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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA VARIOUS PLAINTIFFS v. VARIOUS DEFENDANTS ("Oil Field Cases") : : : : : : : : CONSOLIDATED UNDER MDL 875 CIVIL ACTION NO. 09-MC-103 MEMORANDUM EDUARDO C. ROBRENO, J. DECEMBER 10, 2009 The instant motion to remand was filed on behalf of 444 plaintiffs ("plaintiffs") arguing that this Court must remand their actions to Mississippi state court for lack of subject matter jurisdiction. Defendants1 have filed timely responses. For the reasons set forth herein, plaintiffs' motion to remand will be granted in part and denied in part. I. BACKGROUND These cases originated in Mississippi state court and were removed to federal court by defendants Union Carbide and ConocoPhillips. The basis for removal was the allegedly fraudulent joinder of two non-diverse defendants, Oilfield Service & Supply, Inc. ("Oilfield Service") and Mississippi Mud., Inc. ("Mississippi Mud"). In addition, twenty-five of these Union Carbide Corp. filed a response in opposition to this motion to remand, which was joined by co-defendants ConocoPhillips and Montello, Inc. Oilfield Service & Supply, Inc. filed an individual response opposing the motion. 1 cases were removed under the theory that plaintiffs were entitled to assert federal jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA"). After removal, plaintiffs filed motions to remand, on the same grounds considered here, in the Southern District of Mississippi. After considering these motions, United States District Judge Walter Gex remanded five of these cases to Mississippi state court. Before Judge Gex was able to rule on the remaining motions, the cases were transferred to the Eastern District of Pennsylvania and consolidated as part of MDL-875 by the Judicial Panel on Multidistrict Litigation. The remand motions remaining on the docket at the time of the consolidation with MDL-875 were denied by the MDL court without prejudice. (MDL-875 Administrative Order no. 11 at 3, doc no. 5936, 01-md875.) Plaintiffs have renewed their request for remand in the 444 cases and this renewed motions is now before the Court. Based on their procedural histories, these cases fall into three categories. Plaintiffs' motion to remand will be considered under the facts of each category individually. a.) Category 1: This category consists of 354 plaintiffs whose cases were initiated in 2004. Originally filed as a multi-plaintiff action, these plaintiffs had their cases severed into individual actions in Mississippi state court in 2006. After severance, each plaintiff filed an individual 2 amended complaint. Defendants subsequently removed these cases (Defs.' Notice of as a group to federal court on Sept. 26, 2008. Removal Ex. "D", doc. no. 58, 09-mc-103.) The basis for removal in these cases is the alleged fraudulent joinder of non-diverse parties Oilfield Service and Mississippi Mud. b.) Category II: This category consists of 65 cases which were filed in 2004, but were dismissed in Mississippi state court because they were filed in an improper venue. Plaintiffs re-filed these cases on Sept. 28, 2007, and defendants removed these cases as a group to federal court on Sept. 26, 2008, within one year of the date of re-filing. "D", doc. no. 58, 09-mc-103.) (Defs.' Notice of Removal Ex. As in Category I, the basis for removal in these cases is the alleged fraudulent joinder of nondiverse parties Oilfield Service and Mississippi Mud. c.) Category III: This category consists of 25 cases The which were removed based on federal question jurisdiction. defendants aver that plaintiffs' claims are governed by OCSLA. As an alternative basis of federal jurisdiction, defendants also assert the fraudulent joinder of Oilfield Service and Mississippi Mud. After removal, the cases in all three categories were grouped by the Court for settlement purposes, pursuant to MDL-875 3 procedures.2 See MDL-875 Website, Settlement Conference After Procedures, available at attending several settlement conferences with defendants and Magistrate Judge Strawbridge, plaintiffs filed the instant motion to remand. II. LEGAL STANDARD A district court considering a motion to remand "must focus on the plaintiff's complaint at the time the petition for removal was filed . . . [and] must assume as true all factual allegations of the complaint." (3d Cir. 2006). In re Briscoe, 448 F.3d 201, 218 The "party who urges jurisdiction on a federal court bears the burden of proving that jurisdiction exists . . ." Defendants, in their response, note that the Court has discouraged the filing of mass motions that apply to many plaintiffs in MDL-875. While this point is noted, plaintiffs affected by the instant motion have been referred to Magistrate Judge David R. Strawbridge as a group. Additionally, each of the plaintiffs in each of the four categories is identified by name in exhibit "A" of the motion to remand. Denying plaintiffs' motion on the grounds of MDL-875 policy would simply result in the filing of an identical motion in each of 444 cases. The defendants' argument takes the Court's policy too far in this instance. Previous opinions of the Court have discouraged motions attempting to change case-wide policy (i.e., mass dismissals for failure to comply with administrative orders or mass remands because the MDL is "not working"). See In re Asbestos Prods. Liab. Litig., 614 F.Supp.2d 550, 554 (E.D. Pa. 2009); In re Asbestos Prods. Liab. Litig., 254 F.R.D. 266, 268 (E.D. Pa. 2008). The instant motion is based on fairly specific facts with regard to a discrete set of plaintiffs. The plaintiffs are represented by one law firm and fall neatly into three categories. The utility of dealing with these cases as one group outweighs the policy considerations of an overly strict "one-plaintiff, one-motion" program. 4 2 Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); see also Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987), cert. dismissed sub nom. American Standard v. Steel Valley Auth., 484 U.S. 1021 (1988) ("It remains the defendant's burden to show the existence and continuance of federal jurisdiction."). Because the removal of an action from the state court to a federal forum implicates comity and federalism, it is said that "removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth., 809 F.2d at 1010 (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985)); accord Brown v. Francis, 75 F.3d 860, 865 (3d Cir. 1996); Boyer, 913 F.2d at 111. The practical application of this "all doubts" standard is to place upon a defendant "a heavy burden of persuasion" when contending that a non-diverse party has been fraudulently joined. Boyer, 913 F.2d at 111. To prevail, the removing party must show that 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 defendants . . . " In re Briscoe, 448 F.3d at 218. Title 28 U.S.C. 1446(b) governs the timing of removal, specifying that "a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 5 1 year after commencement of the action." Additionally, "notice of removal of a civil action . . . shall be filed within thirty days after the receipt by the defendant . . . of the initial pleading setting forth the claim for relief . . . ." 1446(b). 28 U.S.C. Where it is not evident from the initial pleading whether the case is removable, "a notice of removal may be filed within thirty days after receipt by the defendant . . . 