U.S. District Court for the Eastern District of Louisiana
In June 2019, the plaintiff filed a lawsuit against multiple defendants alleging that he developed asbestos-related lung cancer. In December 2020, defendant Exxon Mobil removed this matter to the U.S. District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1332. One month later, the plaintiff filed a motion to remand the matter to the Civil District Court of Orleans Parish.
First, the plaintiff contended that Exxon’s removal was untimely as Exxon filed its notice of removal five months after the one-year deadline to remove under § 1332. Exxon argued that the plaintiff acted in bad faith by withholding a settlement with a co-defendant, and Exxon would have timely filed its notice to remove had it been aware of the settlement. The plaintiff asserted that the settlement made no difference as claims against a non-diverse defendant, Taylor Seidenbach, Inc. were still pending. Pursuant to Barra v. Rayborn Trucking, “[i]n determining whether a plaintiff has acted in bad faith to prevent removal, ‘the question is what motivated the plaintiff in the past-that is, whether the plaintiff’s litigation conduct was meant ‘to prevent a defendant from removing the action.'” The court was not persuaded by the plaintiff’s assertion as the plaintiff had taken few steps to litigate his claims against Seidenbach, coupled with the “extensive litigation in this Court regarding the improper joinder of … Seidenbach in asbestos cases.” Therefore, the court found that Exxon’s notice of removal was not untimely as the plaintiff acted in bad faith.
The plaintiff also argued that non-diverse defendant Seidenbach was not improperly joined in this matter to defeat diversity jurisdiction. Pursuant to Crockett v. R.J. Reynolds Tobacco Co., a party may demonstrate fraudulent joinder by showing the “inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Here, the plaintiff’s experts opined that his disease was caused by asbestos-containing insulation and gaskets. However, the evidence shows that Seidenbach supplied corrugated roofing to Exxon. As such, Exxon argues that the plaintiff has not shown that he can recover against Seidenbach in state court because there is no evidence that Seidenbach’s roofing material contributed to the plaintiff’s disease, or that Seidenbach supplied asbestos-containing insulation. In light of the fact that the expert discovery deadline had passed and only ten days remained before the discovery deadline, the court agreed with Exxon. Specifically, the court noted that “Plaintiff has had [the] opportunity and has failed to produce evidence that Taylor Seidenbach supplied insulation to Exxon’s Baton Rouge facility or that his illness was caused by one of the asbestos-containing products that Taylor Seidenbach did supply to Exxon’s Baton Rouge facility.” Since complete diversity exists between the parties, the court had diversity jurisdiction over the matter. Thus, the court denied the plaintiff’s motion to remand.