TALLMAN v. HL CORP. USA

Filing 20

OPINION fld. Signed by Judge William H. Walls on 1/20/15. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEy

LINDA K. TALLMAN, INDIVIDUALLY
AND AS THE GUARDIAN AND
ADMINISTRATOR OF THE ESTATE OF
JOHN ADAM TALLMAN ON BEHALF
OF ONTEL PRODUCTS CORPORATION,
HARTFORD CASUALTY INSURANCE
CO., AND HARTFpr FIRE INSURANCE
CO.,
Plaintiffs,

OPINION

Civ. No. 14-5550 (WHW)(CLW)

V.

HL CORP (SHENZHEN); HL CORP USA;
SOUTH CHINA INSURANCE COMPANY;
TAIWAN FIRE & MARINE INSURANCE
CO., LTD.; THE FIRST INSURANCE CO.,
LTD.; SHTNKONG INSURANCE CO.
LTD.; CATHAY CENTURY INSURANCE
CO., LTD.; AZAD INTERNATIONAL
(H.K.) LTD.; AZAD INTERNATIONAL
CO.; JOHN DOES 1-20 (FICTITIOUS
NAMES), AND ABC CORPORATIONS 110 (FICTITIOUS ENTITIES),
Defendants.

Walls. Senior District Juçgç
This is an indemnification dispute, stemming from a products liability case. The central
question in the litigation is whether a distributor of an allegedly defective product, having made a
settlement payment to a plaintiff is entitled to indemnity from various insurers and upstream
manufacturers/djsb.jbutors of the product. The only issue currently before the Court is whether
the case was properly removed from New Jersey Superior Court.

NOT FOR PUBLICATION

The matter arose when John Adam Tailman (“John Taliman”) allegedly suffered a
catastrophic injury after using exercise equipment designed and manufactured by Defendant HL
Corp. (Shenzhen) (“HL Shenzhen”), and sold or marketed by Defendants HL Corp. USA
(“HL”), Azad International (“Azad”), and Azad International (Hong Kong) (“Azad (Hong
Kong)”), as well as Ontel Products Corporation (“Ontel”). Before commencing the abovecaptioned litigation, John Tailman’s guardian Linda K. Tallman (“Taliman”) filed an action in
Ohio state court against Ontel. As part of the settlement of that claim, Ontel assigned Taliman its

rights to sue for indemnification under insurance policies allegedly issued or co-insured by South
China Insurance Co., Taiwan Fire & Marine Insurance Co., The First Insurance Co., Shinkong
Insurance Co., and Cathay Century Insurance Co. (collectively, “the insurer defendants”).
Hartford Casualty Insurance Co., Hartford Fire Insurance Co. (together, “Hartford”), as Ontel’s
insurers, also assigned rights to Taliman as part of the settlement. Tallman, as an individual, as
John Tallman’s guardian and allegedly “on behalf of’ Hartford and Ontel, now brings this action
against the insurer defendants and the upstream manufacturers/distributors, demanding
indemnification and alleging other common law causes of action. ECF No. 1-2.
Defendant HL removed to federal court based on the diversity of the parties. ECF No. 1.
Yet Ontel and Azad are both New Jersey corporations. Compi.

¶f 5, 34. Tailman now moves to

remand this case to New Jersey Superior Court, stressing that Defendant Azad’s forum state
citizenship prevents removal under 28 U.S.C.

§ 1441(b). HL acknowledges that Azad is a New

Jersey corporation, but maintains that this Court has jurisdiction because Tallman improperly
joined Azad solely to defeat federal jurisdiction.
Whether joinder was improper here turns on two issues: (1) does the complaint contain
any colorable claim against Azad (the forum state defendant) by any of the named parties, and

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(2) if so, does the party who brings the claim have standing to do so? Because the complaint
states a colorable cause of action for indemnification against Azad, and because doubts as to the
identity of the real parties in interest must be resolved in favor of remand, HL has not made a
sufficient showing that Azad was improperly joined. Taliman’s motion to remand, decided
without oral argument under Fed, R. Civ. P. 78, is granted.

I.

FACTUAL AND PROCEDURAL BACKGROUND
On January 14, 2010, John Tallman allegedly injured himself using a workout bar

distributed by Ontel. Compi. ¶1168, 72. His guardian Linda Tailman sued Ontel in Ohio in 2011,
and settled the case with Ontel and its insurer Hartford on December 26, 2012. Id.
¶1177, 81.
Hartford paid an unspecified amount on Ontel’s behalf. Id.

