In this case alleging asbestos exposure from talc, mesothelioma plaintiff filed a motion to remand back to Florida state court after defendant Johnson & Johnson removed to federal court based upon diversity jurisdiction. The defendant argued that the plaintiff fraudulently joined defendant Publix Super Markets, Inc. (Publix) to destroy diversity. The court determined Publix was not fraudulently joined and remanded.
In determining remand, the court must evaluate the factual allegations in the light most favorable to the plaintiff. If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper. Here, the plaintiff asserted a cause of action against Publix for negligence. Johnson & Johnson argued there was no possibility that the plaintiff could state this cause of action, because based upon the declaration of Cynthia Roberts, “category manager” for Publix, Publix sold finished talcum products but otherwise had no control over the manufacture of same. However, this declaration did not address what Publix should have known, upon which the negligence claim was also based. Viewed in the light most favorable to the plaintiff, these allegations, which were not refuted, were sufficient to establish the possibility that the plaintiffs may state a claim for negligence against Publix.
However, because Johnson & Johnson had a reasonable basis for removal, the plaintiffs were not entitled to fees and costs.