Case Remanded Based Upon Lack of Fraudulent Joinder

SOUTH CAROLINA — The plaintiff filed a lawsuit in the Court of Common Pleas for Darlington County, South Carolina, alleging that Bertila Boyd-Bostic suffered from mesothelioma due to asbestos exposure in the 1980s. On March 2, 2018, a Third Amended Complaint was filed, alleging that Johnson & Johnson, Imerys Talc America, Rite Aid of South Carolina and others were liable for Ms. Boyd-Bostic’s mesothelioma, based upon her use of baby powder. The recently-joined defendants removed the case on April 6, 2018.

The plaintiff filed an emergency motion to remand, arguing that there was incomplete diversity between the parties due to Rite Aid of South Carolina’s citizenship in that state. Removing the defendants countered by arguing that Rite Aid of South Carolina was improperly named, and that the correct entity was EDC Drug Stores, which did not have South Carolina citizenship. The court interpreted this argument as one based upon the fraudulent joinder doctrine. The plaintiff offered evidence that Ms. Boyd-Bostic used baby powder purchased at a Rite Aid in Hartsville, South Carolina as early as 1987, and additional evidence that EDC Drug Stores was not incorporated until 1997. Therefore, the plaintiff demonstrated at least a plausible claim against Rite Aid of South Carolina. The court accordingly ruled that the party was not fraudulently joined and remanded the case to state court.

Read the full decision here.