¶ 119. As part of the settlement, both

Ontel and Hartford assigned Tailman their rights to seek indemnification under insurance
policies written by the five insurer defendants, “among other things.” Id.

¶ 81-82. The policies

indemnified Ontel for product liability claims arising from HL’s products. Id.

¶ 85. The full

terms of the settlement agreement, and the extent of Hartford’s subrogation of Ontel, remain
confidential and undisclosed. Id.

¶11 8 1-82, Pl.s Reply 5-6.

Plaintiff filed the instant complaint in New Jersey Superior Court on June 27, 2014,
sounding in contractual and common law indemnification, bad faith, declaratory judgment.
breach of contract, subrogation, and consumer fraud. ECF No. 1-2. Of specific relevance here,
the complaint alleges that Azad owes Ontel both common law and contractual indemnification
for Azad’s role in allegedly designing and manufacturing the defective product. Compl.

¶11 66-

67,93. HL removed on September 4, 2014. ECF No. 1-5 on the basis of complete diversity of

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parties, HL did not receive permission to remove from its codefendant Azad. Def. HL’s Br. 5,
ECF No. 11, The citizenship of the parties named in the caption is:

Linda K. Taliman, Individually and as the Guardian and Administrator of the Estate of John
Adam Tailman: Ohio (Compi.

¶ 3).

Ontel Products Corp.: New Jersey (id. ¶5)
Hartford Casualty Insurance Co.: Connecticut (id. ¶8)
Hartford Fire Insurance Co.: Connecticut (Id. ¶9)
HL Corp. (Shenzhen): China (Id.
HL Corp. USA: California (id.

¶ 10)

¶ 13)

South China Insurance Co.: Taiwan (Id.

¶ 16)

Taiwan Fire & Marine Insurance Co. Ltd.: Taiwan (Id.
The First Insurance Co. Ltd.: Taiwan (Id.

¶ 22)

Shinkong Insurance Co. Ltd.: Taiwan (Id.

¶ 19)

¶ 25)

Cathay Century Ins. Co.: Taiwan (Id.

¶ 28)

Azad International (H.K.) Ltd.: China (Id. ¶31)
Azad International Co.: New Jersey (id.

II.

¶ 34)

STANDARDS FOR REMOVAL AND REMAND
“[AJny civil action brought in a State court of which the district courts of the United

States have original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States..

.“

28 U.S.C.

§

l441(a); see also Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58,63 (1987). For the Court to have diversity jurisdiction, “the matter in

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controversy [must] exceed[] the sum or value of $75,000,” and must be “between,. citizens of
.

different states.” 28. U.S.C.

§ 1332(a). After removal, a party can move to remand the action

back to state court. 28 U.S.C.

§ 1447(c). The removing party bears the burden of establishing the

federal court’s jurisdiction. Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d
Cir. 2004). “[R]emoval statutes are to be strictly construed against removal, and all doubts
resolved in favor of remand.” Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
Under what is known as the forum defendant rule, when federal court jurisdiction is based on the
parties’ diversity of citizenship under 28 U.S.C.

§ 1332, removal is permissible “only if none of

the parties in interest properly joined and served as defendants is a citizen of the State in which
[the] action [was] brought.” Lincoln Prop. Co. v. Roche, 546 U.S. 81, 83-84 (2005) (citing 28
U.S.C.

IlL

§ 1441(b)); see also In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006).

STANDARD FOR IMPROPER JOINDER
The purpose of the “properly joined and served” language in

§ 1441(b) is to prevent the

abuse of the forum defendant rule by improper joinder. See Sullivan v. Novartis Pharmaceuticals
Corp., 575 F. Supp. 2d 640, 643 (D.N.J. 2008). “Improper joinder is the practice of naming a
forum-resident entity as a defendant solely to prevent an action from being removed to federal
court (either by implicating the forum defendant rule, or by destroying diversity jurisdiction).” Id.
“Joinder is fraudulent if there is no reasonable basis in fact or colorable ground supporting the
claim against the joined defendant, or no real intention in good faith to prosecute the action against
the defendant or seek a joint judgment.” Briscoe, 448 F.3d at 216 (citation and quotation marks
omitted). On the other hand, a claim is considered “colorable” as long as it is not “wholly
insubstantial and frivolous.” Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992). It is

