Proper Removal Based Upon Diversity Jurisdiction When Clearly No Case Against Non-Diverse Defendant United States District Court, Eastern District of Louisiana, August 28, 2018
LOUISIANA — The plaintiff Victor Michel filed a personal injury suit in Louisiana state court alleging that his mesothelioma was caused by exposure to asbestos during his work as a parts delivery driver, truck mechanic, and generator service technician. The defendant Cummins, Inc. removed the matter to federal court after receiving a deposition transcript of plaintiff that arguably demonstrated that defendant and Louisiana resident, Taylor-Seidenbach, Inc. (TSI), was fraudulently joined to defeat diversity jurisdiction. The plaintiff moved to remand asserting a lack of diversity jurisdiction, which the court denied.
The plaintiff argued that TSI was properly joined and that Cummins was beyond the 30 day “other paper” deadline for removal. The court determined that the case was beyond the discovery deadline, that no experts had offered commentary on the types of products TSI produced, and that no witnesses on plaintiff’s witness lists could establish liability for TSI. An affidavit from another case could not be considered to demonstrate TSI’s liability, as the court deemed that it would likely be inadmissible and that it did not establish that the plaintiff had any exposure to TSI products. The court further determined that the 30 day “other paper” clock did not start to run on the date of the plaintiff’s deposition or receipt of his deposition transcript. The court concluded that the last opportunity for the plaintiff to obtain evidence to demonstrate a reasonable possibility of recovery against TSI was at the deposition of their expert Dr. Brent Staggs, and that the 30 day clock began to run on receipt of the transcript from his deposition. Thus the plaintiff’s motion to remand was denied.