Booth v. 3M Co.

HENRY BOOTH PLAINTIFF v. 3M COMPANY, ET AL. DEFENDANTS

CIVIL ACTION NO. 2:14cv25-KS-MTP

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

July 28, 2014

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Plaintiff Henry Booth's Motion to Remand [50]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the motion is well taken and this action should be remanded to the Circuit Court of Forrest County, Mississippi.

I. BACKGROUND

On May 7, 2013, Booth filed suit against twenty-three (23) Defendants in the Circuit Court of Forrest County, Mississippi, alleging injury as a result of being exposed to crystalline silica while working as a sandblaster and painter from approximately 1972 to 1985. (See Compl. [1-2].) The Complaint asserts that each Defendant either manufactured, marketed, distributed, and sold defective personal respiratory equipment; defective sandblasting equipment; or silica sand. Further, the Complaint sets forth the following causes of action in support of recovery against all of the Defendants: strict liability and product defects; negligence; breach of warranties (express and implied); civil conspiracy; acting in concert; and gross negligence.

On November 12, 2013, Booth served discovery responses containing employment information conflicting with the information asserted in the Complaint. Booth's discovery responses indicate that he last worked as a sandblaster and painterin 1983, as opposed to 1985. Therefore, the last year of Booth's "exposure to respirable silica would have been 1983." (Pl.'s Mem. of Law in Supp. of Mot. to Remand [51] at p. 2.) On or about January 23, 2014, Defendant American Optical Corporation received an affidavit executed by James N. Dickerson, the former president of Defendant Dependable Abrasives, Inc. (dissolved), pertaining to a separate lawsuit brought by Arthur Ray Bourne in the Circuit Court of Claiborne County, Mississippi. Dickerson's affidavit states in pertinent part that Dependable Abrasives came into existence in 1985, and that the company did not sell sand from 1957 to 1982. (Dickerson Aff. [1-4] at ¶¶ 3, 5.)

On February 20, 2014, American Optical removed the proceeding to this Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. (See Notice of Removal [1].) The Notice of Removal asserts that complete diversity of citizenship exists between Booth and all properly joined and served Defendants. The notice further provides that the Mississippi citizenship of Dependable Abrasives must be disregarded since it is improperly joined. American Optical argues there is no reasonable basis to predict that Booth can recover from Dependable Abrasives since Booth's last alleged exposure to respirable silica occurred in 1983 and Dependable Abrasives did not exist until 1985. American Optical also asserts that the Notice of Removal was timely filed within thirty (30) days of its receipt of the Dickerson Affidavit [1-4], which falls under the scope of 28 U.S.C. § 1446(b)(3)'s "other paper" provision. All Defendants joined and served in the state court action, except Dependable Abrasives, joined in and consented to the removal. (Doc. No. [1-5].)

On March 21, 2014, Booth filed his Motion to Remand [50]. Booth argues thatthe removal was defective due to untimeliness. The Motion to Remand has been fully briefed and the Court is ready to rule.

II. DISCUSSION

A. Legal Standards

"In general, defendants may remove a civil action if a federal court would have had original jurisdiction." De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (citing 28 U.S.C. § 1441(a)). "The removing party bears the burden of establishing that federal jurisdiction exists." Id. (citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253-54 (5th Cir. 1961)). A motion to remand alleging a procedural defect in removal must be brought within thirty (30) days of the filing of the notice of removal, but "the case shall be remanded" at any time before final judgment if it appears that subject matter jurisdiction is lacking. 28 U.S.C. § 1447(c). Since federal courts are of limited jurisdiction and removal raises significant federalism concerns, the "removal statutes are to be construed strictly against removal and for remand." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996) (citations omitted). Courts are to consider "jurisdictional facts as they existed at the time of removal" in ruling on a motion to remand. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995).