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easier for a claim to be “colorable” than to survive a motion to dismiss under Rule 12(b)(6), a
“more searching” inquiry. Id, When considering a claim of improper joinder, a court “must resolve
any uncertainties as to the current state of controlling substantive law in favor of the plaintiff’ and
“if there is even a possibility that a state court would find that the complaint states a cause of action
against any one of the resident defendants, the federal court must find that joinder was proper
and remand the case to state court.” Boyer, 913 F.2d at ill (citation and quotation marks omitted).
The inquiry “focus[es] on the plaintiffs complaint at the time the petition for removal was filed.”
Batoff 977 F.2d at 851 (citation and quotation marks omitted).

IV.

THE RECORD IS INSUFFICIENT TO SHOW IMPROPER JOINDER
HL presents two grounds for the improper joinder of Azad. First, it suggests that Taliman

has no intent to prosecute the action against Azad because the father of the president of Ontel
works for Azad. ECF No. 1-4. Given the heavy volume of litigation between family members,
and involving family-owned businesses, a blood relation between members of different business
entities is no prima facie indication of a lack of intent to prosecute.
More substantially, HL contends that the complaint does not contain colorable claims
against Azad. It maintains that the statute of limitations bars products liability claims against
Azad, that Azad had little to do with the manufacturing or sale of the product, and that the
insurance policies at issue did not involve Azad. Evaluating this argument requires determining
not only whether the complaint contains a colorable cause of action against Azad, but also
whether the party bringing the claim has standing. The Court discusses these issues in turn.

The Complaint States Colorable Indemnification Claims by
Ontel and Hartford against Azad
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Plaintiff argues that the complaint states a valid cause of action for indemnification
against Azad. P1.’s Reply 4. “The right of indemnity enures to a person who, without active fault
on his own part, has been compelled by reason of some legal obligation, to pay damages
occasioned by the initial negligence of another, and for which he himself is only secondarily
liable.” Enright
Bakeiy, Inc.

V.

Lubow, 202 N.J. Super. 58, 85 (App. Div. 1985) (citing Adler’s Quality

Gaseteria, inc., 159 A.2d 97 (N.J. 1960)), If a party places a defective product in

the stream of commerce, it is subject to a strict products liability claim. See Fischer v. Johns
Manville Corp., 512 A.2d 466, 472 (N.J. 1986) (“to prove apri,nafacie case of strict products
liability a plaintiff need not introduce evidence relating to a manufacturer’s or distributor’s
conduct, except to establish that the defendant did in fact put the offending article into the stream
of commerce.”). New Jersey allows “claims for common-law indenmification by one party in the
chain of distribution against a party higher up the chain.” Promaulayko v. Johns Manville Sales
Corp., 562 A.2d 202, 206 (N.J. 1989). The parties may also contract for indemnification or some
other allocation of the risk of loss. Id. at 207.
On its face, the complaint alleges that Azad owes Ontel and Hartford indemnity for the
settlement payment they made to Tailman. For the purposes of this motion, the complaint
sufficiently depicts Azad as interposed between Ontel and the manufacturer on the supply chain.
The complaint states that Azad acted as the sourcing agent for Ontel, Compl.

¶ 35, “contracted

with and negotiated with Plaintiff Ontel, to act as its sourcing agent in order to find a company to
manufacture and design the ‘workout bar,” id.

¶ 66, and “contracted and negotiated with HL

and/or HL USA regarding the design, manufacturing and product [sic] of the ‘workout bar.” Id.

¶ 67. The stream of commerce is described as:

the exercise equipment was “manufactured and

designed by HL and/or HL USA, sourced by Azad Ltd. and/or Azad Co. and distributed by
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Ontel.” Id.

¶ 88. Plaintiff further specifies that Azad “contracted for the design, fabrication,

engineering, formulation, production, construction and assembly of the work out bar.” Id. ¶93.
On that basis, the complaint claims both Ontel’s and Hartford’s “equitable, contractual, common
law and/or implied right of indemnification for the acts or omissions of Defendant Azad,” id.
93, including for settlement proceeds paid to Taliman, id.
has refused this indemnity in bad faith, Id.

¶J 94,

¶

115, 119, and asserts that Azad

¶J 97-98, committing fraud in the process. Id. ¶ 121.

