Case Remanded to State Court as Brake Manufacturer Failed to Obtain Consent From all Remaining Defendants

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U.S. District Court for the Northern District of Illinois, Eastern Division

Eugene Longobardi sued numerous asbestos manufactures in Illinois state court after he developed mesothelioma, alleging that his disease was caused by his exposure to asbestos while serving in the U.S. Army from 1974 to 1981. Shortly thereafter, Longobardi died and Pamela Langobardi was named plaintiff and administrator of his estate. Pamela amended the complaint to add Honeywell International (Honeywell) as a defendant. Honeywell removed the suit to federal court premising jurisdiction on the diversity statute. The court remanded the suit back to state court reasoning that Navistar, Inc., an Illinois citizen, was still a defendant and therefore the forum defendant rule barred removal.

In opposing remand, Honeywell argued that Navistar’s formal presence in the suit could be disregarded because Pamela had reached a settlement with Navistar before the removal. The court disagreed, reasoning that the state court had not yet approved the settlement and therefore Navistar remained a defendant. Thereafter, Pamela’s settlement with Navistar was finalized and the state court formally dismissed it from the suit. Honeywell again removed the suit to federal court. In the instant matter, Pamela moved to remand this matter once again back to state court.

The court noted that the party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff’s choice of forum in state court. While Pamela argued three reasons for remand, the court paid close attention to just one, that is, her argument that Honeywell did not secure the joined in or consent to removal of all remaining defendants in the case.

The removal statute provides that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). Honeywell’s notice of removal states that “all properly served and named defendants consent” to the removal. However, Honeywell did not receive the consent of Borg-Warner Corporation, a defendant that remained in the suit at the time of the second removal. Honeywell concedes that it never obtained Borg-Warner’s consent but argues that doing so was unnecessary as before the first removal, it contacted Pamela’s counsel “to inquire which defendants were still parties to the matter,” and counsel did not list Borg-Warner among the remaining defendants. Honeywell then removed the suit and, as noted, the court remanded, holding that Navistar’s continued presence in the suit precluded removal.

The court’s remand order did not address Honeywell’s failure to obtain Borg-Warner’s consent to or joinder in the removal. The court noted that Honeywell must have known that Borg-Warner remained a defendant, as it had access to the state court docket sheet, and it surely knew from the court’s remand order that a defendant remained for the purposes of the removal statute unless and until it had been formally dismissed from the suit.

The court ultimately granted Pamela’s motion to remand. The court noted that Borg-Warner had not been dismissed from the suit when Honeywell filed its second notice of removal so the removal was valid only if Borg-Warner joined or consented to the removal. The court noted that if Honeywell or any other defendant, removes the suit again, it should take care to identify each remaining party, and allege the citizenship of such party, in its notice of removal. Furthermore, the removing defendant also should bear in mind that it is Eugene’s citizenship, not Pamela’s, that is pertinent under the diversity statute.