Anthony v. Small Tube Mfg. Corp., Civil Action No. 06-CV-4419.

• Citation: 535 F.Supp.2d 506
• Decision Date: 27 September 2007
• Docket Number: Civil Action No. 06-CV-4419.
• Parties: Gary ANTHONY, On behalf of Himself and Others Similarly Situated, Plaintiffs v. SMALL TUBE MANUFACTURING CORP., doing business as Small Tube Products Corp., Inc.; Admiral Metals, Inc.; Tube Methods, Inc., and Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki Berylco Industries, Inc. and the Beryllium Corporation c/o C.T. Corporation Systems, Defendants and Ametek, Inc.; Brush Wellman, Inc.; and Millennium Petrochemicals, Inc., formerly known as National Distillers and Chemical Corporation, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 506

535 F.Supp.2d 506

Gary ANTHONY, On behalf of Himself and Others Similarly Situated, Plaintiffs v. SMALL TUBE MANUFACTURING CORP., doing business as Small Tube Products Corp., Inc.; Admiral Metals, Inc.; Tube Methods, Inc., and Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki Berylco Industries, Inc. and the Beryllium Corporation c/o C.T. Corporation Systems, Defendants and Ametek, Inc.; Brush Wellman, Inc.; and Millennium Petrochemicals, Inc., formerly known as National Distillers and Chemical Corporation, Third-Party Defendants.

Civil Action No. 06-CV-4419.

United States District Court, E.D. Pennsylvania.

September 27, 2007.

Ruben Honik, Esquire and Stephan Matanovic, Esquire, Philadelphia, PA, for Plaintiff.

Joseph G. Litvin, Esquire, Dayton, OH, and Kenneth J. Warren, Esquire, Philadelphia, PA, for Defendant Small Tube Manufacturing Corporation, doing business as Small Tube Products Corp., Inc.

Rochelle M. Fedullo, Esquire, Philadelphia, PA, for Defendant Admiral Metals Inc.

David C. Onorato, Esquire, Lansdale, PA, Gregory W. Fox, Esquire, Philadelphia, PA, and Stephen M. Hladik, Esquire, Paoli, PA, for Defendant Tube Methods, Inc.

Neil S. Witkes, Esquire, Bala Cyynwyd, PA, for Defendant Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki. Berylco Industries, Inc. and the Beryllium Corporation, c/o C.T. Corporation Systems,

Kevin M. Donovan, Esquire, Philadelphia, PA, for Third-Party Defendant Ametek, Inc.

Morton F. Daller, Esquire, Fort Washington, PA, for Third-Party Defendant Brush Wellman, Inc.

Joseph M. Profy, Esquire, Philadelphia, PA, for Third-Party Defendant Millenium Petrochemicals, Inc., formerly known as National Distillers and Chemical Corporation.

OPINION

JAMES KNOLL GARDNER, District Judge.

This matter is before the court on Plaintiff's Motion for Remand, which motion was filed on November 2, 2006.¹ By Order dated April 17, 2007, I scheduled oral argument on plaintiffs motion. I conducted argument on plaintiffs motion on June 28, 2007.² For the reasons expressed below, I deny Plaintiffs Motion for Remand.

JURISDICTION

Jurisdiction is based upon diversity jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A). This court has supplemental jurisdiction over the third-party state law claims pursuant to 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiffs claims allegedly occurred in Sellersville, Berks County, Pennsylvania, which is located in this judicial district.

BACKGROUND

Plaintiff commenced the within matter, Anthony v. Small Tube Manufacturing Corporation, civil action number 06-CV-4419, on September 7, 2006 by filing a Class Action Complaint in the Philadelphia County Court of Common Pleas.³ The complaint alleges that defendants were negligent in the manufacturing, distribution and sale of beryllium-containing products and have exposed the members of the putative class to potentially hazardous levels of beryllium.

The complaint specifically avers that defendants provided the following amounts of beryllium-containing material to the U.S. Gauge Facility: (1) Admiral Metals, Inc. ("Admiral Metals") — at least 318 pounds; (2) Cabot Corporation ("Cabot") — many thousand pounds, over many years; (3) Small Tube Manufacturing Corp. ("Small Tube") — at least 2,929 pounds; and (4) Tube Methods, Inc. ("Tube Methods") — at least 112, 729 pounds.

The putative class is defined as "[a]ll current and former employees of the U.S. Gauge facility who have ever been exposed to one or more of the Defendants' beryllium-containing products for a period of at least one (1) month while employed at the U.S. Gauge facility."⁴

The class is alleged, to consist of at least several thousand members.⁵ Plaintiff avers that the U.S. Gauge facility utilized beryllium-containing products from at least 1972 to the present.⁶

Plaintiff, on behalf of the putative class, seeks the establishment of a medical monitoring program, or the costs thereof, funded by defendants under Court supervision. Plaintiff seeks lifetime testing as well as preventative and diagnostic screening. Plaintiff also seeks costs and attorney fees.

