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Netzer v. Union Carbide Corp.

United States District Court, D. Maryland, Northern Division

October 31, 2014

HENRY G. NETZER, Plaintiff,
UNION CARBIDE CORP., et al., Defendants.


WILLIAM D. QUARLES, Jr., District Judge.

Henry Netzer sued Union Carbide Corp., and others, in the Circuit Court for Baltimore City in an asbestos product liability action. ECF No. 2. CBS Corp.[1] ("CBS") removed to this Court. ECF No. 1. Pending is Netzer's motion to remand. ECF No. 120. No hearing is necessary. Local Rule 105.6 (D. Md. 2014). For the following reasons, the motion to remand will be granted.

I. Background[2]

Netzer was born in Baltimore and is a lifelong resident of Maryland. ECF No. 1 ¶ 19; see also ECF No. 125-8 at 20. From 1955 to 1979, Netzer was allegedly exposed to asbestos-containing dust. ECF No. 125-4 at 6.[3] Asbestos-containing Micarta[4] material was used in Netzer's father's sheet metal business; Netzer and his father sawed and sanded the material, generating dust. Id. at 34; ECF No. 125-5 at 5. From 1939 to 1972, Netzer's father worked at Westinghouse facilities and was exposed to asbestos-containing materials. ECF No. 125-4 at 34.[5] Netzer was allegedly exposed to asbestos-containing dust from his father's work clothes when his mother shook the dust off the clothes before washing them. Id.; ECF No. 125-8 at 49. In March 2013, Netzer was diagnosed with Mesothelioma. ECF No. 125-4 at 16.

On May 14, 2013, Netzer sued Maryland-based and non-Maryland-based defendants in the Circuit Court for Baltimore City. ECF Nos. 2-1, 2-2.[6] On May 23, 2013. CBS was served with Netzer's short form complaint. ECF No. 1 ¶ 1. On July 9, 2013, Baltimore City Circuit Court Judge John M. Glynn entered a Consolidation Order and Pre-Trial Schedule ("pre-Trial Schedule") in Netzer's case. ECF No. 125-3 at 2. The Pre-Trial Schedule included the following deadlines:

- November 13, 2013: Netzer to provide answers to interrogatories identifying worksites and asbestos-containing products at each site;
- January 27, 2014: Netzer to "identify fact witnesses who may testify at trial";[7]
- May 7, 2014: "Last day for deposition of [Netzer's] fact witnesses he can voluntarily produce for deposition without subpoena by defendants";[8]
- May 26, 2014: Netzer to "name most likely to use' general product identification fact witnesses from the original fact witness list who have previously been deposed";[9]
- June 9, 2014: "Last day for deposition of [Netzer's] fact witnesses who [Netzer was] unable to voluntarily produce for deposition without a subpoena by defendants."

ECF No. 125-3 at 3-4.

On November 1, 2013, CBS received Netzer's answers to defendants' joint interrogatories. ECF No. 1 ¶ 4; see also ECF No. 125-4. On November 5, 2013, CBS received Netzer's supplemental or amended answers. ECF No. 1 ¶ 5; see also ECF No. 125-5. As to the possibility of identifying sources of Netzer's alleged asbestos exposure other than Westinghouse products, the answers and supplemental or amended answers stated that Netzer's "investigation is continuing." ECF Nos. 1 ¶ 7; 125-4 at 34; 125-5 at 7. On April 16, 2014 and May 9, 2014, Netzer served CBS with more than 700 requests for admission and 42 interrogatories and document requests. ECF Nos. 125 at 3, 125-6. No written discovery requests were served on Maryland-based defendants. ECF No. 125 at 3.

On May 14, 2014, CBS removed to this Court. ECF No. 1. On June 6, 2014, Netzer moved to remand to the Circuit Court for Baltimore City. ECF No. 120. On June 23, 2014, CBS opposed Netzer's motion. On July 3, 2014, Netzer replied.

II. Analysis

A. Removal under 28 U.S.C. § 1441(a)

Under 28 U.S.C. § 1441(a) (2012), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant... to the district court of the United States for the district and division embracing where such action is pending." But, if the action may only be removed to the District of Maryland based on diversity jurisdiction under 28 U.S.C. § 1332, [10] it may not be removed if any properly joined and served defendant is a citizen of Maryland. Id. § 1441(b) (2).

"If the case stated by the initial pleading is not removable, " the defendant may file a notice of removal in the district court within 30 days after receiving "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) (3) (2012). "A case may not be removed under subsection (b) (3) on the basis of jurisdiction conferred by section 1332 more than [one] year after commencement of the action, unless... the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." Id. § 1446 (c).