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 . . ." Id. III. APPLICABLE LAW As the MDL transferee court, the Court must first determine which jurisdiction's law to apply to the substantive and procedural issues in these cases. A. Procedural Law On matters of procedure, the transferee court must apply federal law as interpreted by the court of the district where the transferee court sits. See In re Diet Drugs Prods. Issues Liab. Litig., 294 F.Supp.2d 667, 672 (E.D. Pa. 2003). involving the timeliness of remand implicate federal procedural law. See In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., 624 F.Supp.2d 396, 408-9 n.15 (E.D. Pa. 2009). As noted above, after the cases were removed to federal 6 court but before they were consolidated into MDL-875, the plaintiffs filed motions to remand in 449 individual cases. Judge Gex of the Southern District of Mississippi, in the only rulings that were made prior to the transfer to MDL-875, granted five of these motions. The remaining motions were pending upon transfer to the Eastern District of Pennsylvania and consolidation under MDL-875. As to the five motions ruled on by Judge Gex, "there is nothing in the text [of 1407] that authorizes a transferee judge to vacate or modify an order of a transferor judge," In re Pharmacy Benefit Managers Antitrust Litig., Civ. No. 07-1151, F.3d , 2009 WL 3030370, at *6 (3d Cir. Sept. 24, 2009), unless it is warranted after application of law of the case principles. Id. at *7; see also, In re Ford Under the Motor Co., 580 F.3d 308, 312 (5th Cir. Aug. 21, 2009). circumstances of this case, the orders entered by Judge Gex on any motions to remand are binding on this Court. There were, however, 444 motions to remand pending, but not yet acted upon by Judge Gex at the time the cases were transferred and consolidated under MDL-875. As described above, these motions were denied without prejudice after being transferred to the Eastern District of Pennsylvania, but have been renewed and are now before the Court. As to these cases, the Court will "adjudicate [these] transferred cases no differently than cases originally filed before it." In re Korean 7 Air Lines Disaster, 829 F.2d 1171, 1178 (D.C. Cir. 1987). Therefore, as to the pending motion to remand, the Court will apply federal procedural law, as interpreted by the Third Circuit, the circuit where the transferee court sits. B. Substantive Law In applying substantive law, the transferee court must distinguish between matters of federal and state law. In matters requiring the interpretation of the Constitution, a federal law or a federal rule of procedure, a transferee court applies the law of the circuit where it sits. Therefore, in cases where jurisdiction is based on federal question, this Court, as the transferee court, will apply federal law as interpreted by the Third Circuit.3 In matters where the Court has jurisdiction under 28 U.S.C. 1332 based upon diversity of citizenship, the transferee court applies state substantive law as determined by the choice See, e.g., In re New England Mut. Life Ins. Co. Sales Practices Litig., 324 F.Supp.2d 288, 297 (D. Mass. 2004) ("In the ordinary course, questions of federal law in MDL-transferred cases are governed by the law of the transferee circuit."); In re Nat'l Century Fin. Enters., Inc., Inv. Litig. 323 F.Supp.2d 861, 876 (S.D. Ohio 2004) ("Thus, the rule in multidistrict litigation is that the transferee court, in interpreting federal law, should apply the law of its own circuit rather than the law of the transferor court's circuit"); In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., No. 1:00-1898, 2005 WL 106936, at *5 (S.D.N.Y. Jan. 18, 2005) (holding that in interpreting and applying "the federal constitution, any federal statute, or the Federal Rules of Civil Procedure" the court was bound "only by the opinions of the Supreme Court and Second Circuit."). 8 3 of law analysis required by the state in which the action was filed. Therefore, in the instant cases, this Court will apply the state substantive law as determined by the choice of law rules of Mississippi, the state in which the cases were filed.4 IV. DISCUSSION A. Category I The Category I cases refer to the 354 plaintiffs who originally filed their cases in Mississippi state court in 2004, yet removal was not effected until 2008. doc. no. 44, 09-mc-103.) Plaintiffs argue that the Category I cases should be remanded for two reasons. First, because they were removed (Pls.' Mot. Remand 1-2, beyond the time limitations on removal found in 1446(b); and second because the plaintiffs have valid claims against two nondiverse defendants, Oilfield Service and Mississippi Mud, destroying diversity of citizenship and leaving the defendants no basis for invoking federal jurisdiction. (Pls.' Memo. Supp. Mot. Remand 15, doc. no. 45, 09-mc-103.) In response, the defendants present a two part argument See Van Dusen v. Barrack, 376 U.S. 612, 639 (1967) (evaluating applicable law after change of venue under 28 U.S.C. 1404(a)); see also In re Dow Sarabond Prods. Liab. Litig., 666 F.Supp. 1466, 1468 (D. Colo. 1987) (citing In re Agent Orange Prod. Liab. Litig., 580 F.Supp. 690, 695 (E.D.N.Y. 1984)) (evaluating applicable law after change of venue under 28 U.S.C. 1407). 9 4 against remand. First, they contend that they are entitled to an "equitable exception," allowing for effective removal after one year has passed from the commencement of the action. Resp. in Opp'n to Remand 12, doc. no. 58, 09-mc-103.) (Defs.' The defendants contend that, because the plaintiffs engaged in "forum manipulation," equity requires the Court to allow the removal of these cases. (Id. at 13.) Second, if the Court applies an equitable exception, defendants argue that Oilfield Service and Mississippi Mud are fraudulently joined, and thus, are not proper forum defendants. 1. Equitable Exception Section 1446(b) imposes a strict one year limitation on the length of time that a party has available for removal after the commencement of the action. As described above, the petition for removal in the Category I cases was not filed until more than four years after these cases were originally commenced in state court.5 (Defs.' Resp. in Opp'n Mot. to Remand at Ex. D, doc. no. 58, 09-mc-103.) While 1446(b) does not explicitly detail any The Court notes that the actions commenced in 2004 were massive multi-plaintiff actions. The Mississippi state court severed these plaintiffs and required each to file amended complaints. Each plaintiff filed an amended complaint in 2006. Even if the Court calculates the one year time period from the date that each amended complaint was filed, the petition for removal was not filed until well after the one year limitation had passed. (Pls.' Mot. Remand 15, doc. no. 44, 09-mc-103.) 10 5 exception to the one year limitation, the Third Circuit has held that the one year limit on removal is a procedural bar, not a jurisdictional one. Ariel Land Owners, Inc. v. Dring, 351 F.3d The practical effect of this holding 611, 616 (3d Cir. 2003).6 is to open the door to an examination of equitable considerations in deciding whether to allow exceptions to the one year limitation on removal. In determining whether the equitable exception applies, courts have looked at the balance of the equities. In balancing the equities, courts have considered three factors: first, how vigorously the plaintiff prosecuted the action in state court; second, whether the defendants were complicit in any delay in removal of the case; and third, whether or not plaintiffs' joining of the non-diverse defendants amounted to "flagrant forum manipulation." See Namey v. Malcolm, 534 F.Supp.2d 494, 498 (M.D. Pa. 2008) (holding that because defendants were partly responsible for the delay in state court, application of an equitable exception was inappropriate); Lee v. Carter-Reed Co., 06-1173, 2006 WL 3511160, at *5 (D.N.J. Dec. 5, 2006) (holding that defendants did not allege facts sufficient to show that plaintiff's conduct amounted to forum manipulation); In re Diet In support of this holding, the Third Circuit cited to Tedford v. Warner-Lambert Co., 327 F.3d 423, 426-7 (5th Cir. 2003), which is the case most heavily relied on by defendants in support of an equitable exception. 