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Smith v. Georgia-Pacific, LLC

United States District Court, E.D. Louisiana

May 22, 2017


         SECTION: "S" (1)



         IT IS HEREBY ORDERED that Plaintiff's Motion to Remand (Doc. #6) is GRANTED and this matter is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.


         This matter is before the court on a motion to remand filed by plaintiff, Ronald Smith. Smith argues that this matter should be remanded to the Civil District Court, Parish of Orleans, State of Louisiana for lack of subject matter jurisdiction because both he and one of the defendants, Taylor-Seidenbach, Inc., are citizens of Louisiana. Honeywell International, Inc., the removing defendant, contends that this court has diversity subject matter jurisdiction because Taylor-Seidenbach was improperly joined to defeat removal.

         On August 12, 2016, Smith, filed this action in the Civil District Court, Parish of Orleans, State of Louisiana alleging that he developed mesothelioma as a result of exposure to asbestos. He named as defendants: Borg-Warner Corp.; Certainteed Corporation; CSR, Inc.; Georgia Pacific, Inc.; Honeywell International, Inc.; The McCarty Corporation; Metropolitan Life Insurance Company; Pneumo Abex, LLC; Reilly-Benton Co., Inc.; Taylor-Seidenbach, Inc.; Union Carbide Corporation; Asbestos Corporation, Ltd.; BayerCropscience Inc.; Beazer East, Inc; Bird Incorporated; OneBeacon American Insurance Company; Houston General Insurance Company; The Stonewall Insurance Company; First State Insurance Company; American Insurance Company; Home Insurance Company; United States Fidelity and Guaranty Company; and, St. Paul Fire and Marine Insurance Company. Most of the defendants are citizens of states other than Louisiana. However, Taylor-Seidenbach, McCarty Corporation and Reilly-Benton are Louisiana citizens. Further, Eagle, Inc., which would have been a defendant but for its filing bankruptcy is a Louisiana citizen. Because of Eagle's bankruptcy, Smith named Eagle's insurers, OneBeacon, Houston General, Stonewall, First State, American Insurance, Home Insurance, United States Fidelity, and St. Paul Fire and Marine, as defendants. Taylor-Seidenbach, McCarty Corporation, Reilly-Benton, and Eagle are all local commercial and industrial insulation contractors and/or suppliers.

         Because of Smith's mesothelioma diagnosis, the state court set an expedited trial date of July 5, 2017. The parties have been conducting discovery. Smith has dismissed his claims against McCarty Corporation, Reilly-Benton, and all of Eagle's insurers. Taylor-Seidenbach is the only remaining defendant that has Louisiana citizenship.

         On April 18, 2017, defense counsel received Smith's work history, which was used by Smith's causation expert, Dr. Arthur Frank, to generate his opinions in this case. Honeywell argues that there is no mention in the work history that Smith worked with or around ay type of commercial or industrial insulation product, or worked at a location where such a product was likely to be present. Dr. Frank's report and deposition testimony do not reference any exposures of Smith to any insulation products.

         On April 24, 2017, Taylor-Seidenbach responded to discovery propounded by Smith. Taylor-Seidenbach stated that it did not have any documents showing that it had a relationship with any of Smith's employers or their suppliers, or any information pertaining to Smith's work with joint compound products, or roofing products.

         On April 27, 2017, Smith responded to discovery requests propounded by Honeywell, which sought information that would demonstrate that Smith worked with or around products supplied by any of the four Louisiana insulation contractors, and asking Smith to identify and produce evidence support his claims against those defendants. Smith responded that he lacked such information and that he could not identify any witnesses or evidence support his claims against Taylor-Seidenbach, or any of the other Louisiana-citizen defendants. However, Smith stated that discovery was ongoing and reserved the right to supplement his responses.

         On May 4, 2017, Honeywell removed this action to the United States District Court for the Eastern District of Louisiana, alleging diversity subject matter jurisdiction under 28 U.S.C. § 1332. Honeywell contends that all of the properly joined defendants have diverse citizenship from Smith and that there is more than $75, 000 in controversy. Honeywell removed this action within 30 days of receiving Smith's discovery responses, which it contends constitute "other paper" demonstrating that the case has become removable within the meaning of 28 U.S.C. § 1446(b)(3). Honeywell argues that Taylor-Seidenbach was improperly joined to defeat removal because Smith's work history and discovery responses demonstrate that Smith cannot prevail on his claims against Taylor-Seidenbach. Further, Honeywell argues that Smith has failed to develop evidence to support his allegations against Taylor-Seidenbach, and that no witness deposed has identified Taylor-Seidenbach as having sold, supplied, distributed or installed asbestos-containing products to which Smith was allegedly exposed, nor has any evidence indicated that Smith was employed at any location when Taylor-Seidenbach's materials were present or work was being performed. Thereafter, Smith filed the instant motion to remand. He argues that Taylor-Seidenbach was not improperly joined.


         I. Remand Standard

         Motions to remand to state court are governed by 28 U.S.C. § 1447(c), which provides that "[i]f at any time before the final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded." The removing defendant bears the burden of demonstrating that federal jurisdiction exists and therefore that removal was proper. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). In assessing whether removal is appropriate, the court is guided by the principle, grounded in notions of comity and the recognition that federal courts are courts of limited jurisdiction, that removal statutes should be strictly construed. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, ...

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