To determine when a defendant first had notice of grounds for removal, the Court must "rely on the face of the initial pleading and on the documents exchanged in the case by the parties." Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997). The Court need not "inquire into the subjective knowledge of the defendant, " but must consider only whether grounds for removal were "apparent within the four corners of the initial pleading or subsequent paper." Id.

All defendants must join in or consent to the removal. Id. § 1446(b) (2) (A). The removing party has the burden of proving subject matter jurisdiction. Md. Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir. 2005). Because removal raises "significant federalism concerns, " the removal statutes must be strictly construed, and all doubts must be resolved in favor of remanding the case to state court. Id.

B. Fraudulent Joinder

The doctrine of fraudulent joinder[11] allows a federal court to "disregard, for jurisdiction purposes, the citizenship of certain [in-state] defendants, assume jurisdiction over a case, dismiss th[ose] defendants, and thereby retain jurisdiction." Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.1999).[12] As the party asserting fraudulent joinder, CBS has the burden to "demonstrate either outright fraud in the plaintiff's pleading or that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court, ... even after resolving all issues of law and fact in the plaintiff's favor." Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (internal quotation marks and citation omitted).[13] The Court must "resolve all doubts about the propriety of removal in favor of retained state court jurisdiction." Id. at 425 (internal quotation marks omitted).

That a complaint would not survive a defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) does not mean that that defendant has been fraudulently joined: the standard is more favorable than the 12(b) (6) standard. Id. at 424. If there is any possibility of recovery, the defendant has not been fraudulently joined. Id. The Court may "consider the entire record, " not only the complaint, to "determine the basis of joinder by any means available." AIDS Counseling & Testing Ctr's, 903 F.2d at 1004. But, it may not act as a factfinder or "delve too far into the merits in deciding a jurisdictional question." Hartley, 187 F.3d at 425.

C. Netzer's Motion

CBS argues that the May 7, 2014 deadline triggered its right of removal under 28 U.S.C. § 1446(b) (3), and that Netzer's failure to produce additional fact witnesses before the deadline means that removal is appropriate under the fraudulent joinder doctrine. ECF No. 1 ¶¶ 23-28.[14] Netzer argues that the May 7, 2014 deadline did not trigger CBS's right of removal: "the mere existence of witness identification deadlines in a scheduling order does not, necessarily, preclude a party [from] calling a witness... after the expiration of [the] deadline." ECF No. 120 ¶¶ ¶ 16, 21, 31.[15] Netzer argues that "[a]ll claims against the non-diverse defendants remain viable." Id. ¶ 9. Accordingly, the Court must first determine whether the May 7, 2014 deadline may be construed as an "other paper from which it may first be ascertained that the case is one which is or has become removable" under 28 U.S.C. § 1446(b) (3).

The "other paper" requirement "is broad enough to include any information received by the defendant, whether communicated in a formal or informal manner." Yarnevic v. Brink's, Inc., 102 F.3d 753, 755 (4th Cir. 1996) (internal quotation marks omitted) (plaintiff's memorandum indicating his change of citizenship was sufficient to ascertain that the case was removable).[16] However, in determining "when [the defendant] learned about the grounds of removal, "[17] written notice is required;[18] oral statements are generally insufficient.[19] Courts have deemed various types of documents as "other paper" under § 1443(b) (3), including discovery responses, [20] settlement offers, [21] and emails between counsel.[22]

Although the "other paper" requirement is broadly construed, Yarnevic, 102 F.3d at 755, the Court has been unable to locate any authority for the proposition that "no paper" - here, mere passage of a deadline - is sufficient to ascertain that removal was proper. Cf. JHohman, LLC v. U.S. Sec. Associates, Inc., 513 F.Supp.2d 913, 917-18 (E.D. Mich. 2007) (finding "the lack of a paper' - namely, Plaintiff's failure to respond to requests for admissions" insufficient under § 1446(b) (3)'s requirement that the Defendant be in "receipt" of an "other paper").[23] Although CBS may have been subjectively aware of a basis for removal, "[t]he defendant's subjective knowledge... cannot independently create a right to remove the case." Bowyer v. Countrywide Home Loans Servicing LP, Civ. No. 5:09-CV-00402, 2009 WL 2599307, at *3 (S.D. W.Va. Aug. 21, 2009); Lovern, 121 F.3d at 162.[24] Strict construction of § 1446(b) (3) disfavors overlooking the requirement that the defendant be in "receipt... through service of otherwise, of a copy of an... other paper." See Md. Stadium Auth., 407 F.3d at 260. Accordingly, the passage of the May 7, 2014 deadline for deposing fact witnesses was not an "other paper" under § 1446(b) (3). Because the Court has determined that CBS's right of removal was not triggered, it need not decide whether non-diverse defendants were fraudulently joined.[25]

III. Conclusion

For the reasons stated above, Netzer's motion to remand will be granted.

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