Rissmiller v. NGK N. Am., Inc.

JACK R. RISSMILLER, JR., individually and asadministrator of the estate of Michelle M. Rissmiller, deceased, Plaintiff, v. NGK NORTH AMERICA, INC.; NGK INSULATORS, LTD;LEN VELKY; CABOT CORPORATION; NGK METALS CORPORATION, Defendants.

No. 5:18-cv-00597

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

September 4, 2018

OPINION

Plaintiff's Motion to Remand, ECF No. 9 - Granted

Joseph F. Leeson, Jr. United States District Judge

I. Introduction

Four of the Defendants in this action—three corporate entities: NGK North America, Inc., NGK Insulators, Ltd., and Cabot Corporation (Corporate Defendants), and one individual: Len Velky—have filed a notice of removal from Pennsylvania state court asserting that this Court has subject matter jurisdiction under 28 U.S.C. § 1332 based on diversity of citizenship. See Notice of Removal ¶ 5, ECF No. 1.¹ In evaluating subject matter jurisdiction, the Defendants request that the Court disregard the citizenship of Mr. Velky, the sole non-diverse defendant, because the plaintiff fraudulently joined him in the action. See id. ¶ 25. Plaintiff JackR. Rissmiller, Jr., individually and as administrator of the Estate of Michelle M. Rissmiller, deceased, has filed a motion to remand this case to Pennsylvania state court because Mr. Velky was properly joined. See Pl.'s Mot. Remand 1, ECF No. 9. Defendants oppose the motion to remand. See Cabot Resp. Opp'n Pl.'s Mot. Remand 2, ECF No. 13; Velky and NGK Metal Resp. Opp'n Pl.'s Mot. Remand 4, ECF No. 14; NGK North America Resp. Opp'n Pl.'s Mot. Remand 4, ECF No. 16. Because Defendants fail to meet the heavy burden in showing that Rissmiller's claims against Velky have no reasonable basis in fact or colorable ground or that Rissmiller has no real intention in good faith to prosecute the action against Velky, the Court grants Rissmiller's motion.

II. Background

A. Procedural Background

In January 2018, Mr. Rissmiller filed a civil action complaint in the Court of Common Pleas of Philadelphia County, Pennsylvania. See Notice of Removal, Ex. 1. The Complaint names Corporate Defendants and Mr. Velky as defendants. See Compl. ¶¶ 3-4, 6-7. Cabot filed a Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446 alleging that Mr. Velky was fraudulently joined, and the other Defendants consented to the removal. See Notice of Removal ¶¶ 25-26, Ex. 2. Thereafter, Rissmiller filed an Amended Complaint and the present Motion to Remand, contending that Mr. Velky was not fraudulently joined and that the Court must therefore remand the action to state court pursuant to 28 U.S.C. § 1447(c) because the Court lacks subject matter jurisdiction over the action.

B. Factual Background

The Complaint alleges the following facts.

At various times, Corporate Defendants operated a beryllium manufacturing facility in Reading, Pennsylvania (the Plant). See Compl. ¶¶ 9-10, 15-16. Cabot and its predecessors in interest operated the Plant for at least fifty years prior to 1986. See id. ¶ 10. NGK North America and NGK Insulators operated the Plant from approximately 1986 to 2001. See id. ¶ 9. The Plant manufactured, produced, and cleaned beryllium products from 1936 to 1992. See id. ¶¶ 15-16.

The Complaint alleges that Mr. Rissmiller's spouse, Michelle Rissmiller, contracted chronic beryllium disease as a result of her exposure to beryllium from the Plant and she perished from the disease in 2017. See id. ¶ 23. From 1962 to 2017, Ms. Rissmiller resided within at least 17.9 miles from the Plant, and regularly lived within 6.3 miles from the Plant. See id. ¶ 12. Mr. Rissmiller alleges several claims against Corporate Defendants: negligence, strict liability for abnormally dangerous activity, civil conspiracy/exemplary damages, exemplary damages, fraudulent concealment or nondisclosure, wrongful death, and a survival action. See id. ¶¶ 32, 38, 53, 57, 60, 64, 73.

