U.S. District Court for the District of Oregon, Medford Division, March 23, 2021
The plaintiff’s third amended complaint alleged that the decedent Bill Jack Sheldon was exposed to airbone asbestos fibers, both by directly working with asbestos and asbestos-containing materials and by working in the vicinity of other workers handling asbestos products between 1972 and 1994 while he was employed in a plywood/veneer mill in Medford, Oregon. At the time of his death, the decedent was a resident of the U.S. Virgin Islands. Mr. Sheldon is survived by his wife, plaintiff Pamela Gale Sheldon, who is the personal representative of Mr. Sheldon’s Estate.
Mrs. Sheldon is a resident of the U.S. Virgin Islands. Mr. Sheldon is also survived by his son, Ryan Sheldon, who is a resident of Oregon. On September 9, 2019, the case was removed to federal court by Defendant Cleaver Brooks. On October 29, 2020, the plaintiff filed their Third Amended Complaint, which names Cleaver-Brooks, USNR, Wellons, and CH Murphy/Clark-Ullman, Inc. as defendants. Murphy is an Oregon corporation with its principal place of business in Oregon. Cleaver-Brooks is a Delaware corporation with its principal place of business in Georgia. USNR is a Delaware limited liability company with its principal place of business in Washington. Wellons is an Oregon corporation with its principal place of business in Washington.
The plaintiff asserts that the addition of Murphy, an Oregon corporation, defeats complete diversity and requires remand of this case to the Multnomah County Circuit Court. or purposes of diversity jurisdiction under 28 U.S.C. § 1332 and removal under 28 U.S.C.§ 1441, “the legal representative of the estate of a the decedent shall be deemed to be a citizen only of the same State as the the decedent.” 28 U.S.C. § 1332(c)(2). In this case, the record indicates that Mr. Sheldon was a resident of the U.S. Virgin Islands at time of his passing, rather than Oregon.
The plaintiff does not appear to dispute Mr. Sheldon’s residency at the time of his death. The plaintiff, who is the personal representative of Mr. Sheldon’s Estate, alleges that she is also a resident of the U.S. Virgin Islands. The plaintiff contends that because Mr. Sheldon’s son Ryan Sheldon is a potential beneficiary of Mr. Sheldon’s estate and a resident of Oregon, The plaintiff should also be understood to be a resident of Oregon with respect to the plaintiff’s claim for wrongful death under ORS 30.020.
In her motion to remand, the plaintiff asserted that Mr. Sheldon was a citizen of Oregon, but appears to abandon this claim in her Reply, asserting instead that Mr. Sheldon’s son is a citizen of Oregon. However, the court notes that Ryan Sheldon is not a party to this case. The only plaintiff is Mrs. Sheldon, who is a resident of the U.S. Virgin Islands, individually and in her capacity as the personal representative of the Estate of Mr. Sheldon, who was a resident of the U.S. Virgin Islands at the time of his death. Moreover, there is no evidence that Ryan Sheldon could even maintain a wrongful death action. The court further noted that under Oregon’s wrongful death statute, when unlawful act leads to the death of a person, only the personal representative of the estate can bring an action for wrongful death.
Consequently, the court denied the plaintiff’s motion to remand.