U.S. District Court for the Eastern District of Missouri, October 22, 2021
Plaintiff Kris Lindsey was diagnosed with mesothelioma which he alleges resulted from asbestos exposure attributable to several defendants. The plaintiff initially filed suit alleging that he had been exposed to asbestos dust as a child by his father. The plaintiff then filed an amended petition that removed those allegations and instead alleged that he was exposed to asbestos by Johnson & Johnson baby powder.
Defendant Johnson & Johnson removed this case to federal court, asserting diversity jurisdiction. The defendant argued that because the plaintiff only alleged exposure to asbestos from its baby powder product, all other defendants named in the amended complaint had been fraudulently joined. The plaintiff then moved for leave to file a second amended complaint to add defendant Schnucks Markets, Inc., which is incorporated in the State of Missouri and thus a citizen of the State of Missouri. The plaintiff then moved to remand the case to state court, contending that the joinder of Schnucks precluded removal of this action under 28 U.S.C. § 1441(b)(2), commonly referred to as the “forum defendant rule,” which prohibits removal of an otherwise diverse action “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Defendant Johnson & Johnson argued that defendant Schnucks was fraudulently joined to defeat jurisdiction.
The court first determined if the other named defendants were fraudulently joined to defeat jurisdiction. A plaintiff cannot defeat a defendant’s “right of removal” by fraudulently joining a defendant who has “no real connection with the controversy.” The court looked to whether the plaintiff’s claims against the defendants had a reasonable basis in fact and law. The court determined as to all non-Johnson & Johnson defendants, the plaintiff failed to allege facts from which a reasonable inference can be made that any of these defendants could be liable for any of his claims. The court concluded these defendants were fraudulently joined, thereby making their citizenship irrelevant to the Johnson & Johnson defendants’ removal of the case on the basis of diversity jurisdiction. As such, the case was properly removed.
The court next examined the plaintiff’s motion for leave to amend and for remand. The court noted that the plaintiff sought to add Schnucks as a defendant in order to defeat jurisdiction of the federal court. The court noted a more scrutinizing analysis is required when a plaintiff seeks to join a non-diverse party after removal.
The court concluded that granting the plaintiff leave to amend for the admitted purpose of adding a perceived diversity-destroying defendant would be improper. In reaching this conclusion, the court noted:
“The timing of the plaintiff’s motion to amend (filed two weeks after removal) and of his related motion to remand (filed two weeks after his motion to amend) supports the inference and underscores the plaintiff’s not-so-veiled admission that he seeks to add Schnucks as a defendant in order to defeat federal jurisdiction—especially since Schnucks’ alleged involvement in placing the baby powder in the stream of commerce was readily discoverable and likely known to the plaintiff before he filed this lawsuit, but yet he did not name Schnucks as a defendant in either his initial or amended petition in state court.”
The court also noted that in the circumstances of this case, adding Schnucks as a defendant post-removal would not defeat diversity jurisdiction. Under § 1441(b)(2), a civil action otherwise removable solely on the basis of diversity jurisdiction may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.” When the plaintiff sought to add Schnucks as a defendant, the case had already been removed. As such, defendant Schnucks was not a properly joined and served defendant at the time of removal. Based on this, the court denied the plaintiff’s motion for remand finding the addition of Schnucks as a defendant did not defeat federal jurisdiction as complete diversity existed between the plaintiff and the remaining defendants, namely the Johnson & Johnson defendants.