Michel v. Ford Motor Company (E.D. La., Aug. 28, 2018)

Our plain-English summary of Michel v. Ford Motor Company (U.S. District Court, Eastern District of Louisiana, August 28, 2018).

Victor Michel, a Louisiana citizen, sued many companies in state court in 2017 after being diagnosed with mesothelioma. He had worked from 1965 to 2005 as a parts delivery driver, truck mechanic, generator service technician and owner operator. After he died, his survivors were substituted as plaintiffs. Cummins removed the case to federal court, arguing that Taylor-Seidenbach, the only Louisiana defendant left, had been improperly joined to defeat diversity. The plaintiffs moved to remand. The court looked beyond the pleadings and found the case had focused on gasket and friction products, and none of the plaintiffs' experts or witnesses addressed Taylor-Seidenbach's products. An affidavit from a former Taylor-Seidenbach employee did not show that Michel was exposed to its products, since he only occasionally serviced generators at those sites. The court held Taylor-Seidenbach was improperly joined. It also held removal was timely, because the 30 days ran from receipt of the final expert deposition transcript. The motion to remand was denied.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: August 28, 2018
• Docket: Civil Action No. 18-4738
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The district court denied the plaintiffs' motion to remand, finding Louisiana defendant Taylor-Seidenbach was improperly joined and Cummins' removal was timely, so the case stays in federal court.

What the court held. A non-diverse defendant is improperly joined when the removing party shows through summary-type evidence that the plaintiff has no reasonable possibility of recovering against it; the 30-day removal period runs from the 'other paper' that first shows the case is removable, here the final expert deposition transcript.

Issues decided: Causation, Wrongful Death and Survival, Product Identification, Venue, Removal and Transfer.

The people and their exposure

• Victor Michel: mesothelioma; died

Who	Work	Where	When	Products
Victor Michel	parts delivery driver, truck mechanic, generator service technician, and owner operator (auto mechanics and brake work)	Louisiana	1965-2005	gaskets and packing, brakes, clutches and friction materials

The defendants

• Taylor-Seidenbach, Inc. (supplier)
• Cummins, Inc. (manufacturer)
• Ford Motor Company (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Michel v. Ford Motor Company (December 28, 2018). The court granted Cummins's and Ford's motion to exclude plaintiffs' experts Dr. Brody and Dr. Castleman for late disclosure of their reports and denied plaintiffs' motion to amend the scheduling order.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Ford's and Cummins's motions to exclude or limit the expert testimony of Dr. Staggs, Dr. Finkelstein and Christopher Depasquale, so the plaintiffs' experts may testify.
• Michel v. Ford Motor Company (January 7, 2019). The court denied Cummins Inc.'s and Ford Motor Company's joint motion for summary judgment, so the plaintiffs (Michel's survivors) keep their claims against both defendants.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted Ford's motion to quash the trial subpoena to Matthew Fyie, granted plaintiffs leave to designate Fyie's deposition testimony, and granted Ford's motion to strike plaintiffs' late objections to Ford's counterdesignations of Victor Michel's testimony.
• Michel v. Ford Motor Co. (February 20, 2019). The court granted the plaintiffs' motion to amend their complaint to add survival, wrongful death, premises and employer liability claims against Ford, found strict products liability claims already pleaded, and said a continuance would cure prejudice to Ford.
• Michel v. Ford Motor Co. (May 23, 2019). The court granted Ford Motor Company's motion to dismiss only as to plaintiffs' wrongful death employer liability claim, which was dismissed with prejudice, and otherwise denied it, so plaintiffs' other wrongful death claims against Ford continue.
• Michel v. Ford Motor Company (January 21, 2020). The magistrate judge granted the Michel plaintiffs' motion for leave to file a second supplemental and amended complaint adding Ford Leasing Development Company, LLC as a defendant, over Ford Motor Company's opposition.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Smith v. Union Carbide Corp. (U.S. District Court, Eastern District of Louisiana, 2013). The federal district court denied Miriam Smith's motion to remand, finding the removal timely and not waived and Louisiana defendant Taylor-Seidenbach improperly joined, so the Removal Defendants (Dow, Ethyl, Union Carbide) prevailed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

VICTOR MICHEL, ET AL.,

v.

