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Bostic v. 3M Co.

United States District Court, D. South Carolina, Florence Division

April 16, 2018

Antoine Bostic, Individually and as Personal Representative of the Estate of Bertila Delora Boyd-Bostic, Plaintiff,
v.
3M Company, a Minnesota Corporation, Imerys Talc America, Ind. f/k/a Luzenac America, Inc., a Delaware Corporation, Johnson & Johnson Consumer, Inc., a New Jersey Corporation, Johnson & Johnson Services, Inc., a New Jersey Corporation, Navistar, Inc. f/k/a International Harvester Company, a Delaware Corporation, Rite Aid of South Carolina, Inc., a South Carolina Company, Dollar Tree Stores, Inc., a Virginia Corporation, and Family Dollar Stores, Inc., a South Carolina Corporation, Defendants.

          ORDER AND OPINION

          Donald C. Coggins, Jr. United States District Judge

         This matter comes to the Court on Plaintiff's Emergency Motion to Remand, Reduce the Defendants' Time to Respond, [1] and Award Attorneys' Fees. ECF No. 4.

         I. Procedural and Factual History

         Plaintiff filed a Complaint in the Court of Common Pleas for Darlington County, alleging that Bertila Delora Boyd-Bostic was injured because of exposure to asbestos in the 1980s.[2] ECF No. 1-1 at 4-20. Plaintiff amended the Complaint three times, with various parties being added and dropped to reflect the evolution of Plaintiff's claims. On March 2, 2018, Plaintiff filed the Third Amended Complaint, which alleges that Ms. Boyd-Bostic “was exposed to asbestos as a bystander and while using Johnson & Johnson Baby Powder . . . in her South Carolina home and other homes beginning in the 1980s.” ECF No. 1-2 at 35. Plaintiff also alleges that this exposure led to Ms. Boyd-Bostic's diagnosis of Mesothelioma and, ultimately, her death. Id. Plaintiff has named various entities who manufactured, distributed, or sold the asbestos-containing products as defendants. ECF No. 1-2 at 34-36. The case is scheduled for a date-certain trial on May 14, 2018, before the Honorable Jean H. Toal. ECF No. 4 at 2.

         On April 6, 2018, Defendants Johnson & Johnson, Johnson & Johnson Consumer, Inc., Imerys Talc America, Inc., f/k/a Luzenac America, Inc., Dollar Tree Stores, Inc., Family Dollar Stores, Inc., and Rite Aid of South Carolina, Inc. (collectively, “Removing Defendants”) filed a Notice of Removal in this Court. ECF No. 1. Removing Defendants have subsequently attempted to amend the Notice of Removal, though they have not filed a proper Motion despite being directed to do so by the Clerk. ECF No. 9. In response, Plaintiff has filed an Emergency Motion to Remand, Reduce the Defendants' Time to Respond, and Award Attorneys' Fees. ECF No. 4. The parties have briefed the Motion and it is ripe for this Court's review. The Court has determined that oral argument will not aid in the decisional process.

         II. Legal Standard

         A. Removal and Diversity Jurisdiction

         Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Because federal courts have limited subject matter jurisdiction, there is no presumption that the Court has jurisdiction. Pinkley, Inc. v. City of Frederick, MD, 191 F.3d 394, 399 (4th Cir. 1999). A party seeking to remove a case from state to federal court bears the burden of proving that jurisdiction is proper when it files its notice of removal. Caterpillar Inc. v. Lewis, 519 U.S. 61, 73 (1996). Courts “are obliged to construe removal jurisdiction strictly because of the ‘significant federalism concerns' implicated.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (quoting Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)). If federal jurisdiction is doubtful, remand is necessary. Mulcahey, 29 F.3d at 151.

         The right to remove a case to federal court derives solely from 28 U.S.C. § 1441, which provides that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” Without jurisdiction based on the presentation of a federal question, see 28 U.S.C. § 1331, a federal district court has only “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States . . . .” 28 U.S.C. §1332(a). The diversity jurisdiction statute has “consistently been held to require complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (footnote omitted).

         B. Removal Under 28 U.S.C. § 1446

         When a case is not removable based on parties' initial pleadings, 28 U.S.C. § 1446(b)(3) governs when a defendant may file a notice of removal. Under Section 1446(b)(3), “a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” “The ‘motion, order or other paper' requirement is broad enough to include any information received by the defendant, ‘whether communicated in a formal or informal manner.'” Yarnevic v. Brink's, Inc., 102 F.3d 753, 755 (4th Cir. 1996) (quoting 28 U.S.C. § 1446(b)(3); Broderick v. Dellasandro, 859 F.Supp. 176, 178 (E.D. Pa. 1994)).

         C. Fraudulent Joinder

         “A civil action otherwise removable solely on the basis of [diversity] jurisdiction under [28 U.S.C. § 1332(a)] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). The fraudulent joinder doctrine will permit a defendant to remove a case to federal court despite the presence of another non-diverse defendant. Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). “To establish fraudulent joinder, the removing party must show either: (1) outright fraud in the plaintiff's pleading of jurisdictional facts, or (2) that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Toney v. LaSalle Bank Nat. Ass'n, 36 F.Supp.3d 657, 663 (D.S.C. 2014) (citing Benjamin v. Wal-Mart Stores, Inc., 413 F.Supp.2d 652, 654 (D.S.C. 2006)). “The second means for establishing fraudulent joinder is even more favorable to a plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. (citing Hartley v. CSX Transp. Inc., 187 F.3d 422, 424 (4th Cir. 1999)). “A plaintiff does not have to show he will prevail against the defendant.” Id. “He must only show that he has a slight possibility of succeeding.” Id. (citing Hartley, 187 F.3d at 426). “If the plaintiff can show this glimmer of hope, the defendant is properly joined.” Id.

         III. ...


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