U.S. District Court for the Eastern District of Louisiana
The plaintiffs brought the instant action alleging that decedent John Brindell was exposed to asbestos-containing products during his employment for Puerto Rico Marine Management (PRMM) as a mechanic at the Port of New Orleans. The plaintiffs argue that the exposure to asbestos caused the decedent to contract mesothelioma. Before the court is the plaintiffs’ emergency motion to remand. Defendants Eaton Corporation, Pneumo Abex, LLC, Utility Trailer Manufacturing Company, Strick Trailers, LLC, CRA Trailers, Inc., and Great Dane LLC (removing defendants) oppose the motion.
As previously reported, the court earlier granted the plaintiff’s motion to remand as it found that non-diverse defendants were not improperly joined because the plaintiffs had adequately stated strict liability and negligence claims against each non-diverse defendant.
The remaining defendants removed this matter to federal court for a second time, again asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332. The defendants concede that four defendants (Taylor, Eagle, First State, and Fidelity) are Louisiana citizens and are therefore not diverse from the plaintiffs. However, the remaining defendants argue that each non-diverse defendant’s citizenship should be disregarded because each non-diverse defendant was improperly joined in order to defeat federal jurisdiction. Specifically, they argue that the affidavit of Mr. Kain was procured and executed in bad faith in order to avoid a proper removal. Moreover, they argue that at the notice of removal was timely for two reasons. First, they claim that although the notice of removal was filed over a year after the case was originally filed in state court, it was nevertheless timely because the plaintiffs acted in bad faith to prevent removal. Second, they assert that it was timely because it was filed within 30 days of the defendants’ receipt of “other paper,” namely, a transcript of Mr. Kain’s deposition on January 29, 2021.
The plaintiffs argue that the removal in this case is procedurally barred both on timing grounds and by removing the defendants failure to have obtained the consent of all defendants as well as substantively barred by the court’s previous June 9, 2020 Order which soundly rejected the defendants’ claims of improper joinder.
Analyzing each of the remaining defendant’s arguments, the court first notes that the defendants have not shown that the plaintiffs acted in bad faith to prevent removal, as they have not shown that Mr. Kain’s affidavit was false or that it was not based on personal knowledge. In addition to their arguments surrounding Mr. Kain’s affidavit, the removing defendants point to the plaintiffs’ alleged failure to develop any of the claims against the non-diverse defendants as further evidence of bad faith. The removing defendants assert that the plaintiffs waited until after the one-year deadline for removal before: (1) “directing any discovery to the non-diverse defendants”; (2) serving expert reports “which made clear that Taylor and Eagle were not actual targets for Plaintiffs’ claims”; and (3) “noticing the deposition of the one witness Plaintiffs stated would make their case against both Eagle and Taylor (Mr. Kain). The court again found that the removing defendants did not meet their burden of showing that the plaintiffs acted in bad faith to prevent removal by maintaining their claims against the non-diverse defendants.
Moreover, the court notes that the parties lack complete diversity of citizenship because the plaintiffs and four defendants are Louisiana citizens. It further found the removing defendants’ argument regarding improper joinder to be unavailing as the plaintiffs submitted expert reports, which indicate they are diligently pursuing their claims and have a possibility of recovering against the non-diverse defendants.
Consequently, the court granted the plaintiff’s emergency motion to remand.