AARON M. KINLAW, et al., Plaintiffs,
v.
THE CHEMOURS COMPANY FC, LLC, et al., Defendants.
No. 7:20-CV-188-D
United States District Court, E.D. North Carolina, Southern Division
September 30, 2021
ORDER
JAMES C. DEVER III United States District Judge
On September 15, 2020, Aaron M. Kinlaw, Kristina H. Kinlaw, K.K., D.K., C.K., Freddie E. Tyus, Marilou B. Tyus, Catherine B. Bass, William P. Edge, Nancy R. Edge, Phillip A. Edge, Caitlin A. Barnes, Troy D. Hill, Mary F. S. Hill, Richard A. Lohr, Jr., Sherri L. Lohr, M.F.L., Robert E. L. Lucas, Theresa M. Lucas, David P. Smith, Emma M. Smith, Wade H. Singletary, Denise Singletary, Joshua Singletary, Mark Vaughn, Tonja Vaughn, John D. Cain, Lola A. F. Cain, Tracy D. Cain, H.N.S., J.P.S., and Clyde T. Furr (collectively, "plaintiffs") filed this action in Bladen County Superior Court against The Chemours Company FC, LLC ("Chemours FC"), The Chemours Company ("Chemours"), E.I. DuPont de Nemours and Company, Inc. ("DuPont"), E.I. DuPont Chemical Corporation ("DuPont Chemical"), [1] Corteva, Inc., and DuPont de Nemours, Inc. (collectively, the "corporate defendants"), and Ellis H. McGaughy ("McGaughy"), Brian D. Long ("Long"), and Michael E. Johnson ("Johnson") (collectively, the" N.C. defendants") (altogether, "defendants"). See Compl. [D.E. 1-1] 12-84. On October 6, 2020, defendants jointly and timely
removed the action to this court based on federal diversity jurisdiction under 28 U.S .C. § 1332 [D.E. 1]. On October 13, 2020, defendants moved to dismiss for failure to state a claim [D.E. 13] and filed a memorandum in support [D.E. 14]. On November 25, 2020, plaintiffs filed a motion to remand the action to state court [D.E. 59] and filed a memorandum in support and exhibits [D.E. 60]. Plaintiffs contend complete diversity does not exist due to their tort claims against the N.C. defendants. On December 30, 2020, defendants responded in opposition [D.E. 61]. On February 8, 2021, plaintiffs replied [D.E. 68].
As explained below, for the reasons discussed in Lohr v. Chemours Co. FC. LLC, No. 7:20-CV-189-D, slip op. at 8-20 (E.D. N.C. Sept. 27, 2021), plaintiffs fraudulently joined defendant Long and fraudulently asserted a private nuisance claim against defendants McGaughy and Johnson. Thus, the court dismisses Long and dismisses the private nuisance claim against McGaughy and Johnson. Nonetheless, because plaintiffs have alleged possible causes of action against McGaughy and Johnson for trespass to real property, negligence, and negligent failure to warn, complete diversity does not exist. Accordingly, the court remands the action to Bladen County Superior Court.
I.
The action concerns the alleged release of perfluorinated chemicals ("PFCs"), also known as perfluoroalkyl substances ("PFAS"), from the Fayetteville Works Site. See Compl. ¶¶ 1, 33-34. Nearly verbatim, the complaint alleges the same facts as Lohr concerning the same defendants. Compareid.¶¶ 15-154 with Compl. ¶¶ 48-188, Lohr, No. 7:20-CV-189-D (E.D. N.C. Oct. 6, 2020), [D.E. 1-1] [hereinafter Lohr Compl.]. The facts form the basis for the same claims for trespass to real property, private nuisance, negligence, and negligent failure to warn against the N.C. defendants as in Lohr. Compare Compl. ¶¶ 174-98, 207-13 wife Lohr Compl. ¶¶ 208-32, 241-47.
This action differs from Lohr in that instead of alleging property damage, plaintiffs allege that
through the operation of the Fayetteville Works Site, defendants "released toxic PFAS chemicals to the air, soil, and groundwater," causing plaintiffs to suffer "an increased risk of illness, disease or other disease process," resulting in the "need to incur the costs of reasonably medically necessary diagnostic testing for the early detection of illness, disease or disease processes." Compl. ¶¶ 155-62. Thus, in addition to the damages sought in Lohr, plaintiffs in this action seek medical monitoring. See Id. at 83. This action also alleges a battery claim against all defendants. See Id. ¶¶ 234-44.
II.
On October 6, 2020, defendants jointly removed the action to this court pursuant to 28 U.S.C. § 1441 [D.E. 1]. On November 25, 2020, plaintiffs moved to remand the action to state court, arguing that the court lacks subject-matter jurisdiction based on diversity of citizenship because...
