United States District Court for the Southern District of Florida, August 31, 2021
In this asbestos action, plaintiffs David and Dorothy Bateman commenced an action alleging that David Bateman developed mesothelioma after being exposed to asbestos from eleven defendants’ products, including Bigham Insulation & Supply Company, Inc., a Florida corporation with a principal place of business in Florida. The plaintiffs filed a Motion to Remand following the defendants’ filing of a Notice of Removal. The plaintiffs argue that the defendants failed to prove that Bigham was fraudulently joined in this matter to defeat diversity jurisdiction.
To establish fraudulent joinder, “the removing party has the burden of proving … that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.” (Stillwell v. Allstate Ins. Co.) Under Legg v. Wyeth, “[t]he determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff’s pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties.” The defendants admitted that removal was not proper at the time the notice was filed since Bigham is a citizen of Florida. However, the defendants argued that the plaintiffs cannot sustain a cause of action against Bigham following David Bateman’s deposition. The court rejected this argument, noting that “Plaintiffs’ complaint contains numerous allegations to plausibly state a claim against Bigham. As such, [i]t cannot be said … that Mr. Bateman’s claims are overtly ‘fraudulent or frivolous’ against Bigham. This case is in its infancy and the court cannot conclude with any degree of certainty that the plaintiffs have no possibility of recovery against Bingham.” Therefore, the court granted the plaintiffs’ Motion to Remand.