In addition to the complaint’s allegations, Plaintiff attaches invoices allegedly showing
that Azad purchased the product in bulk. Aff. of Cynthia Walters, Exs. A, B, ECF No. 7-2. HL
points out that the invoices were from 2008, beyond New Jersey’s two-year statute of limitations
for products liability actions. Gantes v. Kason Corp., 679 A.2d 106, 110 (N.J. 1996). But the
untimely purchase date does not foreclose the possibility that Azad placed the product in the
stream of commerce, upstream of Ontel and John Taliman, thereby subjecting Azad to an action
for indemnification. The invoices are simply a small data point suggesting that the claim against
Azad has colorable basis.
A six-year statute of limitations applies to indemnification claims in New Jersey, and
does not bar Ontel and Hartford from seeking indemnification from Azad for the settlement
payments to Tailman. See N.J.S.A. 2A:14-1. Taliman settled with Ontel on December 26, 2012
(Compl.

¶ 81), a transaction involving Hartford (id. ¶ 119); the statute of limitations for

indemnification started running on that date. See Mettinger v. Globe Slicing Mach. Co., 709 A.2d
779, 786-87 (N.J. 1998) (“[t]he two-year statute of limitations imposed on a plaintiffs claims for
personal injuries does not preclude a defendant’s claim for contribution or indemnification.”);
Travelers Indem. Co. v. Darnmann & Jo., 592 F. Supp. 2d 752, 767 (D.N.J. 2008), aff’d, 594

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F.3d 238 (3d Cir. 2010) (“a claim for indemnity results only from payment or settlement to a
third party.”), The present claims are timely.

It Is Possible that a Party with Standing Brings the Indemnification Claim

However colorable the claims against Azad might be, they cannot proceed if they have
been brought by a party with no standing to assert them. Under New Jersey law, “[e]very action
may be prosecuted in the name of the real party in interest; but an executor, administrator,
guardian of a person or property.

.

.

or a party with whom or in whose name a contract has been

made for the benefit of another may sue in the fiduciary’s own name without joining the person
for whose benefit the suit is brought.” New Jersey Citizen Action v. Riviera Motel Corp., 686
A.2d 1265, 1271 (App. Div. 1997) (citingR. 4:26—1 (1996)); cf Fed. R. Civ. P. 17(a)(l) (“[a]n
action must be prosecuted in the name of the real party in interest.”). “New Jersey law does not
recognize any distinction between the concepts of standing and real party in interest.” New
Jersey Citizen Action, 686 A.2d at 1271.
“The phrase, ‘real party in interest,’ is a term of art utilized in federal law to refer to an
actor with a substantive right whose interests may be represented in litigation by another.” US.
cx rel. Eisenstein v. City ofNew York, New York, 556 U.S. 928, 934-3 5 (2009). A real party in
interest “must be beneficially entrusted or rightfully or substantially interested in the outcome of
the litigation so that the judgment, when entered, will be binding and conclusive and the
defendant will be saved from further harassment or vexation at the hands of other claimants to
the same demand.” See New Jersey Citizen Action, 686 A.2d at 1271 (internal citations omitted).
“There may be multiple real parties in interest for a given claim, and if the plaintiffs are real
parties in interest, Rule 17(a) does not require the addition of other parties also fitting that

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description.” NB Gen, Corp. v. Manchester Partners, Li?,, 95 F.3d 1185, 1196 (3d Cir. 1996).
The Third Circuit further explained as follows:
This conclusion is informed by the fact that the original purpose of the real party
in interest rule was permissive—to allow an assignee to sue in his or her own
name. The modern function of the rule in its negative aspect is simply to protect
the defendant against a subsequent action by the party actually entitled to recover,
and to ensure generally that the judgment will have its proper effect as res
judicata. As noted above, any doubt as to the preclusive effect of this litigation on
[anon-named plaintiff] can be resolved by protective provisions in the judgment.
Id. at 1197 (internal citations omitted).
Determining whether a party is a real party in interest can turn on more than the wording
of the caption; examination of the full complaint and other parts of the record may be necessary.
See Choi v. Kim, 50 F.3d 244, 246-47 (3d Cir. 1995); see also US. ex rel. Eisenstein, 556 U.S. at
935 (“[t]he caption is not determinative as to the identity of the parties to the action.”). Even an
expressly incorrect caption does not necessarily prevent a court from ruling on the merits of the
case or binding the real parties in interest. See, e.g., Estate ofArtz v. Artz, 487 A.2d 1294, 1296
n.1 (N.J. App. Div. 1985).
“In the context of insurance subrogation cases, insurers who become subrogees of the
rights of the insureds by the payment of claims are real parties in interest who may.