FORD MOTOR COMPANY, ET AL., SECTION "R" (4).

Civil Action No. 18-4738.

August 28, 2018.

United States District Court, E.D. Louisiana.

Keith Michel, On behalf of Victor Michel, Norbert Michel, On Behalf of Victor Michel & Vickie Michel, On Behalf of Victor Michel, Plaintiffs, represented by Alex S. Dunn, Jr., Gori, Julian & Associates, P.C. & Ashley Lynette Page, Gori, Julian & Associates, P.C.

Aurora Pump Company & Borg-Warner Morse Tec LLC, As successor-by-merger to Borg-Warner Corporation, Defendants, represented by Glenn L.M. Swetman, MG+M The Law Firm, Bradley Adam Hays, MG+M The Law Firm, Brandie Mendoza Thibodeaux, MG + M The Law Firm, Christopher O. Massenburg, MG+M The Law Firm, Danielle Mikel Sczesny, MG+M The Law Firm, David R. Frohn, MGM Law Firm, Helen Meredith Buckley, MG+M The Law Firm, Jeanette Seraile-Riggins, MG+M The Law Firm, Meghan B. Senter, MG+M The Law Firm, Natasha Amber Corb, MG+M The Law Firm & Quinn Kelcie Brown, MG+M The Law Firm.

Certain-Teed Corporation, Dana Companies LLC, formerly known as DCO, LLC & Pneumo Abex Corporation, Defendants, represented by Barbara Bourgeois Ormsby, Deutsch Kerrigan LLP, William Claudy Harrison, Jr., Deutsch Kerrigan LLP, Arthur Wendel Stout, III, Deutsch Kerrigan LLP, Jason P. Franco, Deutsch Kerrigan LLP & Jennifer E. Adams, Deutsch Kerrigan LLP.

Crane Company, Defendant, represented by Lawrence G. Pugh, III, Pugh, Accardo, LLC, Donna M. Young, Pugh, Accardo, LLC, Jacqueline Romero, Pugh, Accardo, LLC & Shelley L. Thompson, Pugh, Accardo, LLC.

Cummins Inc, Defendant, represented by Joseph Henry Hart, IV, Pugh, Accardo, LLC, Daniel E. Oser, Pugh, Accardo, LLC & Thomas A. Porteous, Pugh, Accardo, LLC.

Dap, Inc., Defendant, represented by Kay Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons & Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown, PLLC, Jason K. Elam, Cosmich Simmons & Brown, PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.

Ford Motor Company, Defendant, represented by Deborah DeRoche Kuchler, Kuchler Polk Weiner, LLC, Amber B. Barlow, Kuchler Polk Weiner, LLC, Janika D. Polk, Kuchler Polk Weiner, LLC, Lee Blanton Ziffer, Kuchler Polk Weiner, LLC & Monique M. Weiner, Kuchler Polk Weiner, LLC.

General Electric Company & Genuine Parts Company, Defendants, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Lacey Taylor McCoy, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C. Honeywell International, Inc., in its capacity as successor to Bendix and successor in Interest to AlliedSignal, Inc., Defendant, represented by Eric Shuman, McGlinchey Stafford, PLLC & Sarah Elizabeth McMillan, McGlinchey Stafford, PLLC.

Metropolitan Life Insurance Company, Defendant, represented by Jay Morton Jalenak, Jr., Kean Miller & Patrick Dale Roquemore, Kean Miller.

Union Carbide Coporation, Defendant, represented by McGready Lewis Richeson, Pugh, Accardo, Haas, Radecker & Carey, Ernest G. Foundas, Pugh, Accardo, LLC, Francis Xavier deBlanc, III, Pugh, Accardo, Haas, Radecker & Carey, Kathleen Erin Jordan, Pugh, Accardo, Haas, Radecker & Carey, Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey & Perrey S. Lee, Pugh, Accardo, LLC.