11 6 Drugs Prods. Liab. Litig., 03-20376, 2004 WL 1535806 at *4 (E.D. Pa. June 18, 2004) (holding that defendants met the burden of showing fraudulent joinder where there was no possibility for recovery against the in-state defendants). Balancing the equities in the Category I cases, the first two factors are particularly relevant here. In essence, they ask how diligently the parties pursued the litigation in state court prior to the untimely removal. See Lee, 2006 WL 3511160 at *5; see also Namey, 534 F.Supp.2d at 498. Arguing in favor of the application of an equitable exception, the defendants contend that they diligently pursued the litigation in state court but were frustrated by plaintiffs' forum manipulation. Defendants claim that they participated in all pretrial fact discovery, but that Oilfield Service was purposely never pursued by plaintiffs in an effort to keep them in the case as a nominal forum defendant. (Defs.' Resp. in Opp'n to Mot. Remand Ex. D, doc. no. 58, 09-mc-103.) As a result, defendants claim that they had no way of uncovering plaintiffs' forum manipulation until Oilfield Service filed a motion for summary judgment. (Id.) Having timely filed their notice of removal within thirty days of receipt of Oilfield Service's summary judgment motion, an "other paper" for purposes of 1446(b), defendants claim they are entitled to an equitable exception which would allow them to satisfy both of the timing 12 requirements found in 1446. Id. at 16.7 Arguing against the application of an equitable exception, plaintiffs counter that while they actively conducted litigation for more than four years in Mississippi state court, defendants were content to let the cases languish. Plaintiffs submit that they completed individual written fact sheets for each defendant and conducted some eighty-eight depositions. (Pls.' Memo. Supp. of Mot. Remand 21, doc. no. 45, 09-mc-103.) Although plaintiffs never made any attempt to hide the fact that Oilfield Service and Mississippi Mud were the only non-diverse parties to the litigation, defendants never questioned or attempted to investigate the legitimacy of their joinder between 2004 and late 2008. (Id.) Plaintiffs further submit that they were continuing to develop this case against all defendants, including Oilfield Service and Mississippi Mud, when the cases were improperly removed to federal court. (See Pls.' Memo. Supp. of Mot. Remand 20-22, doc. no. 45, 09-mc-103.) The Court concludes that the defendants were content to let the cases languish in state court, failing to "use all procedural devices available to facilitate compliance with the Although the plaintiffs assert that Oilfield Service's motion for summary judgment is not an "other paper" that would trigger the 30 day window for removal in 1446(b), they do not make the argument in their motion to remand that removal was not effected within the statutorily mandated 30 days. See (Defs.' Resp. in Opp'n to Remand 16 n.10, doc. no. 58, 09-mc-103.) The Court, therefore, will treat this issue as uncontested. 13 7 one year requirement of 1446(b)." 534 F.Supp.2d at 498. First, defendants apparently never sought discovery which would have established that the two non-diverse defendants were fraudulently joined. Second, despite the exchange of written discovery and the taking of numerous depositions, defendants never examined the basis for liability against the non-diverse defendants. 09-mc-103.) (Pls.' Memo. Supp. of Mot. Remand 21, doc. no. 45, In fact, in a case where the defendants argue that Oilfield Service and Mississippi Mud are so clearly absolved from liability that their joinder constitutes fraud, neither defendant filed a dispositive motion until August of 2008, four years after the cases were commenced. Under the circumstances, it is clear that, at least through lack of diligence, the defendants are partly responsible for the delay in proceedings in state court. Namey, 534 F.Supp.2d at 498. On balance, the defendants have failed to show that the equities tilt in their favor, and application of an equitable exception is not appropriate. 2. Fraudulent Joinder Since the Court will not apply an equitable exception to 1446(b), an evaluation of whether Oilfield Service and/or Mississippi Mud are fraudulently joined is not necessary in the 14 Category I cases.8 Therefore, as to the 354 cases in Category I, plaintiffs motion to remand is granted. B. Category II The sixty-five plaintiffs in Category II originally filed their cases in 2004 as part of the same multi-plaintiff action as the plaintiffs in Category I. Mot. Remand 2, doc. no. 45, 09-mc-103.) (Pls.' Memo. Supp. of Under Mississippi law, however, these sixty-five plaintiffs were dismissed from the action for improper venue. (Id.) These sixty-five cases were then re-filed by plaintiffs in September of 2007, this time in a proper Mississippi venue. The cases were then removed within the (Id.) one year time limitation after they were refiled. As in Category I, removal under 1332 was based on an allegation of fraudulent joinder of non-diverse parties. In their motion to remand, the plaintiffs argue that there is no basis for a finding of fraudulent joinder because Oilfield Service and Mississippi Mud are proper forum defendants and plaintiffs have asserted colorable claims against them. 1. Fraudulent Joinder Whether a party was fraudulently joined to defeat Given that the Court has found that Oilfield Service is not fraudulently joined, see infra, even if the defendants could show diligence, they would be unable to show "flagrant forum manipulation" by plaintiffs. See Namey, 534 F.Supp.2d at 498; see also Lee, 2006 WL 3511160, at *5. 15 8 diversity is a procedural issue. Because the issue of fraudulent joinder is a procedural issue, it is a matter of federal law as interpreted by the Third Circuit. Fraudulent joinder may be found on either factual or legal grounds. In re Avandia, 624 F.Supp.2d at 411. The Third Circuit test for fraudulent joinder requires a finding that "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." (quotation omitted). In assessing the factual basis of a claim, a court may engage in a limited piercing of the pleadings to discover any fraudulent joinder. Boyer, 913 F.2d at 112. The extent of a Abels, 770 F.2d at 32 court's inquiry, however, is "less probing than the factual review a district court conducts in deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)." In re Avandia, 624 F.Supp.2d at 412 (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992). Therefore, a court could remand the case to state court even though "the claim against that party [may] ultimately [be] dismissed [by the state court] for failure to state a claim upon which relief may be granted." In re Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 852). 16 After piercing the pleadings, the federal court must determine that a claim is colorable if it is not "wholly insubstantial or frivolous." Batoff, 977 F.3d at 852. Here, the Court will address each non-diverse defendant in turn to determine whether each was fraudulently joined solely to avoid federal jurisdiction. 2. Mississippi Mud In opposition to the instant motion to remand, defendants argue that Mississippi Mud was fraudulently joined because they were never properly served, and therefore, they were intended to be a nominal forum defendant joined solely to defeat federal jurisdiction. (Defs.' Memo. in Opp'n to Pls.' Mot. Additionally, defendants Remand 21, doc. no. 58, 09-mc-103.) argue that the plaintiffs failed to pursue the proper successor in interest to Mississippi Mud, which is GEO Drilling Fluids, a diverse entity incorporated in Delaware and with a principal place of business in Connecticut. (Id. at 20.) Plaintiffs admit that they were unable to timely serve Mississippi Mud, but submit that it was due to confusing public records related to Mississippi Mud's corporate history. Memo. Supp. of Mot. Remand 28, doc. no. 45, 09-mc-103.) Plaintiffs do not address the fact that GEO Drilling Fluids is the proper successor in interest to Mississippi Mud and would be a diverse defendant. Plaintiffs claim that, once they "learned (Pls.' 17 more about [Mississippi Mud's] corporate history, service was attempted, although it was [attempted] after 120 days." (Id. at 28-9.) Because service was never effected on Mississippi Mud and never attempted on its successor, plaintiffs have not shown a "real intention in good faith to prosecute the action" against Mississippi Mud or its successor. Abels, 770 F.2d at 32. Therefore, a finding of fraudulent joinder as to Mississippi Mud is appropriate. 