (citations
omitted) (settlement between plaintiff and non-diverse defendant may be final enough to support
removal even in absence of formal entry of dismissal); see Midwestern Indem. Co. v. Brooks,
779 F.3d 540, 544 (8th Cir. 2015) (once claims against defendant who did not consent to
removal were settled, removal was proper because continuation of suit against them would be a
nullity). The Court concludes that Plaintiff’s statement in her October 24, 2016 response in
opposition to Ford’s motion to dismiss was effective to establish that Ford was the only
remaining defendant in this action. As such, Ford was not required to seek and obtain the consent
of other defendants before filing its notice of removal.
2. This action became removable under 28 U.S.C. § 1446(b)(3) on October 24, 2016.
Section § 1446(b)(3) provides:
If the case stated by a plaintiff’s initial complaint is not removable, a notice of
removal may be filed within thirty days after 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.
The information supporting removal in “other paper” must be “unequivocally clear and
certain to start the time limit running for a notice of removal under [§ 1446(b)].” Patrico v. A.W.
Chesterton Co., No. 4:14cv00338AGF, 2014 WL 2197779, at *3 (E.D. Mo. May 27, 2014).
“Federal courts do not impose upon a defendant a duty to investigate and determine removability
where the initial pleading or subsequent document indicates that the right to remove may exist,
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although a defendant must apply ‘a reasonable amount of intelligence’ to the matter.” Id. at *4
(quoting Cutrone v. Mortg. Elec. Registration Systs., Inc., 749 F.3d 137, 143 (2d Cir. 2014). The
Court concludes that Plaintiff’s October 24, 2016 response to Ford’s motion to dismiss was the
first “amended pleading, motion, order, or other paper” from which Ford could ascertain that this
case had become removable. Therefore, on October 24, 2016, this action first became removable,
and a new thirty-day removal window was triggered pursuant to § 1446(b)(3).
3. Ford has not established that Plaintiff acted in bad faith to excuse the one-year bar on
§ 1446(b)(3) removals.
The Court concludes that this case was nevertheless not timely removed, as Ford did not
file its notice of removal within one year from the date Plaintiff initiated the case, and Ford has
not shown that Plaintiff acted in bad faith to prevent it from removing the action within one year.
Section 1446(c)(1) provides that “[a] case may not be removed under [§ 1446(b)(3)] on the basis
of [diversity] jurisdiction more than 1 year after commencement of the action, unless the district
court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing
the action.” Ford does not dispute that it filed its notice of removal more than one year after
Plaintiff commenced her action. At issue is whether Plaintiff acted in bad faith to prevent Ford
from removing this case before § 1446(c)’s one-year limit for removal of diversity actions
expired, i.e., that she acted in bad faith to prevent Ford from removing this action before August
20, 2016.
Federal courts must “resolve all doubts about federal jurisdiction in favor of remand” and
are to strictly construe the removal statute, including its time limits for removal. Dahl v. R.J.
Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007). As the party seeking removal, Ford
bears the burden of establishing this Court’s jurisdiction. Bowler v. Alliedbarton Sec. Servs.,
LLC, 123 F. Supp. 3d 1152, 1155 (E.D. Mo. 2015). The Eighth Circuit Court of Appeals does
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not appear to have addressed the bad-faith exception to § 1146(c)’s one-year time limit for
removing diversity actions to federal court. Both parties direct the Court to Aguayo v. AMCO
Ins. Co., 59 F. Supp. 3d 1225, 1274-75 (D.N.M. 2014). In Aguayo, the district court developed
the following two-step framework for analyzing the bad-faith exception:
[T]he Court construes the bad-faith exception as a two-step standard. First, the
Court inquires whether the plaintiff actively litigated against the removal spoiler
in state court: asserting valid claims, taking discovery, negotiating settlement,
seeking default judgments if the defendant does not answer the complaint, et
cetera. Failure to actively litigate against the removal spoiler will be deemed bad
faith; actively litigating against the removal spoiler, however, will create a
rebuttable presumption of good faith. Second, the defendant may attempt to rebut
this presumption with evidence already in the defendant’s possession that
establishes that, despite the plaintiff’s active litigation against the removal spoiler,
the plaintiff would not have named the removal spoiler or would have dropped the
spoiler before the one-year mark but for the plaintiff’s desire to keep the case in
state court. The defendant may introduce direct evidence of the plaintiff’s bad
faith at this stage—e.g., electronic mail transmissions in which the plaintiff states
that he or she is only keeping the removal spoiler joined to defeat removal—but
will not receive discovery or an evidentiary hearing in federal court to obtain such
evidence.
Id. at 1274-77.
The Court finds this framework persuasive, while recognizing that it is not controlling
and does not bind the Court. Under the Aguayo framework, Ford has failed to establish that
Plaintiff acted in bad faith to prevent Ford from removing this action to federal court. First, Ford
has not established that Plaintiff did not actively litigate her claims against Mendenhall. See id.
at 1262 (plaintiff who actively litigates against removal-spoiling defendant is entitled to
presumption of good faith). Plaintiff’s counsel has represented to the Court that she engaged in
settlement negotiations with counsel for Mendenhall over the course of several months, as
reflected in the August 17, 2016 email between Plaintiff’s counsel and counsel for Mendenhall.
