Plaintiff’s Motion for Costs, Fees, Expenses, and Sanctions Denied but Granted as to Remand for Untimely Removal U.S. District Court for the Eastern District of Missouri, Eastern Division, October 27, 2016

The plaintiff brought this suit against numerous defendants including Ford Motor Company. She alleged that the decedent developed and passed from mesothelioma as a result of exposure to dust from products manufactured, sold, and distributed while Mr. Bristol worked as a mechanic at a Ford dealership from 1972-1989.

Ford removed the case a day after trial began and well over a year from the date the complaint was filed. The plaintiff moved for sanctions and to remand stating that Ford failed to obtain consent of the remaining defendants and that the removal was untimely. Ford contended that the plaintiff acted in bad faith to prevent removal. Further, Ford argued that it did not need consent to remove because it was the last defendant in this action. In support, Ford stated that the plaintiff argued in its response to a motion to dismiss that the plaintiff had resolved or dismissed her claims against every defendant other than Ford. For that reason, Ford took the position that sanctions were unwarranted. The court agreed that Ford was not required to obtain consent from the other defendants. First, consent from dismissed defendants is not required. Second, the plaintiff’s statement in her October 24, 2016 response to the motion to dismiss “was effective to establish that Ford was the only remaining defendant in this action.” However, Ford did not establish that the plaintiff acted in bad faith to prevent removal according to the court. Primarily, Ford relied on the fact that the plaintiff had not prosecuted her claims against co-defendant Mendenhall. Specifically, Ford pointed out that the plaintiff had not sought discovery from Mendenhall and that the plaintiff offered a “product identification stipulation” to Mendenhall during a deposition. Relying on the Aguayo case, the court was not persuaded as the evidence showed that Mendenhall and the plaintiff were in negotiations to settle throughout the course of the litigation. Further, the court noted that although discovery was not served upon Mendenhall “Plaintiff provided a plausible explanations for the absence of documented discovery from Mendenhall.” Here, the plaintiff received the discovery they needed from Mendenhall in a different case. Ultimately, the court found Ford’s removal untimely.

As for the plaintiff’s motion for costs, sanctions and fees, the court found that Ford’s removal was not unreasonable. In particular, the court noted that no depositions had been noted between Mendenhall and no response was filed by the plaintiff to Mendenhall’s motion for summary judgment. Accordingly, the motion for sanctions was denied.

Read the full decision here.

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