3. Oilfield Service Unlike Mississippi Mud, Oilfield Service was timely served by the plaintiffs. In opposing remand, the defendants argue that the Court should find that Oilfield Service was fraudulently joined for three reasons. First, they contend that plaintiffs never made a good faith effort to pursue claims against Oilfield Service because plaintiffs never deposed the corporate representative, never required Oilfield Service to respond to interrogatories, and never required Oilfield Service to respond to written requests for document production. (Defs.' Memo. in Opp'n to Pls.' Mot. Remand 18, doc. no. 58, 09-mc-103.) Second, defendants argue that there is no factual basis for plaintiffs' claims against Oilfield Service because Oilfield Service never sold asbestos containing products. (Id.) Third, defendants claim that even if Oilfield Service did sell asbestos 18 products, under Mississippi law, Oilfield Service is absolved of liability by the "innocent seller" doctrine. (Id. at 18.) Under this theory, there would be no legal basis for plaintiffs' claims.9 a. Plaintiffs' Good Faith Effort to Pursue Claims As to the first issue, the Court must determine whether plaintiffs made a good faith effort to pursue their claims against Oilfield Service in these cases. Plaintiffs state that they conducted fact discovery with witnesses and plaintiffs' coworkers regarding Oilfield Service. Remand 21, doc. no. 45, 09-mc-103.) (Pls.' Memo. Supp. of Mot. Furthermore, plaintiffs engaged in settlement conferences and significant pre-trial litigation in federal court in front of Magistrate Judge David R. Strawbridge. Plaintiffs also responded to motions for summary judgment filed by Oilfield Service both before and after the cases were removed to federal court. J., doc. no. 67, 09-mc-103.) Taking all the circumstances together, it appears that plaintiffs have actively conducted litigation against Oilfield Service. Despite the lack of formal discovery requests, (See Pls.' Resp. Mot. Summ. Judge Gex, in the five motions to remand that were ruled on before transfer to the MDL, rejected defendants fraudulent joinder argument. While the instant plaintiffs' cases were not expressly considered by Judge Gex, it is notable that Judge Gex found that Oilfield Service was not fraudulently joined in five similar cases. 19 9 plaintiffs have shown that they attempted to develop their claim against Oilfield Service, at least through informal means. these circumstances, defendants have failed to show that the plaintiffs' joinder of Oilfield Service was in bad faith or clearly fraudulent. b. Factual Basis for Plaintiffs' Claims As to the second issue, the Court must determine whether there is a factual basis for plaintiffs' claims against Oilfield Service. On this issue, there are competing affidavits The Under going to the nature of Oilfield Service's asbestos business. defendants have produced affidavits of the owners of Oilfield Service, Mr. Robert Stone, Sr. and Mr. Robert Stone, Jr. These affidavits state that, to their knowledge, Oilfield Service "never operated as a mud company or mud contractor" which would have sold or supplied asbestos containing drilling additives. (Def. Oilfield Service's Memo. in Opp'n to Pls.' Mot. Remand 7, doc. no. 57, 09-mc-103.) Defendants argue that the Stones' averments negate any factual basis for plaintiffs' claims against Oilfield Service. In response, the plaintiffs call into question the reliability of these affidavits. Plaintiffs point out that, during the relevant period of potential exposure for all plaintiffs (1966-1980), Mr. Stone, Sr. was not the manager of Oilfield Service; Frank Stone, his uncle, was. (Pls.' Memo. 20 Supp. of Mot. Remand 8-9, doc. no. 45, 09-mc-103.) Mr. Stone, Sr. did not take over the day-to-day operations of Oilfield Service until 1980, and had limited knowledge of the business before that. (Id.) Furthermore, plaintiffs state that Mr. Stone, Jr. was between the ages of nine and twenty-two during the relevant time period, and did not even begin full-time work at Oilfield Service until 1981. (Id. at 11.) Plaintiffs also produced the affidavit of John Lee Brown, who worked for Oilfield Service in 1968 and from 19721974. 103.) (Pls.' Memo. Supp. of Mot. Remand 3, doc. no. 45, 09-mcMr. Brown avers that Oilfield Service loaded, unloaded and delivered asbestos-containing products like gaskets, pump packings, and brakes. (Id. at 4.) In refuting the contents of this affidavit, the defendants point out that Mr. Brown is a plaintiff in a pending asbestos personal injury action with Oilfield Service as a defendant. (Def. Oilfield Service's Memo. in Opp'n to Pls.' Mot. Remand 3, doc. no. 57, 09-mc-103.) Considering these competing affidavits, the Court finds that they cancel each other out. The burden of proving that there is no factual bass for the plaintiffs' claims remains, however, with the defendants. Given that the proofs offered negate each other, the Court finds that the defendants have failed to carry the burden of showing that there is no factual basis for plaintiffs' claims against Oilfield Service. 21 c. Legal Basis for Plaintiffs' Claims As to the third issue, the Court must determine whether, under Mississippi law, there is a legal basis for the claims against Oilfield Service. Under Mississippi products liability law, an "innocent seller" is a company that acts as a mere conduit of a product. Miss. Code Ann. 11-1-63 (2004). The plaintiffs in this case assert both failure to warn and design defect claims against numerous defendants in their original complaint. (See Compl. V.) With regard to Oilfield Service, as a distributor of the allegedly asbestos-containing mud, the most relevant claims are the failure to warn actions. Mississippi's innocent seller doctrine states that in a products liability claim for failure to warn: "the manufacturer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller, the manufacturer or seller knew, or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition." Miss. Code Ann. 11-1-63(c)(i) (emphasis added). Succinctly put, the statute requires the party asserting the defense to show that the manufacturer or seller did not know, and could not have known, about the danger that these asbestos products posed to the consumer. Furthermore, the party asserting the defense must also show that the ordinary consumer 22 or user of these asbestos products would have known that the products contained asbestos, and that the asbestos could have harmful health effects. The defendants argue that they are immunized from liability by this statute because they did not have actual or constructive knowledge of the dangers posed by asbestos. (Def. Oilfield Service's Opp'n to Mot. Remand 13, doc. no. 57, 09-mc103.) Therefore, since they had no knowledge, they could not be responsible for warning the user or consumer, regardless of whether such user knew of the dangers or not. (Id.) To rebut Oilfield Service's assertions, plaintiffs point to contemporary literature showing that knowledge of the dangerous health effects of asbestos was widespread in the 1970s, and that there are even studies on the health consequences of asbestos dating back to 1898. doc. no. 67, 09-mc-103.) (Pls.' Resp. Mot. Summ. J. Ex. 