Moreover, Plaintiff represents that, on October 24, 2016, those negotiations culminated in a final
settlement agreement, pursuant to which Plaintiff will receive compensation from Mendenhall.
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Plaintiff has also provided plausible explanations for the absence of documented discovery on
the state-court docket sheet, namely, that Plaintiff’s counsel obtained discovery from Mendenhall
pursuant to a discovery request filed in a different case, and Plaintiff’s counsel had previously
deposed Mendenhall’s corporate representative in a different asbestos-exposure lawsuit. See
Heacock v. Rolling Frito-Lay sales, LP, No. C16-0829-JCC, 2016 WL 4009849, *3 (W.D.
Wash. July 27, 2016) (“[W]hile bad faith has been found where a plaintiff dismissed a defendant
without conducting any discovery, even ‘bare minimum’ discovery attempts have been
considered to not amount to bad faith.”) (citations omitted); see also Heller v. Am. States. Ins.
Co., No. CV 15-9771 DMG, 2016 WL 1170891, at *2-3 (C.D. Cal. Mar. 25, 2016) (plaintiff did
not actively litigate claims against removal-spoiling defendant where she did not serve the
defendant with a summons for more than one year); Lawson v. Parker Hannifin Corp., No. 4:13cv-923-O, 2014 WL 1158880, at *4-6 (N.D. Tex. Mar. 20, 2014) (plaintiff did not actively
litigate claims against removal-spoiling defendant where she failed to serve discovery request or
notice his deposition, failed to seek default judgment when he failed to timely answer complaint,
and nonsuited the defendant shortly after expiration of on year bar on removal to federal court).
In addition, Ford has not adduced any direct evidence that Plaintiff acted solely for the
purpose of preventing Ford from removing this case to federal court before August 20, 2016.
Aguayo, 59 F. Supp. 3d at 1274-75. Ford does not dispute that Plaintiff had a viable claim
against Mendenhall. Rather, Ford argues that the August 17, 2016 email shows that Plaintiff had
substantially settled her claims against Mendenhall before the one-year time for removal had
expired, and that she intentionally waited until the first day of trial to disclose the agreement. The
Court disagrees. At best, the August 17, 2016 email shows that Plaintiff and Mendenhall were
actively engaged in settlement negotiations, but had not yet formalized the terms of an
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agreement. There is no evidence that—between August 17, 2016 and August 20, 2016, the
removal deadline—Plaintiff and Mendenhall formalized an agreement, Plaintiff failed to inform
Ford and the state court of the agreement, and that Plaintiff did so for the purpose of preventing
removal. Id. at 1264-65 (obtaining a settlement from the defendant is a permissible purpose for
keeping a removal-spoiling defendant in a case).
4. Plaintiff is not entitled to an award of costs, fees, expenses, or sanctions.
When remanding an action to state court, a district court may require defendants to pay
just costs and actual expenses that a plaintiff has incurred as a result of improper removal. 28
U.S.C. § 1447(c). An award of costs and fees under § 1447(c) is appropriate where the removing
party lacked an “objectively reasonable basis for seeking removal.” Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005). The Court concludes that Ford’s attempt to remove this action
pursuant to § 1446(c)’s bad-faith exception was not objectively unreasonable. When Ford filed
its notice of removal, the state-court docket sheet did not reflect any discovery requests or
notices of depositions between Plaintiff and Mendenhall. The state-court docket sheet also
reflected that Mendenhall had filed a motion for summary judgment to which Plaintiff had not
filed a timely response. Although Plaintiff has since provided reasonable explanations for the
absence of such activity on the state-court docket sheet, i.e., ongoing settlement negotiations
between Plaintiff and Mendenhall which culminated in a final settlement agreement on October
24, 2016, Ford was not privy to those communications. Under the facts and circumstances of this
case, and given the apparent absence of binding Eighth Circuit authority on the scope of the badfaith exception, the Court concludes that Ford had an objectively reasonable basis for seeking
removal of this action under § 1446(c)’s bad-faith exception. The Court also declines to impose
sanctions under Rule 11 or its own inherent authority. This Memorandum and Order shall not
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disturb the authority of the Circuit Court for the City of St. Louis to require Ford to pay costs,
fees, expenses, or sanctions arising out of Ford’s conduct in attempting to remove this action to
federal court. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand is GRANTED IN PART
AND DENIED IN PART. The motion is granted to the extent it seeks remand of this action to
the Circuit Court for the City of St. Louis, Missouri. The motion is denied to the extent it seeks
an award of costs, fees, expenses, and sanctions.
IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for
the City of St. Louis under 28 U.S.C. § 1447(c). The Clerk of Court is directed to mail to the
clerk of the Circuit Court for the City of St. Louis a certified copy of this Memorandum and
Order.
IT IS FINALLY ORDERED that all other motions pending in this Court are DENIED
without prejudice as moot.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 27th day of October, 2016.

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