U.S. District Court for the Eastern District of Louisiana, November 18, 2021
In this asbestos action, the plaintiff Willard Masters commenced an action in Louisiana state court alleging negligence claims against several defendants following his development of mesothelioma. While the defendant Taylor-Seidenbach, Inc. is not diverse from Masters, the defendant Graybar Electric Company, Inc. is a New York corporation with its principal place of business in Missouri. Trial commenced and counsel for all three above-referenced parties gave closing statements to the jury.
The day after closing statements, Graybar filed a notice of removal. Thereafter, the plaintiff’s counsel filed a motion to remand. Graybar argued that the plaintiff’s counsel “abandoned” their claims against Taylor-Seidenbach, the non-diverse defendant, when counsel made the following statements during closing arguments:
So the first question [is] do you find by a preponderance of the evidence … that any or all of the following defendants were negligent and that such negligence was a substantial contributing factor in causing [the plaintiff’s] mesothelioma. [S]o for Graybar[,] yes. The next defendant, Mr. Lightfoot’s defendant, Taylor [Seidenbach]. You haven’t heard any evidence that Mr. Masters was working around Taylor [Seidenbach.] I would check [no] for that one.
As such, Graybar contended that this court has diversity jurisdiction under 28 U.S.C. § 1332. The plaintiff asserted that their claims were not abandoned as to Taylor-Seidenbach.
In matters that are not removable from the outset of the action, a party can remove the matter to federal court after “receipt … of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). In addition, “under the judicially-created ‘voluntary-involuntary’ rule, an action nonremovable when commenced may become removable only by the voluntary act of the plaintiff.” Under this rule, a “[p]laintiff, by this voluntary act must definitely and clearly indicate … his intention to abandon or discontinue the action against a nondiverse defendant.”
The court first noted that this issue has been faced in other cases in the circuit, where Graybar’s argument was rejected. Further, the case law supporting Graybar’s position as to voluntary abandonment from a plaintiff’s counsel’s statements during closing argument were “factually distinct and non-binding.” Notably, while the plaintiff’s counsel recommended to the jury that Taylor-Seidenbach was not negligent, ultimately, that decision is within the jury’s purview to decide. As such, the court set forth that the counsel’s recommendations should not be “construe[d] as a binding intention to discontinue a claim against Taylor-Seidenbach. Instead, given that Taylor-Seidenbach remains on the jury verdict form as a defendant that jurors could find liable, the Court does not conclude that counsel’s statements amount to an express abandonment of his claim.” Further noting that “[a]ny ambiguities are construed against removal,” the court granted the plaintiff’s motion to remand.