9, Therefore, plaintiffs argue that a company like Oilfield Service, which was involved in an industry that used asbestos heavily, would have known of the negative health effects posed by asbestos. (Id.) Furthermore, the plaintiffs rely on this same literature to bolster their argument that the average worker did not know the consequences of asbestos exposure during the relevant time period (1968-1980). (Id.) The plaintiffs further state that they are in the process of gathering more information 23 about warnings that were placed on any products delivered by Oilfield Service, as well as plaintiffs' general knowledge of the dangers of asbestos. Relying on this literature and the testimony of Mr. Brown, plaintiffs aver that it is far from clear that Oilfield Service is entitled to the protections of 11-1-63 of the Mississippi statutes. According to plaintiffs, under the limited inquiry permitted in a fraudulent joinder analysis, they have produced enough evidence to show that plaintiffs' cause of action against Oilfield Service is not "wholly insubstantial or frivolous." See Batoff, 977 F.2d at 852. The defendants The Court agrees with the plaintiffs. have failed to show that either the factual or legal basis of plaintiffs claims are "wholly insubstantial or frivolous." Batoff, 977 F.2d at 852. See This Court is permitted to make only a very limited inquiry beyond the four corners of the complaint, and must apply a standard more deferential to the plaintiff than the standard used in deciding a motion to dismiss. Briscoe, 448 F.3d at 218. In re Applying this standard, the Court determines that the plaintiffs have put forward enough evidence to demonstrate that there is some factual and legal basis for their claims against Oilfield Service. Consequently, the Court finds that the cases in Category II include Oilfield Service as a proper forum defendant. 24 As a result, there is no diversity of citizenship, rendering federal jurisdiction under 1332 unavailable to defendants. Plaintiffs' motion to remand is granted as to the plaintiffs in Category II. C. Category III The twenty-five plaintiffs in Category III were removed based on federal question jurisdiction under OSCLA. motion to remand, plaintiffs make two arguments. In their First, that the only OCSLA-related claims that these plaintiffs have are intertwined with valid Jones Act claims. Therefore, since a Jones Act case that is properly brought in state court is not removable under federal question jurisdiction, these cases must be remanded. 09-mc-103.) (Pls.' Memo. Supp. of Mot. Remand 35, doc. no. 45, Second, plaintiffs contend that the two defendants who originally asserted federal question jurisdiction, Pool Offshore and Nabors, have been dismissed from the case and have withdrawn their removal petitions. (Id.) As to plaintiffs' first argument, defendants counter that these workers, who worked on oil rigs, do not have valid Jones Act claims and therefore, the cases fall squarely within the grant of federal jurisdiction found in OCSLA. (Defs.' Memo. Since in Opp'n to Pls.' Mot. Remand 24, doc. no. 58, 09-mc-103.) the cases do not implicate the Jones Act, the grant of federal jurisdiction found in OCSLA entitles defendants to a federal 25 forum. As to plaintiffs' second argument, defendants argue that federal question jurisdiction is based on plaintiffs' claims, not the status of any defendant, and therefore the fact that Pool Offshore and Nabors have withdrawn their removal petitions is irrelevant. (Id. at 25.) Finally, as an alternative basis for federal jurisdiction, defendants state that even if the Court finds that there is no OCSLA federal question jurisdiction in the Category III cases, there is fraudulent joinder of Mississippi Mud and Oilfield Service, entitling the defendants to 1332 diversity jurisdiction under the arguments above. 25-26.) 1. Applicability of Jones Act to Plaintiffs' Claims The Court agrees with the defendants that OCSLA grants federal jurisdiction over "all cases and controversies arising out of, or in connection with . . . any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf." 43 U.S.C. 1349(b). (Id. at OCSLA defines the term "outer Continental Shelf" as "all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . ." 43 U.S.C. 1301(a). Whether these oil rigs were involved in operations governed by OCSLA, and whether these operations are governed by the Jones Act, is a 26 matter of federal substantive law. Since there is no Third Circuit precedent on these issues, the Court will look to other circuits for guidance on this issue. Plaintiffs' claims seem to fall directly within the grant of authority in OCSLA, since they are based on injuries sustained while working on oil rigs - exploring, developing or producing oil in the subsoil and seabed of the continental shelf. See 43 U.S.C. 1349(b). The Fifth Circuit has held that when a case or controversy arises out of activity that occurred on a rig "affixed" to the Outer Continental Shelf, it is within the proper jurisdiction of the federal courts. Tennessee Gas Pipeline v. The Houston Casualty Ins. Co., 87 F.3d 150, 154 (5th Cir. 1996). oil rigs in question fit within this definition. Additionally, workers on fixed drilling rigs are not on vessels, and therefore do not fall within the jurisdiction of the Jones Act. D.C. Thompson v. Crown Petroleum Corp., 418 F.2d 239, In D.C. Thompson, the Fifth Circuit ruled 240 (5th Cir. 1969). that "the law is well-settled that a stationary, fixed platform, even though erected in coastal water, is not a vessel, and consequently plaintiff was in no sense of the word a seaman when he was injured." Id. at 240. Therefore, under Fifth Circuit law, which the Court finds persuasive, the activities of these plaintiffs do not qualify them as seamen entitled to the Jones Act protections. 27 2. Dismissal of Original Removing Defendants The Court also agrees that federal subject matter jurisdiction is not destroyed because both defendants who initiated removal have since been dismissed. A case arises under federal law if, at the time of removal, the success of the plaintiff's claim depends on the application of federal law. Small v. Kansas City Title and Trust, Co., 255 U.S. 180, 199 (1921); see also Bell v. Hood, 327 U.S. 678, 681-2 (1946). In this case, each defendant consented to the petition for removal filed by Nabors and Pool Offshore. (Defs.' Memo. in Opp'n to Pls.' Mot. Remand 24, doc. no. 58, 09-mc-103.) Whether See fewer than all the removing defendants are no longer in the case makes no difference, so long as one of the remaining defendants opposes the motion to remand. Therefore, the fact that the removing defendants are no longer parties to the action does not disturb federal jurisdiction over plaintiffs' OCSLA claims in this instance.10 See Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1281 (3d Cir. 1993) ("A district court has federal question jurisdiction in any case where a plaintiff with standing makes a non-frivolous allegation that he or she is entitled to relief because the defendant's conduct violated a federal statute."). Therefore, federal subject matter jurisdiction is not based on which parties remain in the case, rather, it is based on the claims asserted by a plaintiff. Since the claims of the 25 plaintiffs in Category III fall squarely within the grant of jurisdiction conveyed in OCSLA, and the defendants timely opposed plaintiffs' motion to remand, the exercise of federal jurisdiction is appropriate. 28 10 This Court finds that plaintiffs' claims properly invoke OCSLA jurisdiction and do not fit within the purview of the Jones Act. Therefore, the motion to remand is denied with respect to the Category III plaintiffs. V. CONCLUSION For the reasons stated above, the motion to remand is granted in the cases in Categories I and II. These cases will be remanded to the appropriate Mississippi state court, because the defendants have failed to show that they are entitled to have their claims adjudicated in a federal forum. The motion to remand in the cases in Category III is denied, as federal question jurisdiction, under OCSLA, is appropriate. An appropriate order follows. 