VIRGINIA – The plaintiffs, Raegena Boggs and Paul Boggs, residents of Colorado, filed their asbestos personal injury action in Kanawha County, West Virginia against numerous defendants, including Greyhound Lines, a Delaware corporation with a principal place of business in Texas; ArvinMeritor, Inc., an Indiana corporation with a principal place of business in Michigan; Carlisle Companies, Inc., a Delaware corporation with a principal place of business in Arizona; and Vimasco, a West Virginia corporation. The plaintiffs had resolved their claims with all of the defendants, except for the aforementioned, and trial of the case was scheduled to begin on Feb. 11, 2020. At the time, the defendant, Vimasco, had a pending motion for summary judgment that had been unopposed by the plaintiffs but not yet ruled on by the court. The defendant, Greyhound Lines, removed the case to federal court on Feb. 11, 2020, after a jury had been impaneled on diversity grounds (28 U.S.C. Section 1441(a)). In its notice of removal, Greyhound argued that the federal court should grant Vimasco’s unopposed motion for summary judgment and find that Vimasco was fraudulently joined in the case to ensure the presence of a non-diverse party. The plaintiffs moved to remand.
The federal court held that Vimasco remained an active defendant in the case at the time of the removal and noted that Greyhound’s position fell “laughably short” of meeting the high standard to establish fraudulent joinder. Furthermore, even if Vimasco’s motion for summary judgment was successful in the state court, removal is not permissible if a non-diverse party was involuntarily dismissed by order of the court. It is only when the plaintiff has voluntarily dismissed the non-diverse defendant, creating complete diversity, that the action can be removed. The court further held that trial was essentially underway at the time of removal, and there was no contention that Vimasco had been improperly joined at the inception of the case. Greyhound’s position that Vimasco’s residency should be disregarded because the claims against it were weak was not a matter for the federal court to resolve in a jurisdictional inquiry. The court therefore remanded the case to Kanawha County, West Virginia for further proceedings, and ordered that motions for costs and fees associated with the removal be filed.