Title 28 U.S.C. § 1446 sets forth the procedures for removal of a civil action, including provisions concerning the timing of removal. Generally, the notice of removal must be filed within thirty (30) days of the defendant's receipt of the initial pleading. 28 U.S.C. § 1446(b)(1). A different rule applies when an action is not initially removable:

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order orother paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b)(3). Discovery responses, pleadings, deposition transcripts, and attorney communications may constitute "other paper" for purposes of the removal statute. See Still v. Georgia-Pacific Corp., 965 F. Supp. 878, 881 (S.D. Miss. 1997) (citations omitted). The information contained in the "other paper must be 'unequivocally clear and certain' to start the time limit running for a notice of removal . . . ." Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002).

In Jernigan v. Ashland Oil Inc., 989 F.2d 812 (5th Cir. 1993), the United States Court of Appeals for the Fifth Circuit found the above-quoted "other paper" provision, then located at the second paragraph of § 1446(b), applicable to a removal based on improper joinder.¹ Ashland Oil argued that the first time it could have discovered the nondiverse defendants were improperly joined was when it received one of the defendant's answers, which was filed on March 23, 1990. Jernigan, 989 F.2d at 814. The plaintiffs never contradicted this assertion. See id. at 814-15. The Fifth Circuit held that the time for removal ran from March 23 (the date Ashland Oil discovered the case was removable), as opposed to February 2 (the date Ashland Oil was served with process). See id. at 813, 815. In Badon v. R J R Nabisco Inc., 224 F.3d 382, 390 n.13 (5th Cir. 2000), the Fifth Circuit distinguished Jernigan and held "that fraudulent joinder removals are not per se within the second paragraph of § 1446(b)." Thus, the defendants could properly invoke the general timing rule for removal, thirty days fromthe date of service, even though the removal was based on fraudulent joinder. See id. at 390. A fairly recent decision from the United States District Court for the Southern District of Texas examined Jernigan and Badon, as well as several district court opinions, and determined that "a defendant in an improper-joinder case must remove within 30 days from the point when he objectively could have discovered that the case was removable." Reynero v. Tex. Roadhouse, Inc., No. 5:14cv4, 2014 WL 1569413, at *4-5 (S.D. Tex. Apr. 9, 2014).

B. Analysis

The Court finds that this action was not timely removed under § 1446(b)(3).² Defendants argue their time to remove the action did not start to run until January 23, 2014, when they received the Dickerson Affidavit [1-4], providing that Dependable Abrasives came into existence in 1985. Defendants contend Dependable Abrasives' incorporation date was the key piece of information they needed in order to determine that Dependable Abrasives was improperly joined after Booth admitted in his discovery responses that he was last exposed to silica in 1983. Booth asserts that the time for removal began to run when he served his discovery responses on November 12, 2013. According to Booth, his discovery responses constitute "other paper" under § 1446(b)(3) because the Defendants were already on notice from testimony and discovery responses in prior silica litigation that Dependable Abrasives did not exist until 1985. Essentially, both the Defendants and Booth rely on Booth's November 12 discoveryresponses in conjunction with information regarding Dependable Abrasives' incorporation date supplied in separate litigation for their respective timing arguments. The Court discerns no cogent basis for giving controlling weight to the Dickerson Affidavit [1-4] and ignoring the nearly identical information offered by Dependable Abrasives in other separate lawsuits. Therefore, in strictly construing the removal statute and resolving all doubts in favor of remand,³ the Court determines that Booth has the better side of the argument.

Unlike the plaintiffs in Jernigan, Booth has contested the Defendants' assertion that the first time they could have realized Dependable Abrasives' improper joinder was upon their receipt of the Dickerson Affidavit [1-4]. Booth argues that the Defendants were on notice of essentially the same information contained in the Dickerson Affidavit—Dependable Abrasives was not in existence until 1985—from prior silicosis lawsuits. The following information presented by Booth supports this argument:

(i) On April 1, 2013, in the trial of Richard Pierce v. American Optical, et al., James Dickerson testified that Dependable Abrasives was founded in April of 1985 and began selling sand in the late part of 1984, 1985. (See Doc. No. [50-7] 420:10-19, 436:13-15.)

(ii) On August 15, 2011, Dependable Abrasives served discovery responses in Jessie Malone v. Pangborn Corp., et al., providing that the company reserved its name in 1985. (See Doc. No. [57-2 at ECF pp. 5].)

(iii) On July 25, 2010, James Dickerson...