MONTANA — Four plaintiffs originally filed suit in the Eighth Judicial District of Cascade County Montana alleging exposure to asbestos in Libby, Montana. Defendant BNSF removed the case to federal court on diversity of citizenship grounds, and alleged that BNSF’s managing agent John Swing was fraudulently joined. The court reviewed the Magistrate Judge’s Findings and Recommendations following a November 2017 hearing, and remanded all four cases to state court.
Each of the four plaintiffs named 80-year-old Montana resident John Swing in their complaints, and gave a two sentence description of his role with BNSF. Swing allegedly acted as a supervisory agent for BNSF in Libby Montana from 1973 to 1984, with safety concerns falling in his purview. The allegations of the complaints were the same as to Swing and BNSF: that they failed to inquire, study and evaluate the dust hazard to human health, that they failed to take measures to prevent toxic dust from collecting upon and escaping BNSF’s property, and that they negligently failed to warn the plaintiffs of the true nature of the hazardous effects of the dust.
The Magistrate Judge found that Montana law allowed employees to be named as individuals when allegations existed against them personally, and that courts within the district have “deemed it sufficient to hold the agent personally liable if the agent either ignored warnings, or participated in the principal’s tortious conduct.” The defendants argued that. Swing owed no duty to the plaintiffs, and that any alleged negligence committed by Swing occurred within the course and scope of his employment. The reviewing court determined that the plaintiffs’ complaints sufficiently alleged claims for relief against Swing, stating that “(t)he Court must look at whether the plaintiff truly possesses a cause of action against the alleged fraudulent defendant, as opposed to evaluating whether the alleged fraudulent defendant could propound a defense to an otherwise valid cause of action.” The reviewing court adopted the Findings and Recommendations of the Magistrate Judge in full and remanded all four cases, but denied a request for attorneys’ fees by determining that the removal was objectively reasonable.