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Douglas v. Imerys Talc America, Inc.

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

February 14, 2019

SHAWNEE D. DOUGLAS, Plaintiff,
v.
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

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This 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")[1] 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), [2] and PTI Union's Motion to Transfer for Improper Venue (ECF No. 48).[3]

         Plaintiff Shawnee D. Douglas filed this case in state court alleging that the use of talc products caused her malignant peritoneal mesothelioma.[4] 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.

         On 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.

         Plaintiffs 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.

         BACKGROUND

         Plaintiff 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 defendants.[5]

         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.[6] 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.

         After Plaintiff filed her Motion to Remand and accompanying Memorandum in Support (ECF No. 32), Johnson & Johnson filed a Memorandum of Law in Opposition.[7] (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).

         DISCUSSION

         (a) Plaintiff's Motion to Remand

         Plaintiff 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)

         A party 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).

         "Courts 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 ...

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