United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Remand (Rec. Doc.
8) filed by Plaintiff, Marilyn Rousseau. Defendants
Johnson & Johnson and Johnson & Johnson Consumer,
Inc. (collectively “J & J”) oppose the
motion. The motion, noticed for submission on April 18, 2018,
is before the Court on the briefs without oral
Marilyn Rousseau has been diagnosed with malignant
mesothelioma, which she attributes to her and her
mother's use of cosmetic talc products. According to
Plaintiff, talc is regularly contaminated with asbestos
and/or asbestiform contaminants that distinctly give rise to
an increased risk of mesothelioma.
a Louisiana citizen, initiated this suit in Orleans Parish
state court against J & J and other defendants, who
allegedly designed, manufactured, sold or supplied the talc
products that she and her mother purchased and used here in
Louisiana. Plaintiff's alleged exposure period is from
approximately 1948 through the late 1970s. J & J removed
the suit to federal court claiming diversity jurisdiction. 28
U.S.C. § 1332(a)(1). All of the defendants, with the
exception of K&B Louisiana Corporation (d/b/a Rite Aid
Corporation), are diverse, non-Louisiana entities. Removal
was grounded on the contention that Ms. Rousseau improperly
joined K&B in order to defeat federal jurisdiction.
now moves to remand the case back to state court contending
that J & J has not met its burden of establishing
improper joinder as to the non-diverse defendant, K&B.
improper joinder doctrine constitutes a narrow exception to
the rule of complete diversity. Cuevas v. BAC Home Loans
Serv., 648 F.3d 242, 249 (5th Cir. 2011)
(citing McDonal v. Abbott Labs., 408 F.3d 177, 183
(5th Cir. 2005)). Improper joinder can be
established in two ways: 1) actual fraud in the pleading of
jurisdictional facts, ¶ 2) the inability of the
plaintiff to establish a cause of action against the
non-diverse party in state court. Alviar v. Lillard,
854 F.3d 286, 289 (5th Cir. 2017) (quoting
Mumfrey v. CVS Pharm., Inc., 719 F.3d 392, 401
(5th Cir. 2013)). To establish improper joinder
under the second prong, the defendant must demonstrate that
“there is no possibility of recovery” against the
non-diverse defendant, “which stated differently means
that there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover against
an in-state defendant.” Id. (quoting
Smallwood v. Illinois Cent. R. Co., 385 F.3d 568,
573 (5th Cir. 2004 (en banc)).
determine whether an in-state defendant was improperly
joined, the court may conduct a Rule 12(b)(6)-type analysis,
looking initially at the allegations of the petition to
determine whether the allegations state a claim against the
non-diverse defendant under state law. Alviar, 854
F.3d at 289. The Court may also “pierce the
pleadings” and consider summary judgment-type evidence
so long as all unchallenged factual allegations are construed
in the light most favorable to the plaintiff. Travis v.
Irby, 326 F.3d 644, 648-49 (5th Cir. 2003).
However, pretrying the case to determine removal jurisdiction
is not appropriate. Griggs v. State Farm Lloyds, 181
F.3d 694, 700 (5th Cir. 1999) (citing
Cavallini v. State Farm Mut. Auto Ins., 44 F.3d 256,
263 (5th Cir. 1995)). Any contested issues of fact
and ambiguities of state law must be resolved in the
plaintiff's favor. Travis, 326 F.3d at 648-49.
focus of the improper joinder inquiry is on the joinder of
the non-diverse defendant, not on the merits of the
plaintiff's case. Cuevas, 648 F.3d at 249. The
burden of establishing improper joinder is on the removing
party and the burden is a heavy one. Id. Any doubt
regarding whether removal jurisdiction is proper should be
resolved against federal jurisdiction and in favor of remand.
Acuna v. Brown & Root, Inc., 200 F.3d 335, 339
(5th Cir. 2000) (citing Willy v. Coastal
Corp., 855 F.2d 1160, 1164 (5th Cir.1988)).
argues that she has adequately alleged strict liability,
negligence, and redhibition claims against K&B, even
though K&B was not a manufacturer of talc products but
rather was a non-manufacturer seller of those products. J
& J points out that even under pre-Act law, a
non-manufacturer seller cannot be liable for selling a
defective product absent a showing that the product was
defective-an allegation that Plaintiff cannot make.
Plaintiff's answer to this problem is found in the
pre-Act concept of a professional vendor, as discussed in
Chappuis v. Sears Roebuck & Co., 358 So.2d 926
(La. 1978). The responsibility of a seller found to be a
professional vendor will be the same as that of a
manufacturer, who of course is charged with knowledge of the
defects in its products. See Id. at 929. In
Chappuis, where the retailer had held the product
out to the public as its own, coupled with the size, volume,
and merchandising practices of the retailer, the concept of
professional vendor applied. Id. at 930.
J's position is that the factual allegations in the
petition specific to K&B are insufficient to trigger
professional vendor liability even if the allegations might
apply that theory to other defendants. While the Court agrees
that the allegations were not precisely and carefully drafted
to make unequivocally clear that the pertinent allegations
pertain to all defendants, the Court is not
persuaded that the technical deficiencies identified by J
& J establish improper joinder. The facts giving rise to
the claims at issue occurred between forty and seventy years
ago so Plaintiff will require discovery to flesh out her
claims against all of the defendants, including K&B. This
case is in its infancy and the Court cannot conclude with any
degree of certainty that Plaintiff has no possibility of
recovery against K&B. The affidavit of Bryan Shirtliff
with Rite Aid (Rec. Doc. 1-4, Exh. C) does nothing to impugn
this conclusion. Moreover, the Court finds persuasive the
opinion in McBride v. Johnson & Johnson, (Rec.
Doc. 8-3, Exh. C), authored by Judge Wolfson, the district
judge presiding over the talcum powder products MDL.
and for the foregoing reasons;
IS ORDERED that the Motion to Remand (Rec.
Doc. 8) filed by Plaintiff, Marilyn Rousseau is
GRANTED. This matter is
REMANDED to the state court from which it
was removed pursuant to 28 ...