United States District Court, E.D. Missouri, Eastern Division
SHAWNEE D. DOUGLAS, Plaintiff,
IMERYS TALC AMERICA, INC., f/k/a LUZENAC AMERICAN, INC., JOHNSON & JOHNSON CONSUMER, INC., f/k/a MCNEIL-PPC, INC., METROPOLITAN LIFE INSURANCE COMPANY, and PTI UNION, LCC, Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on numerous motions filed by the
parties. Currently pending are Defendant Imerys Talc America,
Inc.'s ("Imerys") Motion to Dismiss Plaintiffs
Petition for Lack of Personal Jurisdiction filed by (ECF No.
20), Plaintiffs Emergency Motion to Remand with Request for
Expedited Consideration (ECF No. 31) and related Motion for
Telephonic Hearing (ECF No. 33), Defendant Johnson &
Johnson Consumer Inc.'s ("Johnson &
Johnson") Motion to Dismiss for Improper Venue or,
in the Alternative, Motion to Transfer (ECF No. 34),
Defendant PTI Union, LLC's ("PTI Union") Motion
to Dismiss Plaintiffs Petition for Failure to State a Claim
(ECF No. 47),  and PTI Union's Motion to Transfer for
Improper Venue (ECF No. 48).
Shawnee D. Douglas filed this case in state court alleging
that the use of talc products caused her malignant peritoneal
mesothelioma. Johnson & Johnson removed the case to
federal court on the grounds that diversity of citizenship
exists because, inter alia, the only Missouri-based
Defendant, PTI Union, was fraudulently joined in this action.
August 14, 2018, the Court issued an Order granting
Plaintiffs Motion for Extension of Time to Respond to
Imerys's Motion to Dismiss for Lack of Personal
Jurisdiction. (ECF No. 38) The Order of August 14 also
adopted the parties' proposal to decide the threshold
matter of subject matter jurisdiction presented in Plaintiffs
Motion to Remand before it addresses Imerys's Motion to
Dismiss for Lack of Personal Jurisdiction. (Id.)
Subsequently, the Court granted Plaintiffs Unopposed Motion
for Extension of Time to Respond to Johnson &
Johnson's Motion to Dismiss for Improper Venue, or, in
the Alternative, Motion to Transfer. (ECF No. 49) That Order
further adopted the parties' proposal that Plaintiffs
response to Johnson & Johnson's Motion to Dismiss,
should the Court deny Plaintiff's Motion to
Remand, would be due 14 days from the date of the
Court's Order issuing its remand ruling.
Motion to Remand and PTI Union's Motion to Dismiss are
fully briefed and ready for disposition. After careful
consideration, the Court will deny the motion to remand and
dismiss Plaintiffs claims against PTI Union.
alleges she suffers from malignant peritoneal mesothelioma as
a result of her exposure to asbestos from use of talc-based
products. She initially filed this lawsuit alleging strict
liability, negligence, wilful and wonton misconduct, and
conspiracy in Missouri state court in the Twenty-Second
Judicial Circuit, City of St. Louis. Plaintiff named Johnson
& Johnson, Imerys, Metropolitan Life Insurance Company
("MetLife"), and PTI Union as
& Johnson removed the case to federal court on the
grounds that diversity of citizenship exists because,
inter alia, the only Missouri-based Defendant, PTI
Union, was fraudulently joined in this action. The various
motions that have been filed include Plaintiffs Emergency
Motion to Remand with Request for Expedited Consideration.
(ECF No. 31) As explained above, the Court previously decided
it would decide the threshold issue of subject matter
jurisdiction presented in Plaintiffs Motion to Remand before
addressing the issues raised in the other pending motions yet
to be fully briefed.
Plaintiff filed her Motion to Remand and accompanying
Memorandum in Support (ECF No. 32), Johnson & Johnson
filed a Memorandum of Law in Opposition. (ECF No. 44)
Pursuant to this district's Local Rule 7-401(C),
Plaintiff had seven days after Johnson & Johnson filed
its memorandum of law in opposition within which to file a
reply memorandum. Plaintiff did not file any reply and the
time to do so has since passed. Accordingly, the Court
considered the arguments presented in Plaintiffs Motion to
Remand and accompanying Memorandum in Support (ECF Nos. 31,
32), Johnson & Johnson's Memorandum of Law in
Opposition (ECF No. 44), and PTI Union's Joinder in
Opposing Remand (ECF No. 46).
Plaintiff's Motion to Remand
argues the Court should remand this case to state court
"[b]ecause diversity is lacking." (ECF No. 32, at
9) Defendants, on the other hand, assert that complete
diversity exists between Plaintiff and "all properly
jo ined Defendants" because Plaintiff fraudulently
joined PTI Union as a defendant. (ECF No. 1, ¶ 5; ECF
No. 46, at 1) (emphasis added)
may remove an action to federal court only if it could have
been brought in federal court originally. Junk v.
Terminix Int'l Co, 628 F.3d 439, 444 (8th Cir. 2010)
(citing 28 U.S.C. § 1441(a)-(b)). In removal cases, the
Court reviews the state court petition and the notice of
removal in order to determine whether it has jurisdiction.
Branch v. Wheaton Van Lines, Inc., No. 4:14CV01735
AGF, 2014 WL 6461372, at *1 (E.D. Mo. Nov. 17, 2014).
"Where the defendant seeks to invoke federal
jurisdiction through removal, ... it bears the burden of
proving that the jurisdictional threshold is satisfied."
Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.
2009). "[A] case is ordinarily not removable on federal
question grounds unless the federal question is presented on
the face of the plaintiffs complaint." Kaufman v.
Boone Ctr., Inc., No. 4:11CV286 CDP, 2011 WL 1564052, at
*1 (E.D. Mo. Apr. 25, 2011). A plaintiff may move to remand
the case if the district court lacks subject matter
jurisdiction. Junk, 628 F.3d at 444 (citing 28
U.S.C. § 1447(c)). District courts are to resolve all
doubts regarding federal jurisdiction in favor of remand.
Hubbard v. Federated Mut. Ins. Co., 799 F.3d 1224,
1227 (8th Cir. 2015).
have long recognized fraudulent joinder as an exception to
the complete diversity rule." In re Prempro Prod.
Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). This
exception allows courts to "ignore the citizenship of
parties fraudulently joined" when determining whether
the court has diversity jurisdiction over a case. Moss v.
Def. Servs., Inc., No. 1:08-CV-88 CAS, 2009 WL 90136, at
*2 (E.D. Mo. Jan. 14, 2009) (citing Anderson v. Home Ins.
Co., 724 F.2d 82, 84 (8th Cir. 1983); 28 U.S.C. §
1441(b)). Joinder is fraudulent thereby making removal proper
"when a plaintiff files a frivolous or illegitimate
claim against a non-diverse defendant solely to prevent
removal. When determining if a party has been fraudulently
joined, a court considers whether there is any reasonable
basis in fact or law to support a claim against a nondiverse
defendant." In re Prempro, 591 F.3d at 620
(citation omitted). The Eighth Circuit has explained:
a proper review should give paramount consideration to the
reasonableness of the basis underlying the state claim. Where
applicable state precedent precludes the existence of a cause
of action against a defendant, joinder is fraudulent.
"[I]t is well established that if it is clear
under governing state law that the complaint does not state a
cause of action against the non-diverse defendant, the
joinder is fraudulent and federal jurisdiction of the case
should be retained." However, if there is a
"colorable" cause of action-that is, if the ...