.

.

prosecute

actions to recover the amount of each claim in their own names.” Nat ‘1 Fire Ins. Co. ofHartford
v. Universal Janitorial Supply Corp., No. CIV. 05-5945 (AET), 2006 WL 892291, at *2 (D.N,J.
2006) (citing United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 380 (1949)). Whether a
subrogor/assignor remains a real party in interest turns on whether the subrogation or assignment
is complete or partial; that is, whether the party has assigned all or just some of its rights to the
interested plaintiff. On the one hand, “if a subrogee has paid an entire loss suffered by an
insured, it is the only real party in interest and the only party that may sue in its own name.” Id.

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In contrast, “[wjhen there has been.

.

.

a partial assignment the assignor and the assignee each

retain an interest in the claim and are both real parties in interest.” U.S. ex rel. Eisenstein, 556
U.S. at 934 (internal citations omitted).
Ontel and Hartford have colorable claims against Azad, but Taliman, in her individual
capacity and as John Taliman’s guardian, does not. As a result, the indemnification claims
1
against Azad are brought by a real party in interest if either of two possibilities is true. First,
either Ontel or Hartford could have assigned all or part of its claim to Taliman, giving her an
interest that she otherwise would not have, and allowing her to sue Azad for indemnification as
assignee of Ontel or Hartford. Second, either Ontel or Hartford could actually be pursuing the
claim on its own behalf, despite not appearing in the caption in its individual capacity. The
record does not provide clarity with regard to either possibility—the complaint contains typos,
inconsistencies and a caption incongruent with the allegations that follow. Resolving all doubts
in favor of remand, as the Court must under Boyer, there is enough of a chance that some claim
against Azad could lie that remand is required.
The complaint is unclear as to whether the claim is truly brought on behalf of Ontel.
The caption’s language, “Linda K. Tailman. .on behalf of Ontel Products Corporation,” is
.

confusing under the circumstances. ECF No. 1-2 at 1. “On behalf of’ generally means “for the
benefit of,” as in a derivative suit brought by a shareholder through which the corporation would
recover, see, e.g., In re PSE & G Shareholder Litigation, 801 A. 2d 295, 306 (N.J. 2002) (with
shareholder plaintiffs appearing in the caption “on behalf of and for the benefit of Public Service

‘The complaint does not and cannot sound in products liability; as John Tailman was injured in
2010, and the present complaint was filed in 2014, any individual cause of action by Taliman
against Azad for products liability is time-barred under New Jersey’s two-year statute of
limitations. NJ.S.A. 2A:14—2. None of the other causes of action colorably involve any alleged
relationship between Tailman and Azad.
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Enteiprise Group, Incorporated”), or a claim brought by a guardian because her ward was unable
to do so. Despite the caption, Tailman has no apparent relationship with Ontel apart from the
rights that have been subrogated or assigned, Assignment of rights may be noted in the caption,
see, e.g., Herman Wenzel; Christine Wenzel, h/w as assignees of Charles Swensen and K & C
Conversions,

inc.

v. Nautilus Ins. Co., et al., 474 F. App’x 862 (3d Cir, 2012). Despite the

complaint’s allegations of Ontel’s and Hartford’s assignment of rights to Tailman, the caption
does not name Taliman “as assignee of’ Ontel and Hartford. Similarly, subrogation claims are
often captioned with the term “as subrogee of,” or “AIS/O,” and the term “plaintiff’ is singular.
See, e.g., Fid. & Guar. Ins. Underwriters, Inc., as subrogee ofRalph Santanielto, Plaintiff v.
Omega Flex, Inc., et at., Defendants, 936 F. Supp. 2d 441 (D.N.J. 2013). This caption contains
no such subrogation language, and names “Plaintiffs,” plural.
At first glance, Ontel’s absence from the caption in its individual capacity suggests that
the only rights of Ontel’s that are at issue are those that have been assigned to Tallman. Since the
caption does not adequately reflect the allegations in the complaint, further inquiry is required to
determine whether other interests are at stake. Under the section of the complaint marked
“Parties,” Linda K. Tailman is identified as “Plaintiff,” whereas Ontel is not. Compi.