On October 4, 2006, defendant Cabot removed this action to the United States District Court for the Eastern District of Pennsylvania pursuant to the Class Action Fairness Act of 2005 ("CAFA"), Pub.L.No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of Title 28 of the United States Code). In its Notice of Removal, Cabot avers that a reasonable reading of the value of the rights that plaintiff claims establishes that the aggregate amount in controversy for several thousand persons is in excess of $5,000,000.

Cabot also asserts in its removal papers that Cabot was a Delaware corporation with its principal place of business located in the Commonwealth of Massachusetts at the time the action was removed, Moreover, Cabot avers that it believed that greater than two-thirds of the putative class were citizens of the Commonwealth of Pennsylvania when the action was removed. Based on these averments, Cabot contended that there was sufficient diversity of citizenship for the purposes of CAFA at the time of removal.

CONTENTIONS OF THE PARTIES

Plaintiffs Motion for Remand was filed on November 2, 2006. Plaintiffs motion asserts that the home-state controversy exception to the Class Action Fairness Act of 2005 applies to this action and that the court may not assert Jurisdiction over this case.

According to plaintiff at least two-thirds of the putative class are Pennsylvania citizens and "the primary defendant" from whom relief is sought is a Pennsylvania citizen. Plaintiff asserts that the allegation that greater than two-thirds of the putative class are Pennsylvania citizens is undisputed and should be accepted as true for the purpose of this motion.

Plaintiff acknowledges that "primary defendant" is not defined in the statute, but contends that CAFA's legislative history provides guidance. Plaintiff argues that the legislative history suggests that the primary defendant should be the party or parties with significant exposure for the liabilities set forth in the complaint.

Following this reasoning, plaintiff asserts that as alleged in its Class Action Complaint, defendant Tube Methods sold at least 112,729 pounds of beryllium to the facility at which plaintiff and the putative class worked. Thus, plaintiff contends that Tube Methods' sales to the facility during the relevant time period exceeds those of all other defendants combined by several orders of magnitude. Plaintiff also points out that, as alleged in the complaint, Tube Methods is a citizen of Pennsylvania.

Therefore, plaintiff contends that because" two-thirds or more of the putative class are Pennsylvania citizens, and Tube Methods, the primary defendant, is also a Pennsylvania citizen, this court must decline to exercise jurisdiction under the mandatory home-state controversy CAFA exception. Finally, plaintiff asserts that all doubts as to the propriety of removal must be resolved in favor of remand.

Defendant Tube Methods strongly opposes plaintiffs assertions. Tube Methods contends that plaintiff has not challenged defendant Cabot's assertion of original CAFA subject matter jurisdiction, but has instead sought to invoke an exception to CAFA jurisdiction. Tube Methods argues that plaintiff fails to demonstrate any of the requirements of the CAFA home-state controversy exception, and the exception does not apply to this case.

Tube Methods contends that the removing defendant bears the burden of proof with respect to original subject jurisdiction pursuant to CAFA, but that plaintiff bears the burden of proving that the home-state controversy exception applies. Tube Methods argues that the proposed class contains 100 or more members, the aggregate amount in controversy exceeds $5,000,000 and at least one member of the plaintiff class is diverse from at least one defendant. Thus, Tube Methods argues, original CAFA jurisdiction is satisfied.

However, Tube Methods contends that plaintiff has failed to meet its burden to demonstrate that the home-state controversy exception applies. Tube Methods asserts that plaintiff offered no evidence beyond mere averments that two-thirds or more of the putative class are Pennsylvania citizens. Tube Methods argues that none of the paragraphs of the Class Action Complaint refer to the citizenship of the class members other than the class representative (who is a Pennsylvania citizen). Moreover, defendant argues that even if the complaint did contain such allegations, these allegations would be insufficient to satisfy plaintiff's burden without further evidence.

Tube Methods also asserts that plaintiffs reliance on defendant Cabot's averments in its Notice of Removal is insufficient. Although defendant Cabot acknowledged that more than two-thirds of the putative class are Pennsylvania citizens, Tube Methods avers that this is not the position of all named defendants. Tube Methods contends that it is without knowledge or information as to the citizenship of the class at the time the complaint was filed and does not agree that more than two-thirds of the class are Pennsylvania citizens.

Tube Methods also denies that it is the primary defendant for the purpose of establishing the home-state controversy exception. Tube Methods specifically denies that it sold at least 112,727 pounds of beryllium to the U.S. Gauge facility. Tube Methods avers that it only "worked on" 1,358.2 pounds of beryllium-containing material, and further avers that it did not sell any material to the facility.⁷ Thus, based on plaintiffs own liability exposure-based analysis (to determine primary defendants), Tube Methods contends it has less exposure than other named defendants, including defendant Cabot.

Lastly, Tube Methods argues that even if it is considered a...