FUSCO et al v. ASBESTOS CORPORATION LTD. et al

Filing 10

OPINION filed. Signed by Judge Peter G. Sheridan on 7/8/2011. (eaj)

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PEI.1.EGRINA FUSCO and ANTONELLA
H SCO.

Civil Action No.: 11-3301 (PGS)

Plaintiffs,
OPINION
V.

ASBESTOS CORPORATION.

et

al.

Defendants.

SHERIDAN, U.S.D.J.

This matter comes before the Court on Plaintiffs Pellegrina Fusco and Antonella Fusco’s
emergency motion to remand this matter to the Superior Court of New Jersey (P1aintiffs’ Motion’).

On or about August 16, 2010, Plaintiffs tiled this lawsuit against many Defendants including
Asbestos Corporation, et al. (“Defendants”) due to personal injuries (mesothelioma) contracted by
her through second hand exposure to asbestos-containing products that her husband carried home
on his clothing

from

his work.

Shortly thereafler, due to Pellegrina Fuscos severe medical conditions, the Superior Court
of New Jersey placed the lawsuit on an “accelerated track’ in order to ensure that Pellegrina Fusco
could see the litigation through to its conclusion and participate at trial.

As a result of this

accelerated approach. all discovery has been completed and the state court trial is scheduled to
commence on July 11. 2011.

In April. 2011. all the New Jersey Defendants were dismissed from the case, giving the
remaining Defendants the opportunity to remove the state court action to federal court based on
diversity of citizenship.
On June 14.2011. Defendants filed a notice of removal (‘Defendants Notice of Removal’)
based on diversity of state citizenship.
On June 16. 2011. Plaintiff filed this Order to Show Cause to remand the case to the Superior
Court in New Jersey in advance of the trial date.
On or about June 27, 2011. oral argument

held. At that time, neither party requested a

factual hearing. As a result, the Court relies on the materials submitted.
II.
During Pellegrina Fuscos deposition in September, 2010, she testified that [sjometirne prior
to 1970 she became a citizen of the United States’ and that “I am currently a citizen of both the
t
United States and Italy.’ (Affidavit, pp. 7, 13). In 1964, at the age of 15, she moved to the United
States and lived here until 1986 when she returned to Italy. Further, Pellegrina Falco testified that
while in the United States she had worked; registered for a Social Security benefits, paid social
security and other taxes, and voted. When she moved back to Italy, there is no proof that she
renounced her United States citizenship. Upon her return to Italy, she registered to vote, pays taxes,
and obtained an Italian drivers license (Affidavit of Pellegrina Fusco).
Defendants provided very little proof except to say Pellegrina Fusco testimony should be
s
t
rejected because “Ones testimony as to [herJ intention to establish a domicile, while entitled to full
and fair consideration, is subject to the infirmity of any self-serving declaration. and it cannot prevail
to establish domicile when it is contradicted or negatived b an inconsistent course of conduct:
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11 1 d 96 401

(3d Cir. 2008) (internal quotation marks and citation omitted).
Ill.
The Petition removing the matter to federal court was based solely on diversity of citizenship.
28 U.S.C.

§ I 332(a)( 1). The statute provides in pertinent part:
The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75000,
exclusive of interest and costs, and is between—
(1) citizens of different States;

Defendant contends that this Court possesses subject matter jurisdiction over this dispute.
The burden of proving that subject matter jurisdiction exists rests with the removing parties
case, i)efendants. AfciVuu v. Gen. Motors Acceptance Corp.

ofInd.,

in this

298 U.S. 178. 189 (1936):

Samuel-Bassett v. KL4 Motors Am., Inc.. 357 F.3d 392, 396 (3d Cir. 2004) (citation omitted); Bover
i.

Snap-On Tools Corp., 913 F.2d 108. 111 (3d Cir. 1990) (citation omitted). “The removal statutes

are to be strictly construed against removal and all doubts should be resolved in favor of rernand.’
Boyer, 913 F.2d at 111 (internal quotation marks and citation omitted).
Subject matterjuri sdiction exists under section 1 332(a)( 1) only where the dispute is between
“citizens of different states.” In order to be a “citizen of a state” for the purposes of this provision,
however, the person must be a citizen of the United States and be domiciled within a state.
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American citizen domiciled abroad, while being a citizen of the United States is, of course, not
domiciled in a particular state. and thereibre such a person is stateless’ br purposes of diversity
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40 I d 179 184 (3d Cii 2008) (Lltatlon omitftd)

Here. there does not appear to be any dispute that Pellegrina Fusco lives in Italy. not in the
United States. As such. under the line of reasoning set fbrth above. Pellegrina Fusco is not a citizen
of a state” for the purposes of section 1332(a)(l), Since subject matter jurisdiction does not exist
under this provision, remand to state court is appropriate.
TV.
During the course of this application. Defendants have altered their position. and presently
argue that removal was proper under the alienage provision of the statute as opposed to diversity of
citizenship. The alienage section of the statute reads that “district courts shall have original
jurisdiction of all civil actions

...

and is between

.