29 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA VARIOUS PLAINTIFFS v. VARIOUS DEFENDANTS ("Oil Field Cases") : : : : : : : : ORDER AND NOW, this 10th day of December 2009, it is hereby ORDERED that plaintiffs' motion to remand (doc. no. 45) is GRANTED in part and DENIED in part. It is GRANTED as to the 354 CONSOLIDATED UNDER MDL 875 CIVIL ACTION NO. 09-MC-103 cases in Category I and as to the 65 cases in Category II listed in Exhibit "B", attached. It is DENIED as to the 25 cases in Category III, listed in Exhibit "C", attached. AND IT IS SO ORDERED. S/ Eduardo C. Robreno EDUARDO C. ROBRENO, J. Exhibit "A" Last Name First Name Mississippi Mississippi State Pennsylvania District District Court Civil Action No. Court Cause No. County Robert E. Winford L. Lloyd G. Donald Wayne H. Melvin Maxie Ray Jones Smith Smith Jones Jones Jefferson Jasper 2006-141-CV3 2006-76 2006-78 2006-140-CV3 2006-135-CV3 2006-18 16-0027 2006-511-CV11 16-0029 16-0028 2006-182 16-0026 2006-515-CV11 2006-134-CV3 16-0030 2006-144-CV3 2006-221 2006-517-CV11 2006-104 09-cv-63215 09-cv-63581 09-cv-63582 09-cv-63217 09-cv-63218 09-cv-63583 09-cv-63584 09-cv-63220 09-cv-63586 09-cv-63585 09-cv-63587 09-cv-63588 09-cv-63203 09-cv-63206 09-cv-63589 09-cv-63205 09-cv-63590 09-cv-63213 09-cv-63591 Aaron Adcock Alexander Allen, Sr. Allred Anderson Anding Ard Arrington Arrington Aultman Baggett Bailey, Jr. Ballard Banks Banks Barnes, Jr. Beard Beasley Willie Glean Jones Milton L. J.C. Carlton Jasper Jasper Smith David Wayne Jasper Lee Owen Jerry D. Daniel M. Johnny C. Tommy E. Julius R. Earnest Jones Jones Jasper Jones Smith Jones Smith Berry, Individually and as Fredna Representative of the Estate of Fred Berry, Deceased Biglan Bishop Boler, Jr. Bond Bounds Boykin Boyles Boyte Boyte Terry Lee Jones 2006-228-CV3 09-cv-63012 Jones 2006-143-CV3 2006-142-CV3 2006-373-CV11 2006-152 2006-102-CV3 2006-156 2006-13 2006-132-CV3 2006-179 2006-424-CV11 09-cv-63196 09-cv-63191 09-cv-63214 09-cv-63592 09-cv-63194 09-cv-63593 09-cv-63595 09-cv-63209 09-cv-63596 09-cv-63013 James Johnny Jones Cleveland D. Jones Louis L. George Bobby G. Buren Dale James George W. Smith Jones Smith Jefferson Jones Smith Brady, Individually and as Kelly Jones Representative of the Estate of Willie Douglas Hancock, Deceased Breland Hiram Jesse Jones Brewer Brister Broadhead Brown Brown Brown Brown Brown Donnie C. David Thomas L. Isaac Smith Smith Smith Smith 2006-495-CV11 2006-129 2006-115 2006-70 2006-71 2006-146-CV3 2006-122-CV3 2006-175 2006-207 09-cv-63210 09-cv-63598 09-cv-63599 09-cv-63600 09-cv-63291 09-cv-63211 09-cv-63207 09-cv-63292 09-cv-63693 James Lavern Jones Kenneth M. Randy K. Billy G. Jones Smith Smith Brown, Individually and as Estelle Ruth Smith Representative of the Estate of Claude Brown, Jr., Deceased Brown, Jr. Thomas Smith Bryant Buckley Burkhalter Burrow Bustin Butler Byrd Byrd Byrd Campbell Campbell Campbell Carney Carr Carruth Carter Harmon J. Herbert Jones Jones 2006-117 09-cv-63601 2006-196 2006-194-CV3 2006-80-CV3 2006-118 2006-214 2006-105 2006-124-CV3 2006-65 2006-408-CV11 2006-96-CV3 2006-34 2006-497-CV11 2006-15 2006-117-CV3 2006-83-CV3 2006-119 2006-120 2006-121 09-cv-63567 09-cv-63204 09-cv-63195 James Donald Smith Daniel G. Michael Dale Gary R. Randy Rex B. Charles R. Jon Douglas E. Paul Henry S. Smith Smith Jones Smith Jones Jones Jefferson Jones Jefferson Jones Jones 09-cv-63568 09-cv-63570 09-cv-63571 09-cv-63189 09-cv-63572 09-cv-63188 09-cv-63190 09-cv-63573 09-cv-63146 09-cv-63574 09-cv-63144 09-cv-63145 09-cv-63575 09-cv-63576 09-cv-63694 John Howard Smith Audley Smith Smith Carter, Individually and as Ollie Mae Representative of the Estate of Jessie L. Carter, Deceased Cavin Jerry W. Jones 2006-196-CV3 09-cv-63139 Clanan Clark Clark Clark Clark Collins Collins Conn Cooley Cooper, Jr. Cothern Coulter Cowart Crager Tim Braxton Robert W. Thomas A. Colin R. George B. Roderick Wayne Danny Thomas Henry S. Jerry L. Charles L. Robert L. Larry Jones Smith Smith Smith Smith Jasper Smith Jones Smith Jones Smith Jones Jones Smith 2006-385-CV11 2006-69 2006-103 2006-208 2006-97 16-0033 2006-122 2006-184-CV3 2006-64 2006-524-CV11 2006-174 2006-148-CV3 2006-422-CV11 2006-142 16-0034 09-cv-63136 09-cv-63577 09-cv-63579 09-cv-63580 09-cv-63578 09-cv-63278 09-cv-63279 09-cv-63131 09-cv-63280 09-cv-63134 09-cv-63281 09-cv-63133 09-cv-63137 09-cv-63282 09-cv-63283 Cummings, Inidividually Henrietta Jasper and as Representative of the Estate of John Cummings, Deceased Cupit James Edward Jones Curtis Curtis, III Daley Wilmer E. Concie David Smith Jones Jones Smith 2006-223-CV3 2006-191 09-cv-63135 09-cv-63284 2006-97-CV3 09-cv-63138 2006-224-CV3 2006-155 09-cv-63173 09-cv-63690 Darty, Individually and as Teresa Representative of the Estate of Charles Edward Darty, Deceased Davis Dearman Dearman Delk Doggett Donald Donald Donald Donaldson DuBose Dunigan Dunigan Dunn Dunn Durr Dvorak Easterling Echols Ellzey Emler, Sr. Eubanks Evans Terry W. James Kenneth L. Garner Willie E. Newt Willard James Dale Kenneth A. Darrius P. Jerry L. Smith Jasper Smith Smith Smith Smith Smith Smith Jones Smith Smith Jones 2006-107 16-0057 2006-172 2006-93 2006-123 2006-96 2006-150 2006-106 2006-188-CV3 2006-72 2006-44 2006-150-CV3 2006-124 2006-527-CV11 2006-209 2006-529-CV11 09-cv-63285 09-cv-63286 09-cv-63287 09-cv-63288 09-cv-63289 09-cv-63264 09-cv-63265 09-cv-63290 09-cv-63172 09-cv-63266 09-cv-63267 09-cv-63176 09-cv-63268 09-cv-63174 09-cv-63686 James Lowrey Smith Vandiver Helen Eugene F. Ernie L. Douglas Rickey Robert W. John Donnie E. Jones Smith Jones Smith Jones Smith Smith Smith Jones 09-cv-63175 2006-128 2006-375-CV11 2006-74 2006-125 2006-151 2006-203-CV3 09-cv-63271 09-cv-63272 09-cv-63155 09-cv-63269 09-cv-63154 09-cv-63270 Evans Evans, Jr. Bennie Jake Jones Joseph C. Jefferson Jones 2006-151-CV3 2006-16 2006-152-CV3 09-cv-63156 09-cv-63273 Ezell, Individually and as Shirley A. Representative of the Estate of Elbert C. Ezell, Deceased Fairchild Kenneth Fairley Farmer Fedrick, Sr. Floyd Floyd Ford, Jr. Fountain Fountain Sr. Foxworth Freeman Gardner Gardner Gardner Bill Lee Charles Kendall Turner Ernest Miles D. Michael V. Sidney R. Larry M. Charles Ralph 09-cv-63017 Jones Jones Smith Smith Jasper Jones Jefferson Jones Jones Jasper Jasper Jones Jones 2006-98-CV3 2006-153-CV3 2006-85 2006-43 16-0036 2006-88-CV3 2006-25 2006-116-CV3 2006-154-CV3 16-0037 16-0017 2006-99-CV3 2006-533-CV11 16-0038 2006-235-CV3 09-cv-63160 09-cv-63159 09-cv-63274 09-cv-63275 09-cv-63277 09-cv-63161 09-cv-63253 09-cv-63163 09-cv-63162 09-cv-63252 09-cv-63251 09-cv-63050 09-cv-63040 09-cv-63250 09-cv-63008 Robert Wayne Jasper Jones Garner, Individually and as James R. Representative of the Estate of Hubert Garner, Deceased Gatlin Gibson Gilmore Richard G. Bobby L. Authur Smith Jones Jones 2006-126 2006-387-CV11 2006-155-CV3 09-cv-63249 09-cv-63049 09-cv-63048 Goldman Grover Audell Jones Smith 2006-157-CV3 2006-161 09-cv-63046 09-cv-63687 Goldman, Individually and Patricia as Representative of the Estate of William Clarence Goldman, Deceased Goode Graham Grantham Graves Green Green Green Greene Gregory Hall Hall Hargon Harris Harris Harris Harris Harvey Hayles Haynes Stanley L. Kenneth David Ted Justin Billy R. Gregory Robert E. Stephen C. Paul Ansler Dale Quincy L. James James E. Smith Jones Jones Jones Smith Smith Jasper Jasper Smith Jones Smith Jasper Jones 2006-178 2006-114-CV3 2006-115-CV3 2006-159-CV3 2006-49 2006-198 16-0039 16-0040 2006-177 2006-192-CV3 2006-165 16-0059 2006-376-CV11 2006-161-CV3 2006-197 2006-159 2006-534-CV11 2006-26 2006-84-CV3 09-cv-63248 09-cv-63045 09-cv-63044 