Radosta v. Lorillard Tobacco Co. (2014)

Our plain-English summary of Radosta v. Lorillard Tobacco Co. (U.S. District Court, Eastern District of Louisiana, April 24, 2014).

Rosemary Radosta sued several defendants in Louisiana state court, seeking recovery for mesothelioma she had developed. She died in December 2013, and her sons were substituted as plaintiffs. After discovery closed, Lorillard Tobacco Co. removed the case to federal court. It argued that the in-state defendants had been improperly joined, so their presence did not block federal jurisdiction. The plaintiffs did not dispute the improper joinder. They argued that the removal was too late and asked for the case to be sent back. The court had to decide whether Lorillard removed within 30 days of receiving a paper from which it could first tell the case was removable. Lorillard pointed only to the sons' deposition transcripts. The court read them and found they contained no concrete or reliable evidence about the claims against any defendant. The court said the transcripts therefore could not have let Lorillard first ascertain that the case was removable. It held the removal untimely and remanded the case to state court. The opinion mentions that Ms. Radosta's father, the sons' grandfather, had workplaces with possible asbestos exposure about fifty years earlier, but it gives no further detail.

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: April 24, 2014
• Docket: Civil Action No. 14-0500
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court granted the plaintiffs' motion to remand to state court, holding that Lorillard Tobacco Co.'s removal was untimely.

What the court held. Under 28 U.S.C. § 1446(b)(3), the 30-day removal period runs from receipt of an "other paper" that lets the defendant first ascertain that the case is removable. Deposition transcripts that say nothing about the viability of the claims against the non-diverse defendants do not start that period.

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

The people and their exposure

• Rosemary Radosta: mesothelioma; died

The defendants

• Lorillard Tobacco Co. (manufacturer)

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.

ROSEMARY RADOSTA,

v.

LORILLARD TOBACCO CO., ET AL. SECTION: "A" (3).

Civil Action No. 14-0500.

April 24, 2014.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 3) filed by plaintiffs Dale Radosta, etal. Defendant Lorillard Tobacco Company opposes the motion (Rec. Doc. 8). The motion, noticed for submission on March 26, 2014, is before the Court on the briefs without oral argument.[1] For the reasons that follow, the motion is GRANTED.

I. BACKGROUND

Rosemary Radosta filed this action in state court against several defendants seeking recovery for the mesothelioma that she had developed. Ms. Radosta passed away in December 2013 and her sons were then substituted as plaintiffs. After the close of discovery, Defendant Lorillard Tobacco Co. ("Lorillard") removed the case to federal court alleging that the in-state defendants to this action had been fraudulently or improperly joined.

Plaintiffs now move to remand the case to state court. Plaintiffs do not take issue with the allegations of improper joinder, i.e., they do not dispute the contention that they have no evidence to support their claims against the non-diverse defendants. Rather, Plaintiffs argue that the removal was untimely and they move for remand on that basis.

II. LAW AND ANALYSIS

Title 28 U.S.C. § 1446 governs the procedural aspects of removal, including timeliness. Because this case began in state court with Louisiana citizens on both sides, complete diversity of citizenship was lacking. The case stated by the "initial pleading" was therefore not removable, which means that removal is governed by § 1446(b)(3). Section 1446(b)(3) provides that

[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, 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.A. § 1446(b)(3) (West Supp. 2013) (emphasis added). Thus, pursuant to the foregoing plain language of § 1446(b) (3), the timeliness of the removal in this case turns on whether Lorillard can establish that it received a copy of "an amended pleading, motion, order, or other paper" from which it could "first be ascertained" that the case was removable, i.e., that the non-diverse defendants were improperly joined. Lorillard filed its notice of removal on March 6, 2014 so the "other paper" upon which it relies for starting the 30 day removal period must have been received by Lorillard no earlier than February 4, 2014.

The "other paper" that Lorillard relies upon are transcripts of the discovery depositions of Rosemary Radosta's sons who were substituted in as plaintiffs after her death. According to Lorillard, the information that it had regarding the claims against the in-state defendants was equivocal prior to those depositions. (Rec. Doc. 8 at 4, Lorillard Opposition). The sons'

depositions were completed on February 6, 2014, and Lorillard argues that it was on this date at the earliest when it became unequivocally clear and certain that Plaintiffs had no evidence to support their claims against the non-diverse defendants. The Court has reviewed the sons' depositions and in light of the content of those depositions finds Lorillard's arguments regarding the probative value of the testimony to be without merit. The depositions are bereft of any concrete or reliable evidence whatsoever regarding the viability of the claims against any defendant in this case much less the nondiverse ones. The sons were substituted in as plaintiffs to carry on in Ms. Radosta's place after her passing so as to be expected they knew less than she did about her father's (their grandfather's) various workplaces and possible exposure to asbestos a half century ago. The Court is not suggesting that Ms. Radosta's deposition started the removal clock—it clearly did not given that Plaintiffs were continuing to file pleadings that included claims against the non-diverse defendants and given that the discovery cutoff date had yet to expire. But what is unequivocally clear is that the sons' depositions contain nothing that confirmed the improper joinder of the non-diverse defendants, much less anything such that those depositions could fairly be characterized as something that allowed Lorillard to first ascertain that the case was removable.

Because the sons' transcripts are the only "other paper" that Lorillard points to during the 30-day window preceding removal, and because those transcripts fail from a substantive standpoint to shed any light on the viability of the claims against any defendant, the Court concludes that the case was not timely removed.[2]

Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Remand (Rec. Doc. 3) filed by plaintiffs Dale Radosta, etal. is GRANTED. This matter is REMANDED to the state court from which it was removed pursuant to 28 U.S.C. § 1447(c).

[1] Oral argument has been requested but the parties' memoranda are more than adequate to address the issues presented. [2] The Court expresses no opinion regarding when during the course of the litigation the 30 day removal period did begin to accrue. Lorillard clearly had actual, subjective knowledge that Plaintiffs could not establish a claim against the in-state defendants once the discovery cutoff date expired. (Rec. Doc. 1, Lorillard Notice of Removal ¶¶ 3, 5). But § 1446(b)(3) does not employ a subjective standard and it requires a voluntary act by the plaintiff. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). The Court recognizes that Lorillard's dilemma was the language in § 1446(b)(3) that expressly requires "other paper," not simply the expiration of certain pretrial deadlines and certainty regarding a failure of proof. But again, there must be a connection between the specific "other paper" that the defendant points to and the ability to determine in the first instance that the case has become removable. It is this connection that is wholly absent in this case.

Sources

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