Taylor Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP.

Honeywell International, Inc., in its capacity as Honeywell, Inc, Defendant, represented by Glenn B. Adams, Porteous, Hainkel & Johnson, Matthew Edward Simmons, Porteous, Hainkel & Johnson & Nancy Lee Cromartie, Porteous, Hainkel & Johnson.

Crown Cork & Seal USA, Inc., Defendant, represented by Michael D. Lonegrass, Galloway, Johnson, Tompkins, Burr & Smith & Rodger Gregory Green, Jr., Galloway, Johnson, Tompkins, Burr & Smith.

Bridgestone Americas, Inc., Incorrectly named in the Plaintiff's petition as Bridgestone-Firestone America's Holding, Inc, Defendant, represented by Benjamin J. Guilbeau, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP & John J. Simpson, Stockwell, Sievert, Viccellio, Clements & Shaddock, LLP.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the court is plaintiffs' motion to remand.[1] For the following reasons, the Court denies the motion. I. BACKGROUND

This case arises out of Victor Michel's alleged asbestos exposure as a result of his work as a mechanic and generator service technician.[2] Michel, who was a citizen of Louisiana, worked as a parts delivery driver, truck mechanic, generator service technician, and "owner operator" from 1965 to 2005.[3] He filed this action in state court on July 28, 2017 after being diagnosed with mesothelioma.[4] Michel named numerous defendants in his complaint, including Taylor-Seidenbach, Inc. and Cummins, Inc.[5] The only remaining defendant that is a citizen of Louisiana is Taylor-Seidenbach.[6] On May 8, 2018, Cummins removed this action to this Court after receiving a deposition transcript purportedly demonstrating that Taylor-Seidenbach was fraudulently joined to defeat diversity jurisdiction.[7] Shortly thereafter, Michel died, and the Court substituted his survivors as plaintiffs.[8] Two of the survivors are also Louisiana citizens.[9] Plaintiffs have now filed a motion to remand asserting a lack of diversity jurisdiction.[10] Cummins opposes the motion.[11]

II. LEGAL STANDARD

A defendant may generally remove a civil action from state to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). A federal court has original diversity jurisdiction when complete diversity of citizenship exists between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). A defendant may remove either within thirty days of service of the initial pleading or 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. 28 U.S.C. § 1446(b). Though the Court must remand to state court if at any time before final judgment it appears that it lacks subject matter jurisdiction, the court's jurisdiction is fixed at the time of removal. 28 U.S.C. §1447(c); Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir. 1996).

Federal jurisdiction exists when the only non-diverse party is improperly joined. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004). The removing party asserting improper joinder bears a "heavy burden of proving that the joinder was improper." Id. at 576. They must establish either (1) actual fraud in pleading of jurisdictional facts, or (2) the inability of the plaintiff to establish a cause of action against the non-diverse defendant. Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, 765 (5th Cir. 2016). There are no allegations of fraud in this case. The only relevant improper joinder allegation is under the second test.

If removal is based on the second theory, the defendant must demonstrate "that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant." Id. (quoting Smallwood, 385 F.3d at 573). In analyzing whether a plaintiff has demonstrated a reasonable possibility of recovery, the district court may "conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant." Smallwood, 385 F.3d at 573. The Court may also "pierce the pleadings" and consider summary judgment-type evidence as to "discrete facts that would determine the propriety of joinder" at its discretion. Id.; see also Davidson, 819 F.3d at 766. In conducting this inquiry, the Court must "take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff." Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). The status of discovery is also a relevant consideration. Id. The Court must resolve all ambiguities in favor of the non-removing party. Id.

Further, the Court must take care not to move "beyond jurisdiction and into a resolution on the merits." Smallwood, 385 F.3d at 574. When "a showing that compels a holding that there is no reasonable basis for predicting that state law would allow the plaintiff to recover against the in-state defendant necessarily compels the same result for the nonresident defendant, there is no improper joinder; there is only a lawsuit lacking in merit." Id. No federal jurisdiction exists over such a case, and it must be remanded to state court. Id. at 576.

