NEW ORLEANS - A change of venue from the United States District Court Eastern District of Louisiana to the Civil District Court for the Parish of Orleans, State of Louisiana was granted in civil action involving an asbestos exposure claim resulting in a diagnosis of malignant mesothelioma by Joseph Brazan against the Lamorak Insurance Company in a ruling signed by Chief Judge Nanette Jolivette Brown on July 26.
A second motion by the plaintiff requesting payment for costs, attorney’s fees and sanctions was denied.
The plaintiff alleged that he contracted the disease as a result of exposure to asbestos products at various worksites between 1960 and 1979.
The plaintiff filed a petition for damages against 20 defendants on September 29, 2017.
Asbestos exposure is the leading cause of mesothelioma.
On July 23, 2018 defendants Union Carbide and Bayer Crop Science, Inc. a successor to Rhone Poulenc AG company, formerly known as Amchem Products, Inc, f/k/a Benjamin Foster Company’s collectively known as “Removing Defendants” filed a notice of removal alleging there exists complete diversity.
The plaintiff settled with all remaining parties aside from the “removing defendants” group earlier.
The plaintiff filed an instant motion to remand, arguing that a nondiverse defendant still remains in this case which destroys complete diversity.
The plaintiff also filed an Ex Parte Motion for an expedited hearing which the court granted on July 23 setting the motion for remand for submission on July 26. The removing defendants groups field an opposition to the plaintiff’s motion on July 25.
The plaintiff contended that Reilly-Benton, Inc, a Louisiana citizen remained a nondiverse defendant in this case. Plaintiff contends that Reilly-Benton filed for bankruptcy after the plaintiff filed suit, meaning all claims against them are subject to an automatic stay. The plaintiff contended that two other sections of this court, Poche v Eagle., Inc. and Bourke v. Exxon Mobil Corp., have previously determined that an automatic stay does not result in the dismissal of a defendant for purposes of establishing diversity jurisdiction.
The defendants contended that the plaintiff voluntarily discontinued his claim against Reilly-Benton by electing to proceed to trial against only Union Carbide and Amchem. The defendant further claimed that Reilly-Benton remained in the case as a nominal defendant for the purpose of determining diversity jurisdiction.
The plaintiff contended in response that Reilly-Benton was not a nominal defendant and plaintiff did not voluntarily discontinue his claim against Reilly-Benton. Plaintiff further contended that bankruptcy proceedings would eventually be dismissed and he will then be able to proceed against Reilly-Benton.
A federal court has jurisdiction when a controversy between citizens of two different states exceeds $75,000. In considering the diversity requirement only the citizenship of the real parties in interest are relevant, nominal parties cannot prevent removal.
Since both parties agree that Reilly-Benton is a citizen of Louisiana there are no grounds for federal court jurisdiction and the case is within the jurisdiction of a Louisiana state court.
The court concluded that it will not consider improper joinder as a basis for removal since it constitutes just one ground in the case and when faced with a legitimate challenge to that ground the defendants would argue removal on a different ground.