09-cv-63043 09-cv-63247 09-cv-63246 09-cv-63245 09-cv-63244 09-cv-63243 09-cv-63069 09-cv-63242 09-cv-63241 09-cv-63067 09-cv-63066 09-cv-63239 09-cv-63240 09-cv-63064 09-cv-63233 09-cv-63063 Ricky Wayne Jones Willie James Smith Curtis Thad Jerry W. Isaac Smith Jones Jefferson Jones Heathcock Heathcock Heidel Henderson Herrington Herrington Herrington Higginbotham Hitson Hodge Holifield Hollingshead Hollingsworth Hollingsworth Hollomon Holloway Holmes Hoover Howse Huff Hunt Hutto Cecil Nolan John George Don F. James V. Tony Katie Thurman R. W.C. Charles Edward James Billy R. Melvin George H. William L. Donald W. Charles Smith Smith Jones Jasper Smith Smith Smith Jones Smith Smith Jones Jasper Smith Smith Smith Jones Jones Smith 2006-102 2006-199 2006-160-CV3 16-0041 2006-189 2006-94 2006-176 2006-113-CV3 2006-127 2006-160 2006-163-CV3 16-0042 2006-170 2006-213 2006-59 2006-162-CV3 2006-537-CV11 2006-171 2006-538-CV11 2006-95 2006-539-CV11 2006-411-CV11 09-cv-63232 09-cv-63688 09-cv-63061 09-cv-63231 09-cv-63230 09-cv-63229 09-cv-63228 09-cv-63062 09-cv-63263 09-cv-63262 09-cv-63059 09-cv-63261 09-cv-63260 09-cv-63259 09-cv-63258 09-cv-63058 09-cv-63057 09-cv-63257 09-cv-63056 09-cv-63256 09-cv-63053 09-cv-63052 Malcolm Paul Jones Douglas Randy R. Smith Jones Ernest Wayne Jones Hutto Hutto Jackson Jackson Jefcoat Jernigan Johnson Johnson Johnson, Jr. Jones Jones Jordan Jordan Jordan Keyes Keyes Kirk Kirkendall, Sr. Kirkley Kittrell Knight Knotts, Sr. Thomas E. Smith 2006-73 2006-60 2006-210 16-0043 2006-101 16-0062 2006-111 2006-540-CV11 2006-166 16-0045 2006-112 16-0025 2006-425-CV11 16-0046 2006-157 2006-165-CV3 2006-86 2006-100 2006-216 2006-498-CV11 2006-173 2006-104-CV3 09-cv-63255 09-cv-63254 09-cv-63224 09-cv-63225 09-cv-63226 09-cv-63227 09-cv-63238 09-cv-63180 09-cv-63237 09-cv-63235 09-cv-63236 09-cv-63234 09-cv-63182 09-cv-63602 09-cv-63603 Thomas Larry Smith Larry E. Leroy Jackson P. Jimmy D. Dan Wilson Smith Jasper Smith Jasper Smith Paul Bedford Jones Roland James B. Anthony E. James Robert E. Michael H. John E. Joe Jerry Kenneth Dewayne Plummer Billy Ray Tommy J. Smith Jasper Smith Jasper Jones Jasper Smith Jones Smith Smith Smith Jones Smith Jones 09-cv-63202 09-cv-63604 09-cv-63605 09-cv-63606 09-cv-63179 09-cv-63607 09-cv-63200 Lambert Lambert Landrum Langley Lee Leggett Leggett Leonard, Jr. Lewis, Sr. Howard Ralph W. Henry E. Willis F. Michael R. Edward J. Kenneth D. Colon R. William Smith Jefferson Smith Jones Jones Smith Jones Jones Jasper Jasper 2006-67 2006-19 2006-217 2006-168-CV3 2006-400-CV11 2006-92 2006-167-CV3 2006-211-CV3 16-0060 16-0047 09-cv-63689 09-cv-63608 09-cv-63609 09-cv-63165 09-cv-63166 09-cv-63610 09-cv-63167 09-cv-63168 09-cv-63611 09-cv-63691 Lindsey, Individually and as Vanessa Representative of the Estate of Curtis William Lindsey, Deceased Lines David W. Lofton Magee Maples Mashburn, Jr. Mason McAllister McCaffrey McCaffrey McCarty McDonald Jones 2006-545-CV11 2006-166-CV3 2006-547-CV11 2006-35 2006-116 2006-191-CV3 2006-551-CV11 2006-131 2006-200 2006-42 2006-201 09-cv-63169 09-cv-63170 09-cv-63089 09-cv-63613 09-cv-63614 09-cv-63088 09-cv-63085 09-cv-63615 09-cv-63616 09-cv-63617 09-cv-63618 Robert Junior Jones James G. Bobby F. William W. Keith Ecclus Lucious Roger W. Daniel Alfred Jones Jefferson Smith Jones Jones Smith Smith Smith Smith McDonald McFarland McGee McGill McGraw McKenzie McKinney McLain McLain McLain McLain McManus Miller Miller Mills Mills Moak Moore Moore Morgan Morris Ben F. John W. Charles Ronnie William R. Thomas A. Jones Jones Smith Jones Jefferson Jones 2006-172-CV3 2006-136-CV3 2006-218 2006-209-CV3 2006-22 2006-427-CV11 2006-17 2006-89 2006-553-CV11 2006-125-CV3 2006-171-CV3 2006-20 2006-428-CV11 2006-554-CV11 2006-170-CV3 2006-149 2006-183 2006-87 2006-190-CV3 16-0048 2006-110-CV3 2006-90 09-cv-63084 09-cv-63083 09-cv-63619 09-cv-63081 09-cv-63620 09-cv-63080 09-cv-63621 09-cv-63622 09-cv-63079 09-cv-63109 09-cv-63078 09-cv-63623 09-cv-63077 09-cv-63076 09-cv-63075 09-cv-63624 09-cv-63625 09-cv-63626 09-cv-63072 09-cv-63627 09-cv-63110 09-cv-63692 Delton Alford Jefferson Charles Irvin Smith Clifford Jake W. Robert D. James Ray Loranzie Michael D. Bobby R. Owen L. Glen Jones Jones Jones Jefferson Jones Jones Jones Smith Smith William Leon Smith Willie E. Otis L. Robert E. Jones Jasper Jones Smith Mosley, Individually and as Neena Representative of Lee George Mosley, Deceased Mullins Nations Neely, Sr. Nelson Newell Nichols Nickey Nugent Odom Oliver Pacey Palmer Palmer Parker Parnell Peak Perkins Phillips Pittman Pitts Pitts Pitts Hugh W. Jimmy L. Michael K. James Isaac Billy D. Cecil J. Shelby Gary L. Rickey L. Gene W. Joe L. Morgan T. Jeffrey B. Jones Jones Smith Jones Jones Smith Jones Claiborne Jones Smith Smith Jones Jones Smith 2006-556-CV11 2006-558-CV11 2006-169 2006-133-CV3 2006-560-CV11 2006-188 2006-173-CV3 2006-34 2006-378-CV11 2006-180 2006-211 2006-561-CV11 2006-200-CV3 2006-181 16-0015 2006-430-CV11 2006-148 2006-121-CV3 2006-61 2006-47 2006-176-CV3 2006-141 09-cv-63070 09-cv-63183 09-cv-63629 09-cv-63184 09-cv-63185 09-cv-63630 09-cv-63186 09-cv-63631 09-cv-63187 09-cv-63632 09-cv-63633 09-cv-63149 09-cv-63148 09-cv-63634 09-cv-63635 09-cv-63100 09-cv-63636 09-cv-63099 09-cv-63637 09-cv-63638 09-cv-63098 09-cv-63639 Phillip Lynn Jasper William H. Clifton A. Frazier M. Alfred J. Michael C. Luther Sam Jones Smith Jones Smith Smith Jones Smith Pitts Pitts, Individually and as Representative of the Estate of Homer Earl Pitts, Deceased Plumer Ernest Porter Powell Powell Vandol Jasper Wayne "V.W. " Patricia Gayle Jones 16-0049 09-cv-63640 2006-174-CV3 09-cv-63009 Jones Jasper Jones Jones Jones 2006-449-CV11 16-0050 2006-108-CV3 2006-177-CV3 2006-501-CV11 09-cv-63097 09-cv-63641 09-cv-63096 09-cv-63095 09-cv-63006 Carl O. Herbert K. William Hinton Presley, Individually and as Alice Representative of the Estate of William Pressley, Deceased Preston Albert Price Price Price Prine Quick Ratliff Reed Reid Rigney, Jr. Robbins Robbins, Sr. Roberts Gary L. George R. Mark Charlie W. Billy Jason C. Jones Jefferson Jones Jones Smith Jones Jones 2006-416-CV11 2006-21 2006-502-CV11 2006-562-CV11 2006-40 2006-403-CV11 2006-563-CV11 2006-29 2006-179-CV3 2006-45 2006-418-CV11 2006-185 16-0051 09-cv-63093 09-cv-63642 09-cv-63092 09-cv-63091 09-cv-63696 09-cv-63201 09-cv-63108 09-cv-63643 William Steve Jefferson James D. Charles L. Jones Smith 09-cv-63106 09-cv-63645 09-cv-63105 09-cv-63646 09-cv-63648 Pearl Lavern Jones Donald Johnny W. Smith Jasper Rodgers Rollins Rollins Runnels Russell Russell Russell Russell Rutland Sanders Saul Saul, Jr. Julius E. Jefferson 2006-27 16-0024 2006-565-CV11 2006-482-CV11 2006-112-CV3 2006-199-CV3 2006-140 2006-178-CV3 2006-139 2006-567-CV11 2006-181-CV3 2006-120-CV3 2006-419-CV11 09-cv-63649 09-cv-63650 09-cv-63103 09-cv-63102 09-cv-63151 09-cv-63150 09-cv-63651 09-cv-63152 09-cv-63652 09-cv-63039 09-cv-63037 09-cv-63036 09-cv-63004 David Clinton Jasper Tommy Carl A. Jones Jones James Lowery Jones Larry William H. David P. Billy Joe Jones Smith Jones Smith Charles David Jones J.M. Tom M. Jones Jones Jones Sauls, Individually and as Betty Representative of the Estate of Kenneth L. Sauls, Deceased Scarbrough Arthur L. Short Simmons Sims Sims Sims, Sr. Smith Smith Jesse James Thomas E. Charles R. Gary B. John W. Charles Ervin Jasper Jones Jones Jones Jefferson Jasper Jones Smith 16-0065 2006-225-CV3 2006-405-CV11 2006-89-CV3 2006-30 16-0052 2006-389-CV11 2006-219 09-cv-63653 09-cv-63035 09-cv-63034 09-cv-63033 09-cv-63654 09-cv-63655 09-cv-63032 09-cv-63656 Smith Smith Smith Smith Smith Smith, Jr. Smith, Sr. Speights Spence Spiars Spiers Spradley Spradley Stampley Stanley Willis T. Charles R. Elmer H. Kelcie Dale Smith Jones Smith Jones 2006-80 2006-231-CV3 2006-66 2006-138-CV3 16-0023 2006-379-CV11 2006-210-CV3 2006-168 2006-406-CV11 2006-215 2006-505-CV11 2006-119-CV3 16-0016 2006-32 