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Bristol v. Ford Motor Co.

United States District Court, E.D. Missouri, Eastern Division

October 27, 2016

NOLA H. BRISTOL, Plaintiff,
FORD MOTOR COMPANY, et al., Defendants.



         This matter is before the Court on Plaintiff Nola H. Bristol's motion to remand this action to the Circuit Court for the City of St. Louis, Missouri, from which it was removed by Defendant Ford Motor Company (“Ford”) (Doc. 37). The matter is fully briefed and ready for disposition. For the following reasons, the Court will grant the motion in part, and deny the motion in part.


         On August 20, 2015, Plaintiff filed this civil action in the Circuit Court for the City of St. Louis, Missouri, naming Ford, Mendenhall Motor Company d/b/a Mendenhall Rebuilders (“Mendenhall”) and twenty-two other defendants (collectively, “Defendants”). In her petition, she alleges that from 1972 until 1989, her husband, Gene Bristol, was employed as a mechanic at a Ford dealership in Utah; that in the course of that employment, he was exposed to large amounts of asbestos contained in products that Defendants manufactured, sold, and distributed; and that he developed mesothelioma as result of his workplace exposure to asbestos. Plaintiff sought relief under Missouri state law (Doc. 1.1 at 1-21).

         On October 24, 2016, Ford removed the case to this Court (Doc. 1). In its notice of removal, Ford asserts (1) that as the sole remaining defendant in this action, it was not required to obtain the consent of any of the other Defendants before removing this action; (2) that the Court has diversity jurisdiction over this matter because the remaining parties-Plaintiff and Ford-are completely diverse and the amount in controversy exceeds $75, 000, see 28 U.S.C. § 1332(a) (diversity jurisdiction); (3) that its notice of removal is timely because it was filed within thirty days of October 24, 2016, when Plaintiff dismissed Mendenhall and the action became removable[1]; (4) that the one-year limit for removing actions on the basis of diversity, as set forth in 28 U.S.C.§ 1446(c), does not preclude removal of this action because Plaintiff acted in bad faith to prevent timely removal by failing to prosecute her claim against Mendenhall.

         Ford identifies the following facts as evidence that Plaintiff acted in bad faith to prevent removal. First, the state-court docket sheet shows that Plaintiff never sought discovery from Mendenhall, and Mendenhall never sought discovery from Plaintiff. Second, Plaintiff did not seek to depose Mendenhall's corporate representative in this action. Third, during a deposition of Mr. Bristol's former co-worker, Plaintiff offered a “product identification stipulation” to Mendenhall.[2] Fourth, Plaintiff did not respond to a motion for summary judgment filed by Mendenhall, but later responded to a summary judgment motion filed by another defendant. Finally, Mendenhall was dissolved in June 2010, and nothing suggests that Plaintiff sought to determine whether Mendenhall had a contract of insurance that would indemnify the company for Plaintiff's claim (Docs. 1 at 4-9; 1.57 (state court docket sheet); 1.58 (excerpt of deposition of co-worker); 1.59 (Mendenhall's summary judgment motion)).

         Plaintiff now moves to remand this case back to the Circuit Court for the City of St. Louis (Docs. 36-37; 51). In support of her motion, Plaintiff first argues that Ford's removal of this case is procedurally defective because Ford has not obtained the consent of two other defendants who have not yet been dismissed (Doc. 36 at 5-6). Plaintiff also contends that Ford's removal is untimely, as the notice of removal was not filed within one year after Plaintiff filed her action in the state court (Id. at 6-8).

         As to Ford's argument that she acted in bad faith to prevent removal, Plaintiff asserts that she actively litigated her claim against Mendenhall, and that there is no evidence she intentionally kept Mendenhall in the case solely to prevent removal. More specifically, she claims that she obtained substantial discovery from Mendenhall, albeit through discovery requests filed in a different asbestos-exposure lawsuit involving Plaintiff's counsel and Mendenhall; that as part of ongoing settlement negotiations, Mendenhall agreed that Plaintiff would not need to respond to its motion for summary judgment; and that she ultimately settled her claim against Mendenhall, for consideration, on October 24, 2016 (Id. at 3-5, 9-12). Plaintiff has produced a copy of an email that Mendenhall's counsel sent to Plaintiff's counsel on August 17, 2016 at 9:33 p.m., in which counsel for Mendenhall wrote, “Any chance a package deal of [another asbestos-exposure case] and Bristol might be of interest to you? Just thinking outside the usual box.” (Doc. 36.16). Plaintiff has also submitted an affidavit from Plaintiff's counsel, dated October 24, 2016, in which counsel attests, inter alia, that Plaintiff and Mendenhall have agreed to a settlement in this case, but are awaiting “final approval” of the settlement from Mendenhall's insurer (Doc. 36.17).

         Plaintiff also seeks sanctions against Ford under Rule 11 of the Federal Rules of Civil Procedure or the Court's inherent authority, and an award of costs, fees, and expenses under 28 U.S.C. § 1447(c) (Docs. 36-37, 51). According to Plaintiff, sanctions are warranted because Ford improperly removed this action on the first day of trial in the state court, and after its third motion for continuance was denied, for the purpose of delaying the state-court proceeding (Docs. 36 at 1, 13-15; 51 at 13-15).

         Ford opposes Plaintiff's motion to remand, reiterating its arguments in support of removal (Docs. 50; 53-54). In support of its argument that it is the only remaining defendant in this action, Ford points to Plaintiff's October 24, 2016 response to a motion to dismiss for lack of personal jurisdiction filed by Ford in the state-court proceeding, which states “Plaintiff has litigated this case up to the eve of trial, and has resolved or dismissed her claims against every defendant other than Ford.” (Doc. 1.61 at 30). According to Ford, this statement triggered a new thirty-day removal period under 28 U.S.C. § 1446(b)(3). Ford further asserts that this statement also establishes there are no other defendants from whom it was required to seek consent before removing this action (Doc. 50 at 2-6). Ford also opposes Plaintiff's request for sanctions, arguing that its removal was proper, that Plaintiff's request for Rule 11 sanctions is procedurally barred, and alternately, that sanctions are not warranted because it had a good faith basis in law and fact for removing the case to federal court (Docs. 41, 53-54).


         1. Ford was not required to obtain consent of other defendants.

         Initially, the Court finds that Ford's notice of removal was not procedurally defective for failure to obtain the consent of other defendants. When a civil action is removed to federal court, all defendants who have been joined and served must generally join in or consent to the removal of the action. 28 U.S.C. § 1446(b)(2)(A). However, consent from dismissed defendants is not required. Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 903 n.2 (8th Cir. 1985) (citations omitted) (settlement between plaintiff and non-diverse defendant may be final enough to support removal even in absence of formal entry of dismissal); see Midwestern Indem. Co. v. Brooks, 779 F.3d 540, 544 (8th Cir. 2015) (once claims against defendant who did not consent to removal were settled, removal was proper because continuation of suit against them would be a nullity). The Court concludes that Plaintiff's statement in her October 24, 2016 response in opposition to Ford's motion to dismiss was effective to establish that Ford was the only remaining defendant in this action. As such, Ford was not required to seek and obtain the consent of other defendants before filing its notice of removal.

         2. This action became removable under 28 U.S.C. ยง ...

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