.

.

citizens of a state and citizens or subjects of

a foreign state.” 28 U.S.C. §1332(a)(2). Defendants contend that jurisdiction exists under section
l332(a)(2) because this action is between Defendants

—

a collection of entities from different states

as well as Canada and Plaintif1 an Italian resident and citizen. (See Defendants’ Opposition Brief.
pp. 8-9).
This argument is fatally flawed. A number of courts that have considered the issue of
1

Even if section 1332(a)(2) did provide jurisdiction, Defendants’ removal effort is still
deficient. Pellegrina Fusco’s deposition was taken in September, 2010, and Defendants then had the
opportunity to question Pellegrina Fusco regarding her status as an American citizen. Section
1446(b) provides the proper procedure for a notice of removal in this case:
If the case stated by the initial pleading is not removable, a notice of
removal may be filed within thirty days ater 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, except that a
case may not be removed on the basis of jurisdiction conferred by
section 1332 of this title more than 1 year after commencement of the
action.
(emphasis added). This District has ruled that deposition testimony can constitute
the “other paper” mentioned in section 1446(b). Connolli v.Aetna US. fieafthcare.

whether alienage jurisdiction exists where an individual is a dual citizen have held that only the
American citizenship is relevant for purposes of diversity under 28 U.S.C.

§ 1332.” Pinto v.

Spectrum Chems. andLab, Prods., 2007 WL 3071694, at *3 (D.N.J. Oct. 22. 2007). Therefore, “an
American national, living abroad, cannot sue or be sued in federal court under

§ 1 332(a)(2).’

Fren-Smith. 511 F.3d at 400. Put differently. “an American living abroad is not by virtue of that

domicile a citizen or subject of the foreign state in which he resides so as to permit invocation of the
alienage jurisdiction prescribed in 28 U.S.C.

§ 1332(a)(2) of the Judicial Code.” Coury v. Pro!, 85

F.3d 244, 250 (5th Cir. 1996) (citation omitted).
Defendants rely on the dominant nationality exception:” however, the Third Circuit has not
recognized that this “exception’ is reached. See Pinto, 2007 WL 3071 694 at *4

Moreover, as

another circuit recently observed, the “dominant nationality exception” discussed in Sadat v, Meries,
615 F.2d 1176 (7th Cir. 1980) is dictum and not the holding of the case:
Sac/a! discussed in dicta a hypothetical exception to this general rule
in which a dual citizen whose dominani nationality is that of a
foreign country’ might be considered a citizen of a foreign state under
§ 1332(a)(2). 615 F.2d at 1187. Sadat based this hypothetical
exception on the Restatement (Second) of the Foreign Relations Law
of the United States § 171(c) (1965). However, Sadat did not endorse
the ‘dominant nationality’ test, but merely said that it would consider
the possibility ‘arguendo.’ Id. Moreover, no circuit court since Sadat
Inc.. 286 F. Supp. 2d 391. 399 (D.N.J. 2003) (“Becausc Dr. MolTisons deposition
testimony gave notice to defendant that plaintiffs’ claim may raise a federal ground.
such testimony constitutes other paper for purposes of § 1446(b),”). As such, even
if this Court did hold jurisdiction, Defendants had thirty days from the date of the
deposition at which Defendant ascertained” that the case was removable. 28 U.S.C.
§ 1446(b). Defendants failed to remove the case in this time-frame.

has adopted or considered this test.
BuchL’l-Ruegsegger v. Buchel, 576 F.3d 451, 453 n.2 (7th Cir. 2009).

Costs and Actual Expenses
Plaintiffs additionally seek “just costs and actual expenses. including attorneys fees.
incurred as a result of the improper removal of this action.” “[TJhe standard for awarding fees
should turn on the reasonableness of the removal. Absent unusual circumstances. courts may award
attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis
for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141(2005) (citation omitted). Here, there
were. in fact, some issues regarding Pellegrina Fusco’s citizenship that triggered a legitimate basis
for Defendants to seek removal ofthe case. As such. Plaintiffs’ request for costs and actual expenses
is denied.
Conclusion
As such, the Defendants have not met their burden of proof to support that the law suit
should be removed to federal court. In light of Pellegrina Fusco’s proof, the matter is remanded
to the Superior Court of New Jersey. Plaintiffs’ request for costs and actual expenses is denied.

‘F

PEIFRG SHIRIDAN USD1