Barabin v. Astenjohnson, Inc., CASE NO. C14-0557JLR

• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
• Decision Date: 30 June 2014
• Docket Number: CASE NO. C14-0557JLR
• Parties: GERALDINE BARABIN, as personal representative for the Estate of HENRY BARABIN, Plaintiff, v. ASTENJOHNSON, INC., et al., Defendants.

GERALDINE BARABIN,
as personal representative for the Estate
of HENRY BARABIN, Plaintiff,
v.
ASTENJOHNSON, INC., et al., Defendants.

CASE NO. C14-0557JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Dated: June 30, 2014

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
I. INTRODUCTION

This matter comes before the court on Plaintiff's motion to remand (Mot. (Dkt. # 35)). Having considered the submissions of the parties, the balance of the record, and

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the relevant law, and deeming oral argument unnecessary,¹ the court grants Plaintiff's motion to remand.

Henry Barabin was diagnosed with mesothelioma in 2006. See Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 461 (9th Cir. 2014). Mr. Barabin and his wife, Plaintiff Geraldine Barabin, filed a personal injury lawsuit against 22 defendants in December, 2006, alleging that Mr. Barabin developed mesothelioma as a result of exposure to defendants' asbestos-containing products. (1st Compl. (Dkt. # 34-4).) After multiple settlement agreements, only two defendants remained: AstenJohnson, Inc. ("Asten") and Scapa Dryer Fabrics, Inc. ("Scapa"). (See generally C7-1454JLR Dkt.) For purposes of diversity jurisdiction under 28 U.S.C. § 1332, those two defendants are diverse from the Barabins. (Not. of Rem. (Dkt. # 1) ¶ 6.)

While the personal injury action was on appeal to the Ninth Circuit, Mr. Barabin died. (See Death Certificate (Dkt. # 34-3).) Ms. Barabin filed this wrongful death action in King County Superior Court on March 18, 2014. (See Compl. (Dkt. # 1-2) at 35.) The allegations in that complaint—that Mr. Barabin developed mesothelioma as a result of exposure to defendants' asbestos-containing products—mirror the allegations in the personal injury action. (Compare Compl. with 1st Compl.) In this second action, Ms. Barabin joins as defendants not only Asten and Scapa, but also numerous other defendants not included in the first lawsuit. (Compare Compl. with 1st Compl.) At least

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one of these defendants, namely, Wright Schuchart Harbor ("Wright"), is a citizen of Washington State. (Mot. at 3.)

Scapa and Asten removed this action to federal court, asserting that the court has diversity jurisdiction under 28 U.S.C. § 1332 because the other defendants are fraudulently joined. (See Not. of Rem. ¶ 6.) Plaintiff moves to remand the case on the basis of the forum defendant rule and Wright's Washington citizenship. (See 28 U.S.C. 1441(b)(2J; Mot.) Defendants Scapa, Asten, and Wright respond that the court should disregard the citizenship of all defendants—such as Wright—not joined in the first personal injury action because the statute of limitations bars claims against them. (See Resp. (Dkt. # 43) at 5-6; see also Asten Resp. (Dkt. # 46); Wright Resp. (Dkt. # 47).) Similarly, Defendants Metalclad Insulation Corporation ("Metalclad") and Gould Pumps, Inc. ("Gould") move to dismiss the claims against them based on the statute of limitations defense. (See MTD (Dkt. # 34); Gould MTD (Dkt. # 36).)

II. ANALYSIS

A. Removal Jurisdiction

In general, a defendant may remove to federal court any state action over which a district court would have original jurisdiction. See 28 U.S.C. § 1441; Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir. 2003). Under the forum defendant rule, however, an action may not be removed solely on diversity grounds if any one of the defendants is a citizen of the forum state. Spencer v. U.S. Dist. Court for N. Dist. of Ca., 393 F.3d 867, 870 (9th Cir. 2004); 28 U.S.C. § 1441(b). To remove an action, a defendant must file with the district court a "short and plain statement of the

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grounds for removal." 28 U.S.C. § 1446(a). The "strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper, and that the court resolves all ambiguity in favor of remand to state court." Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). In addition to considering the notice of removal, "it is clearly appropriate for the district courts, in their discretion, to accept certain post-removal evidence as determinative of the jurisdictional requirements." Janis v. Health Net, Inc., 472 F. App'x 533, 534 (9th Cir. 2012) (internal punctuation omitted) (quoting Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 690-91 (9th Cir.2006)); see also Cohn v. Petsmart, Inc., 281 F.3d 837 (9th Cir. 2002); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997).

