Asbestos Action Remanded Based on Allegations Against Insulation Defendant

U.S. District Court for the Southern District of Florida, August 31, 2021

Plaintiffs David and Dorothy Bateman commenced this lawsuit in Broward County, Florida, alleging that Mr. Bateman developed mesothelioma as a result of his exposure to asbestos-containing products while serving in the British Royal Navy from 1967 to 1975. The defendants filed a notice of removal pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In response, the plaintiffs filed a motion to remand, alleging that the notice of removal was procedurally defective and that the defendants had not established that the plaintiffs’ joinder of defendant Bigham Insulation & Supply was fraudulent.

The federal court considered that district courts have original jurisdiction of cases only when a controversy involves either a question of federal law or where the amount in controversy exceeds the sum or value of $75,000 and is between citizens of different States.” 28 U.S.C. §§ 1331-1332(a)(1).

The party that removes a state court action to federal court bears the burden of establishing the existence of federal jurisdiction. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). When a court evaluates the appropriateness of removing a case to federal court, it strictly construes the right to remove and applies a general ‘presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.’ Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013).

Diversity jurisdiction requires complete diversity: every plaintiff must be diverse from every defendant. Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).Therefore this case must be remanded if there is not complete diversity between the parties, or if one of the defendants is a citizen of the state in which the suit is filed. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). However, it is improper for a plaintiff to add a non-diverse defendant solely to defeat federal diversity jurisdiction, known as a ‘fraudulent joinder.’ To establish fraudulent joinder, the removing party must prove that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court. Stillwell, 663 F.3d at 1332. The Eleventh Circuit has held that the determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff’s pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties. Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005). All questions of fact must be evaluated in the light most favorable to the plaintiff. Id. at 1323, see also Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). However, when the defendants have submitted affidavits that are undisputed by the plaintiff, the court cannot resolve facts in the plaintiff’s favor based solely on the unsupported allegations in the plaintiff’s complaint.

In this case, the defendants admit that removal was not proper pursuant to 28 U.S.C. § 1441 (b)(2) at the time of the initial pleadings, and the defendants concede in their notice of removal that defendant Bigham is a citizen of Florida. The defendants do not argue that the plaintiffs have fraudulently pled jurisdictional facts with respect to Bigham. Therefore, the second prong of the fraudulent joinder test is not at issue. Instead, the defendants argue that Mr. Bateman’s deposition reveals that the plaintiffs cannot establish a cause of action against Bingham, and that Bingham was fraudulently joined. However, the court determined that the plaintiffs’ complaint contains numerous allegations to plausibly state a claim against Bigham. There was no indication that the plaintiffs’ claims against Bigham are overtly “fraudulent or frivolous,” and there is no indication that the plaintiffs cannot possible recovery from against Bingham. Accordingly, the court granted the plaintiffs’ motion for remand to state court.

Read the full decision here.