U.S. District Court for the Southern District of Texas, Houston Division, March 17, 2022
In this asbestos action, plaintiff Naomi Wisener alleged that several defendants manufactured or supplied asbestos-containing products which exposed her to asbestos. Wisener commenced this action in state court (14th Judicial Court of Dallas County, Texas). Defendant Revlon removed the matter to federal court (United States District Court for the Northern District of Texas). Thereafter, Wisener moved to remand the matter to state court.
As the party removing the matter to federal court, Revlon had the “burden of showing that federal jurisdiction exists and that removal was proper.” Wisener argued that the court did not have subject-matter diversity as the parties were not completely diverse. Revlon acknowledged that the citizenship of a member of defendant Scholl’s Wellness was unknown although Revlon made “diligent attempts” to discovery the member’s citizenship. The court set forth that “merely making diligent attempts to ascertain the citizenship of Scholl’s Wellness cannot satisfy the removing party’s burden.” As such, Revlon did not meet its burden to show complete diversity amongst the parties.
In addition, Revlon failed to show improper joinder of non-diverse parties. Revlon contended that two defendants who were both citizens of Texas were improperly joined. “To demonstrate improper joinder of resident defendants, the removing defendants must demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Here, the court found that Wisener sufficiently alleged the elements under Texas law (Tex. Civ. Prac. & Rem. Code § 82.003(a)(6)). In addition, Wisener “allege[d] facts enough to raise a right to relief above a speculative level” under Twombly. Here, Wisener alleged that the Texas defendants sold asbestos-containing talcum powder and cosmetics. Further, they knew of data, publications, studies, and industry information indicating the hazardous nature of these products. Therefore, Revlon did not show complete diversity of the parties, nor did Revlon show that the Texas defendants were improperly joined. Thus, the court remanded the matter to state court.