III. DISCUSSION

Plaintiffs move to remand for two reasons. First, they assert that Taylor-Seidenbach was properly joined. Second, they argue that even if Taylor-Seidenbach were improperly joined, defendants' removal was past the 30-day "other paper" deadline. The Court first addresses the question of improper joinder through both a 12(b)(6)-type inquiry and by piercing the pleadings. It then evaluates the timeliness of removal.

A. Cummins has proven that Plaintiffs Have No Reasonable Basis for

Recovery

To prevail in an asbestos exposure case, a plaintiff must prove that "(1) his exposure to defendant's asbestos product was significant, and (2) that this exposure caused or was a substantial factor in bringing about his mesothelioma." Robertson v. Doug Ashy Bldg. Materials, Inc., 168 So. 3d 556, 565 (La. App. 1 Cir. 2014) (citing Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1092 (La. 2009)). Plaintiffs make generic allegations in their state court petition that Taylor-Seidenbach and the other named defendants manufactured, supplied, or sold asbestos containing materials and were generally negligent in failing to provide a safe workplace.[12] Plaintiffs also allege that Michel was exposed to asbestos from unspecified Taylor-Seidenbach products at unspecified locations.[13] Plaintiffs do not assert specific fault allegations against Taylor-Seidenbach individually. When a plaintiff has stated a claim but has "misstated or omitted discrete facts that would determine the propriety of joinder," the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry. Smallwood, 385 F.3d at 573. The state court pleadings do not contain discrete facts that allow the court to determine the propriety of joining Taylor-Seidenbach in particular, so the Court moves to the summary inquiry and pierces the pleadings.

The summary inquiry requires the party alleging improper joinder to "put forward evidence that would negate a possibility of liability on the part of the [improperly joined defendant]." Travis, 326 F.3d at 650. Cummins relies on several pieces of evidence to meet its burden. First, Cummins argues that plaintiffs have shaped this case to focus on gasket and friction products.[14] None of the plaintiffs' experts reference products of the type produced by Taylor-Seidenbach in their testimony. [15] Plaintiffs' witness list similarly does not contain witnesses who could establish a reasonable possibility of proving liability against Taylor-Seidenbach.[16] Cummins also argues that the discovery deadline has passed, as has the deadline to file witness lists. Thus, it argues, plaintiffs cannot put forward new evidence that would establish a reasonable possibility of recovery against Taylor-Seidenbach.[17]

In response, plaintiffs cite an affidavit from another case, given by a former employee of Taylor-Seidenbach, Dwight Corcoran.[18] This affidavit was not included in the discovery materials exchanged by the parties in state court.[19] It lists jobsites at which Corcoran worked with asbestos containing products, some of which Taylor-Seidenbach supplied.[20]

Corcoran states in the affidavit that he installed and removed asbestos panels and asbestos trim and grout, and that he worked in proximity to pipe insulators.[21] Michel testified that he visited sites on Corcoran's list in the course of his employment for Menge Pump & Machinery.[22] Plaintiffs conclude that Corcoran's affidavit supplies a basis to find that he suffered mesothelioma from asbestos exposure to Taylor-Seidenbach products.[23]

