IRENE C. BERGER, District Judge.
The Court has reviewed Defendant Greyhound Lines, Inc.'s Notice of Removal (Document 1). The Court has treated the allegations contained therein as true. In addition, the Court has reviewed the Plaintiffs' Emergency Motion for Remand and for § 1447(c) Fees and Costs (Document 4). For the reasons stated herein, the Court finds that removal was improper because a properly joined and served Defendant is a citizen of West Virginia.
The Plaintiffs, Raegena Boggs and her husband, Paul Boggs, initiated this action on April 30, 2019 in the Circuit Court of Kanawha County as part of the West Virginia asbestos litigation.
The Plaintiffs are residents of Colorado. As relevant to removal, Greyhound Lines is a Delaware corporation with a principal place of business in Texas. ArvinMeritor, Inc. is an Indiana corporation with a principal place of business in Michigan.
On February 7, 2020, Vimasco filed a motion for summary judgment, asserting that there is no evidence Ms. Boggs was exposed to asbestos as a result of its products. The Plaintiffs had not responded to the motion for summary judgment at the time of removal. The state court had not ruled on the motion. Trial was scheduled to begin in state court on February 11, 2020, and a jury was empaneled. The Defendants removed the matter on that date. The Plaintiffs indicate that the state court released the jury with instructions to return on Tuesday, February 18, 2020.
An action may be removed from state court to federal court if it is one over which the district court would have had original jurisdiction. 28 U.S.C. § 1441(a).
Section 1446 provides the procedure by which a defendant may remove a case to a district court under Section 1441. Section 1446 requires that "[a] defendant or defendants desiring to remove any civil action from a State court shall file . . . a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). Section 1446(b)(3) provides that "if the case stated by the initial pleading is not removable" defendants may remove within 30 days of receipt 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." However, cases may not be removed under Section 1446(b)(3) more than one year after commencement of the action, absent bad faith on the part of the plaintiff. 28 U.S.C. § 1446(c)(1). Further, where a non-diverse party is dismissed from a state action, whether removal is available depends upon whether the dismissal was voluntary on the part of the plaintiff. Only "[i]f the plaintiff voluntarily dismissed the state action against the non-diverse defendant, creating complete diversity," may the action be removed. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1988).
It is the long-settled principle that the party seeking to adjudicate a matter in federal court, through removal, carries the burden of alleging in its notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter. Strawn et al. v. AT &T Mobility, LLC et al., 530 F.3d 293, 296 (4th Cir. 2008); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) ("The burden of establishing federal jurisdiction is placed upon the party seeking removal.") (citation omitted). Accordingly, in this case, the removing defendant has the burden to show the existence of diversity jurisdiction by a preponderance of the evidence. See White v. Chase Bank USA, NA., Civil Action No. 2:08-1370, 2009 WL 2762060, at *1 (S.D. W.Va. Aug. 26, 2009) (Faber, J.) (citing McCoy v. Erie Insurance Co., 147 F.Supp.2d 481,488 (S.D. W.Va. 2001)). In deciding whether to remand, because removal by its nature infringes upon state sovereignty, this Court must "resolve all doubts about the propriety of removal in favor of retained state jurisdiction." Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).
"The `fraudulent joinder' doctrine permits removal when a non-diverse party is (or has been) a defendant in the case. . . . This doctrine effectively permits a district court to disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction." Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). The Fourth Circuit sets a high standard for defendants attempting to demonstrate fraudulent joinder: "[T]he removing party must establish either: that there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court, or; that there has been outright fraud in the plaintiff's pleading of jurisdictional facts." Id. at 464 (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)) (emphasis in original; brackets removed). Courts may consider the record beyond the pleadings to "determine the basis of joinder" and "whether an attempted joinder is fraudulent." AIDS Counseling & Testing Centers v. Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990) (internal quotation marks and citations omitted).
The Fourth Circuit has described the standard for fraudulent joinder as "even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Hartley, 187 F.3d at 424. Furthermore, "all legal uncertainties are to be resolved in the plaintiff's favor in determining whether fraudulent joinder exists" and "courts should resolve all doubts about the propriety of removal in favor of retained state court jurisdiction." Id. at 425 (internal quotation marks removed).
The Hartley court went on to explain:
Id.
Greyhound removed this action based on the filing of a motion for summary judgment by a Defendant based in West Virginia. The Plaintiffs argue that a motion for summary judgment does not provide a basis for removal under 28 U.S.C. § 1446 and that a contested motion for summary judgment does not establish fraudulent joinder. They seek immediate remand, and request that the Court retain jurisdiction for the limited purpose of awarding costs and fees pursuant to 28 U.S.C. § 1447(c).
Vimasco remains an active Defendant in this matter. The standard for establishing fraudulent joinder is high. The Defendants' position that this Court should resolve a motion for summary judgment involving a West Virginia Defendant, turning on disputes regarding the factual record and evidence, to find that Vimasco was fraudulently joined falls laughably short of meeting that standard. Even if the motions for summary judgment were successful in state court, removal is not permissible "if the non-diverse party has been involuntarily dismissed by order of the state judge" in light of the possibility of an appeal. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1988).
Wherefore, after thorough review and careful consideration, the Court
The Court further
The Court
28 U.S.C. § 1441(a).