The Complaint alleges that all times while Ms. Rissmiller resided near the Plant, Mr. Velky was involved in enforcing safety policies and air control and making representations regarding policies. See id. ¶ 41. Mr. Velky knowingly participated in the allegedly tortious conduct of Corporate Defendants in advocating for dangerous emission standards and actively misleading the public. See id. ¶ 42. Velky was aware that false assurances were made to the public regarding beryllium exposure. See id. ¶ 41. Mr. Rissmiller alleges several claims against Mr. Velky: negligence, civil conspiracy/exemplary damages, exemplary damages, fraudulent concealment or nondisclosure, wrongful death, and a survival action. See id. ¶¶ 44, 53, 57, 60, 64, 73.

III. Standard of Review - Fraudulent Joinder

In a diversity of citizenship action, a court has jurisdiction over the matter in controversy if the "sum or value exceeds $75,000 . . . and is between . . . citizens of different States[.]" See 28 U.S.C. § 1332(a). Under 28 U.S.C. § 1447(c), a court must remand the case if the court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). However, "[t]he doctrine of fraudulent joinder represents an exception to the requirement that removal be predicated solely upon complete diversity." In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006). If a court determines that the joinder of a party was fraudulent, the court can "disregard, for jurisdictional purposes, the citizenship of [the non-diverse defendant]" and retain subject matter jurisdiction; however, if the joinder is not fraudulent, the court does not have subject matter jurisdiction and must remand the case to state court. Id. (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).

A defendant has been fraudulently joined if "there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment." Id. (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)). Claims against the joined defendant are not colorable if they are "wholly insubstantial and frivolous." Batoff v. State Farm Ins. Co., 977 F.2d 848, 853 (3d Cir. 1992).

On motion for remand, a court must "focus on the plaintiff's complaint at the time the petition for removal was filed[.]" Batoff, 977 F.2d at 851 (quoting Steel Valley Author. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)). A court "must assume as true all factual allegations of the complaint." Id. "It also must 'resolve any uncertainties as to the currentstate of controlling substantive law in favor of the plaintiff.'" Id. (quoting Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). A court may engage in "a limited consideration of reliable evidence that the defendant may proffer to support the removal . . . [, including] the record from prior proceedings . . . or in other relevant matters that are properly subject to judicial notice." Briscoe, 448 F.3d at 220. In doing so, a court must be careful to not cross the "threshold jurisdictional issue into a decision on the merits." Id. at 219.

The removing party has a "heavy burden of persuasion" because removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." Batoff, 977 F.2d at 851 (quoting Steel Valley, 809 F.2d at 1010, 1012 n.6). "[T]he inquiry into the validity of a complaint triggered by a motion to dismiss under Rule 12(b)(6) is more searching than that permissible when a party makes a claim of fraudulent joinder." Id. at 852. "[I]t is possible that a party is not fraudulently joined, but that the claim against that party ultimately is dismissed for failure to state a claim upon which relief may be granted." Id. "If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court." Boyer, 913 F.2d at 111 (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983)).

IV. Analysis

A. There is a reasonable basis in fact or colorable ground supporting Mr. Rissmiller's negligence and fraudulent concealment claims against Mr. Velky.

i. There is a reasonable basis in fact or colorable ground supporting Mr. Rissmiller's negligence claim against Mr. Velky.

To establish a negligence claim, "[a] plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to theplaintiff, and the plaintiff suffered an actual loss or damage." Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). "Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances." Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009) (quoting Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)). Pennsylvania law recognizes the "participation theory" of liability in a negligence action; an officer of a corporation can be held liable for the tort of a corporation if he "specifically directed the particular act to be done or participated, or cooperated therein." Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 90 (Pa. 1983). Corporate officers may be held liable for "misfeasance" but not "mere nonfeasance." Id.

As set forth above, the Complaint alleges that Mr. Velky knowingly participated in failing to reduce beryllium emissions, advocating for dangerous emission standards, and actively misleading the public regarding emissions. See Compl. ¶¶ 41-42. At a minimum, therefore, the Complaint alleges that Mr. Velky engaged in misfeasance by actively participating in the allegedly negligent action.

Cabot, in support of its opposition to Mr. Rissmiller's Motion, has submitted an affidavit from Mr. Velky as well as excerpts of deposition...