B. Fraudulent Joinder

An "exception to the requirement for complete diversity is where a non-diverse defendant has been 'fraudulently joined.'" Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). It is "commonplace that fraudulently joined defendants do not defeat removal on diversity grounds." Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1319 (9th Cir. 1998). A defendant is fraudulently joined "[i]f the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state." Id. at 1318. The statute of limitations defense is a permissible means by which to establish fraudulent joinder, and the defendant is entitled to present facts showing that the statute of limitations has run. Id. at 1318-19.

Fraudulent joinder must be proven by clear and convincing evidence. Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). The party

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charging fraudulent joinder bears the "heavy burden" of showing that the complaint "obviously fails" to state a claim. Hunter, 582 F.3d at 1044. Because the court must construe the removal statute strictly against removal jurisdiction, jurisdiction will be rejected if there is any doubt as to the right of removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Therefore, "if there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court." Hunter, 582 F.3d at 1046.

C. Statute of Limitations

The statute of limitations for a wrongful death action in Washington is three years. See Atchison v. Great W. Malting Co., 166 P.3d 662, 664 (Wash. 2007); see RCW 4.20.010; RCW 4.16.080(2). Under Washington law, statutes of limitations begin to run once the cause of action has accrued. RCW 4.16.005. It is well-settled that wrongful death actions ordinarily accrue at the time of death. Atchison, 166 P.3d at 664 (citing Dodson v. Continental Can Co., 294 P. 265, 266 (Wash. 1930)). However, under the discovery rule, if the facts of causation are unavailable at the time of death, a wrongful death action will instead accrue at the time the decedent's personal representative discovered, or should have discovered, the cause of action. White v. Johns-Manville Corp., 693 P.2d 687, 693 (Wash. 1985).

Defendants contend that, in addition to those rules, a wrongful death action is also barred where the decedent failed to bring a personal injury suit on his own behalf within

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the statute of limitations period. (See Resp. at 5-6.) Defendants' contention is predicated on the following three published cases.

In Calhoun v. Washington Veneer Company, which was decided in 1932, the court held that an adminstratrix's wrongful death claim, which was predicated on violations of the then-existing "Factory Act," accrued at the time of the negligence of the defendant—not at the time of the decedent's death. See 15 P.2d 943, 946 (Wash. 1932). Because the suit was not filed until the statute of limitations for the Factory Act had passed, the wrongful death claim was barred. Id.

Shortly thereafter, in 1935, the court in Grant v. Fisher Flouring Mills Company reversed course and recognized the "great weight of authority" holding that a wrongful death action accrues at the time of death—not the time of the injury. 44 P.2d 193, 195 (1935). To distinguish Calhoun, the court clarified that this rule was subject to the limitation that "at the time of death there must be a subsisting cause of action in the deceased." Id. Because the decedent in Grant had brought a personal injury action within the statute of limitations, the wrongful death claim added after his death was viable. Id. at 196.

Finally, in Johnson v. Ottomeier, the court cited Grant in dicta as an example of a "rule of exclusion" which applied to the wrongful death statute. 275 P.2d 723, 725 (Wash. 1954).

In addition to this published precedent, Defendants supply as exhibits two trial court orders granting summary judgment on wrongful death claims based on the

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expiration of the personal injury statute of limitations. (See Paal Decl. (Dkt. # 43-1) Exs. A-D.)

D. Application to Plaintiff's claims

The parties do not dispute that Mr. Barabin knew or should have known that he possessed a personal injury claim against Defendants at least as of December 18, 2006, when he filed his first action regarding his workplace exposure to asbestos. (See generally 1st Compl.); Janis, 472 F. App'x at 534 (court may consider evidence outside the pleadings when...