2006-33 2006-559-CV11 09-cv-63659 09-cv-63030 09-cv-63697 09-cv-63029 09-cv-63658 09-cv-63028 09-cv-63027 09-cv-63660 09-cv-63026 09-cv-63661 09-cv-63025 09-cv-63024 09-cv-63662 09-cv-63663 09-cv-63664 09-cv-63015 Vince Edward Jasper Joe Darrell D. James C. Jones Jones Smith George Ross Jones Bobby Joseph Joseph Stephen V. Charlie A. Smith Jones Jones Jasper Jefferson David Foster Jefferson Jones Stewart, Individually and as Frances Representative of the Estate of Floyd L. Nettles, Deceased Stinson Street Strickland Sullivan Sykes Walter E. William J. Melton L. Corbit Dodd Mitchell Jones Smith Smith Jones Jones 2006-396-CV11 2006-62 2006-138 2006-198-CV3 2006-180-CV3 09-cv-63021 09-cv-63665 09-cv-63666 09-cv-63020 09-cv-63019 Tageant Tanner Tanner, Jr. Tatum Louis Daryl Ray Edward William A. Jefferson Jones Smith Jones Jones 2006-09 2006-506-CV11 2006-195 2006-380-CV11 2006-543-CV11 09-cv-63667 09-cv-63116 09-cv-63668 09-cv-63117 09-cv-63014 Taylor, Individually and as Lisa Representative of the Estate of Clarence Kelly, Sr., Deceased Teachey Terrell Thompson Jerry L. Leroy Joe R. Jones Jones Jones 2006-571-CV11 2006-572-CV11 2006-489-CV11 2006-381-CV11 09-cv-63115 09-cv-63114 09-cv-63113 09-cv-63003 Thompson, Individually and Dimple I. Jones as Representative of the Estate of Marvin Thompson, Deceased Toney Lester Leroy Jones Townsend Tucker Turner Upshaw Upshaw Upton Wade Wagley Wallace Waller Larry W. William Clyde James M. Smith Smith Jones 2006-577-CV11 2006-130 2006-79 2006-197-CV3 2006-99 2006-98 2006-578-CV11 2006-110 2006-109 2006-86-CV3 2006-397-CV11 09-cv-63112 09-cv-63670 09-cv-63671 09-cv-63111 09-cv-63672 09-cv-63673 09-cv-63199 09-cv-63674 09-cv-63675 09-cv-63129 09-cv-63128 Dewey WayneSmith Jerry Joel P. Robert Earl Billy J. James C. Pauline Smith Jones Smith Smith Jones Jones Walley Ward, Jr. Watts Weeks Weir, Jr. Wells, Sr. West West West West Westerfield White White White, Jr. White, Sr. Wilkinson Williams Williams Wise Yelverton, Jr. James R. Henry James E. Johnny R. Freddie Bobby G. Charlie E. Dalton L. Phillip Thomas E. Earl Jones Jones Jones Jasper Smith Smith Jasper Smith Jones Jasper Jasper 2006-91-CV3 2006-382-CV11 2006-508-CV11 16-0055 2006-220 2006-137 16-0053 2006-41 2006-383-CV11 16-0054 16-0022 2006-108 2006-390-CV11 2006-92-CV3 2006-136 2006-158 2006-579-CV11 2006-26-CV3 2006-82 2006-93-CV3 09-cv-63126 09-cv-63127 09-cv-63123 09-cv-63676 09-cv-63677 09-cv-63678 09-cv-63679 09-cv-63680 09-cv-63122 09-cv-63681 09-cv-63682 09-cv-63683 09-cv-63121 09-cv-63120 09-cv-69684 09-cv-69685 09-cv-63119 09-cv-63118 09-cv-63698 09-cv-63197 Larry James Smith Randy J. J.B. James E. Reba N. Jones Jones Smith Smith David Griffin Jones Mathyngale "Buck" Peter John D. Jones Smith Jones Exhibit "B" Last Name First Name Mississippi Mississippi State Pennsylvania District District Court Civil Action No. Court Cause No. County David Jones 2007-102-CV9 09-cv-63216 Robert E. Gene B. Mozell Edward William M. Jimmie L. David C.N. Fred William E. Vernon Alford B. David Herman Larry Charles T. Jones Jones Jones Jones Jones Jones Jones Jefferson Jefferson Jones Smith Jones Jones Jones Jones Jones Jones 2007-104-CV9 2007-105-CV9 2007-106-CV9 2007-110-CV9 2007-115-CV9 2007-116-CV9 2007-117-CV9 2007-101 2007-98 2007-119-CV9 2007-259 2007-125-CV9 2007-126-CV9 2007-129-CV9 2007-130-CV9 2007-131-CV9 2007-136-CV9 09-cv-63219 09-cv-63221 09-cv-63222 09-cv-63223 09-cv-63208 09-cv-63193 09-cv-63192 09-cv-63594 09-cv-63597 09-cv-63011 09-cv-63569 09-cv-63141 09-cv-63140 09-cv-63143 09-cv-63130 09-cv-63132 09-cv-63016 Adcock Ard Atwood Aultman, Sr. Bacon Beard Bevis Boleware Boykin Brent Brownell Burrell Chapman Chipmon Collins Collins Cook Davis, Individually and Stephanie as Representative of the Estate of Don M. Davis, Deceased Easterling Echols Evans Feduccia Sherman Charles Jacob Joe Jones Jones Jones Jones Jones 2007-140-CV9 2007-141-CV9 2007-142-CV9 2007-144-CV9 2007-145-CV9 09-cv-63153 09-cv-63157 09-cv-63158 09-cv-63276 09-cv-63018 Butler, Individually and Krysten as Representative of the Lambert Estate of Bennie Floyd, Deceased Foster Gaines, Jr. Glass Gregory Gunter Hamrick, Sr. Harrison Hodges Howard Hudson, III Leonard W. Eddie Lee Melvin R. Rudolph Jerrell J. Charles Ex Earl Richard Johnny Ompy L. Jones Jones Jones Jones Jones Jones Jones Jones Jones Jones Jefferson 2007-146-CV9 2007-147-CV9 09-cv-63164 09-cv-63051 2007-149-CV9 09-cv-63047 2007-151-CV9 09-cv-63042 2007-152-CV9 09-cv-63041 2007-155-CV9 09-cv-63068 2007-157-CV9 09-cv-63065 2007-161-CV9 09-cv-63060 2007-162-CV9 09-cv-63055 2007-163-CV9 2007-100 09-cv-63054 09-cv-63695 Ingle, Individually and Audrey Nell as Representative of the Estate of W.C. Ingle, Deceased Richardson, Individually Judith and as Representative of the Estate of Troyce Johnson, Deceased Jordan Johnny Jones 2007-165-CV9 09-cv-63005 Jones 2007-166-CV9 09-cv-63181 Kennedy Kerben, Jr. Lofton Madison Ross A. Sidney L. Robert Winston Jones Jones Jasper Jones 2007-167-CV9 2007-168-CV9 17-0065 09-cv-63177 09-cv-63178 09-cv-63612 2007-171-CV9 09-cv-63090 Mahaffey, Jr. Mayhugh, Jr. McFarland Alton J. Kenneth Mark Jones Jones Jones Jones 2007-172-CV9 2007-175-CV9 2007-177-CV9 2007-178-CV9 09-cv-63087 09-cv-63086 09-cv-63082 09-cv-63010 McNair, Individually Betty and as Representative of the Estate of L.B. McNair, Deceased Mire, Sr. Moak Motley Murray, Sr. Patton Bobby W. Dennis G. Vincent Bobby J.E. Jones Jones Jones 2007-179-CV9 2007-180-CV9 2007-184-CV9 09-cv-63074 09-cv-63073 09-cv-63071 09-cv-63628 09-cv-63147 09-cv-63007 Claiborne 2007-165 Jones Jones 2007-188-CV9 2007-189-CV9 Pevey, Individually and Chrystelle as Representative of the Estate of James E. Pevey, Deceased Prather Ramage Revette, Jr. Roberts Rollins Daniel L. Jackie D. Harvey Richard Jimmy Larry Jessie Jones Jones Smith Jasper Jones 2007-192-CV9 2007-197-CV9 2007-260 17-0064 2007-200-CV9 09-cv-63094 09-cv-63107 09-cv-63644 09-cv-63647 09-cv-63104 Rushing Sasser, Jr. Smith Smith Stephens Stewart Thornton Usry Warnock Watkins Mitchell R. Aaron Charles C. Mark Joe Timothy L. Harold D. Kenneth Jerry L. Ted Jones Jones Jones Jefferson Jones Jones Jefferson Jones Jones Jones 2007-201-CV9 2007-203-CV9 2007-205-CV9 2007-104 2007-209-CV9 2007-210-CV9 2007-103 2007-217-CV9 2007-219-CV9 2007-220-CV9 09-cv-63101 09-cv-63038 09-cv-63031 09-cv-63657 09-cv-63023 09-cv-63022 09-cv-63669 09-cv-63198 09-cv-63125 09-cv-63124 Exhibit "C" Last Name First Name Mississippi Mississippi State District District Court Court Cause No. County Clinton L. Jones 2006-407-CV11 Harvey E. Jones 2006-519-CV11 Deloice Jones 2006-520-CV11 Joseph Jones 2006-394-CV11 Patrick Jones 2006-525-CV11 Willie Lee Jones 2006-409-CV11 Dan Mack Jones 2006-526-CV11 Rolland Jones 2006-410-CV11 George D. Jones 2006-374-CV11 Louie T. Jones 2006-464-CV11 Johnny W. Jones 2006-90-CV3 Henry A. Jones 2006-468-CV11 Daniel Jones 2006-94-CV3 Archie A. Smith 16-0056 Ralph T. Jones 2006-345-CV9 Eliel K. Jones 2006-555-CV11 Joseph Jones 16-0018 Lonnie Jones 2006-414-CV11 Ted L. Jones 2006-415-CV11 Brandon Jones 2006-206-CV3 Kaye Dale F. Jones 2006-85-CV3 Ray C. Jones 2006-417-CV11 Cleophus Jones 2006-75 Tony N. Jones 2006-573-CV11 Terry Jones 2006-491-CV11 Pennsylvania Civil Action No. Brady Broom Bullock Crawford Curd Daniels Daughdrill Dearman Dixon Emler Faust Herring (deceased) Livingston Lord, Sr. McPhail Mounteer, Sr. Newsom Newsom Piner Polk Polk Rawls Smith (deceased) Thomas Wallace 5:08-cv-87071-ER 5:08-cv-87069-ER 5:08-cv-87072-ER 5:08-cv-87080-ER 5:08-cv-87083-ER 5:08-cv-87068-ER 5:08-cv-87081-ER 5:08-cv-87070-ER 5:08-cv-87077-ER 5:08-cv-87084-ER 5:08-cv-85894-ER 5:08-cv-87079-ER 5:08-cv-85987-ER 5:08-cv-87030-ER 5:08-cv-87048-ER 5:08-cv-87073-ER 5:08-cv-87076-ER 5:08-cv-87031-ER 5:08-cv-87078-ER 5:08-cv-85986-ER 5:08-cv-85985-ER 5:08-cv-87075-ER 5:08-cv-87032-ER 5:08-cv-87082-ER 5:08-cv-87074-ER

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