¶J 3, 5. On

the other hand, Ontel is styled as the sole “Plaintiff’ later on, under “Jurisdiction & Venue”:
“Plaintiff, Ontel, is a New Jersey company principally engaged in distributing consumer
products.” Id.

¶ 36. The complaint frequently uses the plural, “Plaintiffs,” including in each of

the “Wherefore” clauses. See, e.g., Id. 16 at ¶ 99, 19. The complaint does mention that Ontel
assigned Tallman its rights under defendant insurers’ policies, id.

¶ 82, and Ontel also states a

claim against Defendant Azad for common law indenmification that does not arise under those
policies. Id.

¶J 93-94, 97-98,

115. Ontel seeks indemnity not only for the settlement with

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Taliman but also for its own attorney’s fees in defending the original action. Id. 19 at 3. Most
¶
convincingly, Ontel seems to take responsibility for filing the complaint, asking for “expenses
incurred by Ontel ‘s counsel in bringing this action.” Id. 20 at ¶4 (emphasis added). All this
suggests that Ontel plays a more significant role than a mere subrogor or assignor.
Hartford’s role is similarly uncertain; it maybe a real party in interest. The complaint
asserts that Hartford, “because of payments [it] made on behalf of Ontel in the underlying
product liability action, [is] entitled to the recovery of those monies.

.

.

from.

.

.

Azad.

.

There is no further clarification as to Hartford’s relationship with Taliman or Ontel. Compi.

¶

119. The Fifth Count, for subrogation, involves only Hartford, then asks for judgment on behalf
of”Plaintiffs”—a term broad enough to include Hartford, even if it does not do so explicitly. Id.
21.
At this stage, the record is also limited as to the extent of the subrogation agreement
among Ontel, Hartford, and Tailman. Because the agreement is confidential and undisclosed, and
is described vaguely as conferring “other things” to Taliman besides the right to sue the insurer
defendants, it is possible that it assigns Ontel’s and/or Hartford’s right to sue Azad for common
law indemnification to Tailman. PL’s Reply 5-6; Compl.

¶J 8 1-82. Tailman characterizes the

agreement broadly in her brief: “The settlement included assignment to plaintiffs of [Ontel’s]
right to indemnification (common law, contractual and under policies of insurance).” Pl.’s Br. 2
(emphasis added). As the complaint demands indemnification against Azad on behalf of
“Plaintiffs” in the unspecified aggregate, Compl. at 15-16, 21, the Court cannot determine that
Tailman is barred from bringing the indemnification claim—this doubt must be resolved in favor

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of remand. See Boyer, 913 F.2d at Ill. It follows that the complaint states claims against Azad
that are colorable enough to withstand the very limited inquiry for improper joinder,
2

V.

CONFUSION OVER THE ROLE OF ONTEL AND HARTFORD IN THE
LITIGATION MAKES ATTORNEY’S FEES UNWARRANTED
Taliman requests attorney’s fees and costs from HL for improperly removing this case. A

court may impose fees on a party who removes a case improperly under 28 U.S.C.

§ 1447(c).

LoU v. Duffv, No. 13-4727, 2014 WL 4357594, *3 (3d Cir. 2014) (citing Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005)). “[Am award of fees under

§ 1447(c) is left to the

district court’s discretion.” Martin, 546 U.S. at 139. “[TJhe standard for awarding fees should
turn on the reasonableness of the removal.” Id. 141.
HL removed on the basis of complete diversity. It argued that because Azad was
improperly joined, the case could properly be removed. Plaintiffs joinder of Azad would be
improper if(1) Ontel and Hartford never assigned their common law indemnification rights to
Taliman, and (2) Ontel and Hartford do not otherwise stand to gain if Azad is held liable for
indemnification. The record is not dispositive on either issue. Such doubts must be resolved in
favor of remand for purposes of this motion, but their existence makes HL’s removal reasonable.
The Court declines to impose attorney’s fees or costs on HL.

HL
2 requests additional discovery, on the grounds that more facts might shed light on the claim
of fraudulent joinder. As HL otherwise presents no more than speculation to support an assertion
of fraud, the standard of review is less searching than for a motion to dismiss, and the inquiry
“focus[esj on the plaintiffs complaint at the time the petition for removal was filed,” this request
is unwarranted. See Batoff 977 F.2d at 851.
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VI.

CONCLUSION
The motion to remand the case to New Jersey Superior Court is granted.

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DATE:

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ctesDistrietJudge
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