Nebraska plaintiffs filed an action in Missouri state court after the decedent died of mesothelioma. After five defendants remained, defendant Volkswagen filed for removal based upon diversity jurisdiction, and alleged that the defendant, J.P. Bushnell Packing Supply Company, a Missouri corporation, was fraudulently joined. This matter was before the court sua sponte to determine whether jurisdiction existed. Finding no jurisdiction, the court remanded.
Any doubts about the propriety of removal are resolved in favor of remand. In diversity jurisdiction, complete diversity exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship. However, an action may not be removed if any of the parties in interest properly joined and served as defendants are citizens of the State in which such action is brought. Volkswagen argued that because J.P. Bushnell was fraudulently joined, its Missouri citizenship did not defeat diversity jurisdiction. Volkswagen based this argument on the fact that J.P. Bushnell had not filed any pleadings or other documents, had not appeared at hearings or depositions, and plaintiffs never sought default. However, the court, in remanding this case, stated: “Volkswagen cites no support for the novel proposition that a defendant’s action or inaction proves a plaintiff fraudulently joined that defendant. Nor does Volkswagen offer authority holding that, where a plaintiff has pled a facially legitimate cause of action, fraudulent joinder is demonstrated by the plaintiff’s conduct vis-à-vis that defendant during the litigation. Though plaintiffs’ inaction with respect to J.P. Bushnell ultimately may affect their success against that defendant, it is a far cry from proving ‘no reasonable basis in fact and law exists to hold the company liable.”