This evidence will likely be inadmissible at trial because the discovery deadline has passed.[24] Even if it were admissible, it is insufficient to establish a reasonable chance of prevailing under state law, which requires a plaintiff to show that the defendant's products were a substantial factor in causing his injury. The Corcoran affidavit does not provide evidence that Michel worked with or was exposed to Taylor-Seidenbach's asbestos products. It also does not establish that Taylor-Seidenbach supplied asbestos-containing pipe insulation to the sites on the list. It merely states that Corcoran worked with corrugated asbestos panels, trim, and grout, and separately that he "worked closely with and next to the pipe insulators."[25] Michel testified that he went to the locations Corcoran identifies only occasionally to service standby generators located in their own sheds away from other machinery.[26] There is no evidence before the Court that Michel worked as a pipe insulator at these facilities, or that Taylor-Seidenbach provided asbestos pipe insulation there. Indeed, Corcoran does not even state that the pipe insulation at these facilities contained asbestos. At most, the Corcoran affidavit shows that Taylor-Seidenbach had asbestos products in the areas where Corcoran worked at these facilities, and Michel only occasionally worked somewhere on the premises at those same facilities. Judge Carl Barbier denied a motion to remand in a nearly identical case where the plaintiff relied on the same Corcoran affidavit. See Smith v. Union Carbide Corp., No. 13-6323, 2013 WL 6244199, at [*5] (E.D. La. Dec. 3, 2013) (holding that plaintiff did not have a reasonable chance of prevailing when he had only worked at the sites named in the Corcoran affidavit for 3-4 weeks). Because Cummins has pointed to evidence that plaintiffs cannot prevail against Taylor-Seidenbach, even with the Corocran affidavit and resolving all ambiguities in their favor, it has met its burden and shown that Taylor-Seidenbach is improperly joined as a defendant in this case. B. Removal Was Within the 30-Day Other Paper Deadline

Plaintiffs have focused their attention on the issue of improper joinder. But because they also briefly referenced timeliness of removal, the Court addresses that question as well. Plaintiffs allege that, even if Taylor-Seidenbach is improperly joined, the case must be remanded because removal was untimely.[27] Cummins had thirty days to remove from the date of receipt of "other paper" that allowed it to first ascertain that the case was removable. 28 U.S.C. § 1446(b). Plaintiffs argue that the Court should start the 30-day clock at the end of Michel's deposition on October 4, 2017,[28] because Cummins had an opportunity to cross-examine Michel that day and could have determined the strength of the case against Taylor-Seidenbach through their examination.[29] But Michel's deposition is not determinative, because plaintiffs still had the opportunity at that time to obtain evidence of Taylor-Seidenbach's liability through discovery.

Plaintiffs' last opportunity to obtain additional evidence was on April 5, 2018 when plaintiffs' final witness, Dr. Brent Staggs, was deposed.[30] Neither this deposition nor any previous discovery provided evidence raising a reasonable possibility of recovery against Taylor-Seidenbach. Cummins received the transcript of the Staggs deposition on April 9, 2018.[31] Therefore, this transcript constitutes "other paper" under 28 U.S.C. § 1446(b), and Cummins removed within the statute's 30-day deadline on May 8, 2018.[32]

IV. CONCLUSION

For the foregoing reasons, plaintiffs' motion to remand is DENIED.

[1] R. Doc. 28.

[2] R. Doc. 1 at 2.

[3] R. Doc. 1-2 at ¶ 6.

[4] Id.

[5] Id.

[6] See R. Doc. 1 at 6-8.

[7] Id. at 9-16.

[8] R. Doc. 21.

[9] R. Doc. 28-5.

[10] R. Doc. 28.

[11] R. Doc. 32.

[12] R. Doc. 1-2 at ¶¶ 7, 14-16.

[13] Id. at ¶ 10.

[14] R. Doc. 32 at 5.

[15] Id. at 6-8.

[16] Id. at 8.

[17] R. Doc. 1-49.

[18] R. Doc. 28 at 9; R. Doc. 28-8.

[19] R. Doc. 32 at 11.

[20] R. Doc. 28-8.

[21] Id.

[22] R. Doc. 1-35 at 89.

[23] R. Doc. 28-1 at 8-9.

[24] R. Doc. 1-49.

[25] R. Doc. 28-8 at 2.

[26] R. Doc. 1-35 at 89-92.

[27] R. Doc. 28-1 at 10.

[28] See R. Doc. 32-9.

[29] Id.

[30] See R. Doc. 1-42.

[31] See R. Doc. 1-43.

[32] See R. Doc 1.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites