In this case, the plaintiff alleged exposure through his father’s work close from 1953 through the 1970s. The plaintiff’s father worked at the Exxon Baton Rouge facility. The plaintiff also claimed exposure to asbestos as an adult while working as a carpenter at various residential construction sites and as a contractor at Exxon between 1965 through 1978. Defendant Exxon removed the action to federal court based on diversity with the consent of defendants Georgia-Pacific, LLC and Union Carbide Corporation . The plaintiff subsequently moved to remand.
The court granted the remand. In its analysis, the court stated: “The removing party’s burden of proving improper joinder is ‘heavy.’ In determining the validity of an allegation of improper joinder, the district court must construe factual allegations, resolve contested factual issues, and resolve ambiguities in the controlling state law in the plaintiff’s favor.’ In Smallwood v. Illinois Central Railroad Co., the Fifth Circuit articulated two avenues for determining whether a plaintiff has a reasonable basis for recovery under state law. First, ‘[t]he court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.’ Second, if the plaintiff has stated a claim and, as a result, survives a Rule 12(b)(6) challenge, but ‘misstated or omitted discrete facts that would determine the propriety of joinder,’ the court may ‘pierce the pleadings and conduct a summary inquiry.’ ‘[A]lthough the type of inquiry into the evidence is similar to the summary judgment inquiry, the district court is not to apply a summary judgment standard but rather a standard closer to the Rule 12(b)(6) standard.’ ‘The district court must also take into account ‘the status of discovery’ and consider what opportunity the plaintiff has had to develop its claims against the non-diverse defendant.’”
The court found that plaintiff’s claims against Taylor-Seidenbach, Inc., a non-diverse defendant, did not fall under improper joinder. In support of his motion to remand, the plaintiff attached documents that supported his claims against Taylor-Seidenbach that it was seller, distributor, and installer of asbestos-containing products in Louisiana during the time period the plaintiff claims asbestos exposure. Regarding the status of discovery, the court held: “This action was filed in state court on August 25, 2015 and removed to federal court very shortly thereafter on October 21, 2015. It is likely that very little discovery has taken place to date, other than the taking of the Plaintiff’s deposition for perpetuation purposes. Due to the fact that discovery remains in its infancy, the Court finds it appropriate to remand this case to state court, where the Plaintiff will have the opportunity to further investigate and develop his claims against Taylor-Seidenbach.”