United States District Court, D. South Carolina, Florence Division
Antoine Bostic, Individually and as Personal Representative of the Estate of Bertila Delora Boyd-Bostic, Plaintiff,
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
C. Coggins, Jr. United States District Judge
matter comes to the Court on Plaintiff's Emergency Motion
to Remand, Reduce the Defendants' Time to Respond,
Award Attorneys' Fees. ECF No. 4.
Procedural and Factual History
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. 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.
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.
Removal and Diversity Jurisdiction
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.
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).
Removal Under 28 U.S.C. § 1446
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)).
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.