Bourke v. Exxon Mobil Corp.
| Decision Date | 04 March 2016 |
| Docket Number | CIVIL ACTION NO. 15-5347 SECTION: "E" |
| Parties | JULIUS DAVID BOURKE, Plaintiff v. EXXON MOBIL CORPORATION, ET AL., Defendants |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Plaintiff Julius David Bourke's motion to remand this matter to state court.1 Defendants Exxon Mobil Corporation ("Exxon") and Georgia-Pacific, LLC ("Georgia-Pacific"), oppose the motion. The Court has considered the briefs, the record, and the applicable law and now issues its ruling. For the reasons that follow, the motion to remand is GRANTED.
On August 25, 2015, Plaintiff Julius David Bourke ("Plaintiff") filed a Petition for Damages against a handful of Defendants in the Civil District Court for the Parish of Orleans, State of Louisiana.2 Plaintiff's claims arise out of his allegedly "substantial exposure to asbestos and asbestos-containing products" which were either "sold, distributed, applied, removed, used, manipulated, and/or maintained" in various locations by the Defendants.3 According to the Plaintiff, he was exposed to asbestos from around 1953 through the 1970s.4 More specifically, Plaintiff contends that, from his birth in 1953 through 1960, he was "repeatedly exposed to asbestos" as a child from his "father's person and work clothes," when his father worked "with and around asbestos-containingproducts at the Exxon Baton Rouge facilities."5 Then, as an adult, Plaintiff contends he was repeatedly exposed to asbestos from approximately 1965 through 1978 while working as a carpenter at "various residential construction sites" and as a contractor "at the Exxon Baton Rouge Refinery."6
Named as Defendants in Plaintiff's state-court petition were: (1) Eagle, Inc.; (2) Georgia-Pacific, LLC; (3) Exxon Mobil Corporation; (4) Taylor-Seidenbach, Inc.; and (5) Union Carbide Corporation.7 According to the Plaintiff, Defendants Eagle, Inc.; Georgia-Pacific, LLC; Taylor-Seidenbach, Inc.; and Union Carbide Corporation each "designed, tested, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, supplied and/or sold [the] asbestos-containing products" to which the Plaintiff was exposed.8 Plaintiff alleges Defendant Exxon Mobil Corporation used asbestos-containing products at its Baton Rouge facility, where both the Plaintiff and the Plaintiff's father worked, resulting in Plaintiff's exposure to asbestos during certain periods over the course of his lifetime.9
Exxon, with the consent of Defendants Georgia-Pacific and Union Carbide, removed Plaintiff's suit to federal court on October 21, 2015.10 The basis of this Court's jurisdiction is alleged to be diversity of citizenship.11 According to the Notice of Removal, Plaintiff is a natural person and a citizen of the State of Louisiana.12 Defendants ExxonMobil and Union Carbide are corporations. To properly allege the citizenship of a corporation, the Notice of Removal must allege both the corporation's state of incorporation and its principal place of business.13 The Notice of Removal states that Exxon is a "Delaware corporation with its principal place of business in Texas," and Defendant Union Carbide Corporation is a "New York corporation having its principal place of business in Texas."14 As such, Exxon is a citizen of Delaware and Texas, while Union Carbide is a citizen of New York and Texas.
Defendant Georgia-Pacific, on the other hand, is a limited liability company. The citizenship of a limited liability company is determined by the citizenships of all of its members.15 If one of its members is an LLC or a partnership, the citizenships of that entity's members or partners must continue to be traced until an individual and/or a corporation is reached.16 Georgia-Pacific, LLC, is wholly owned by Georgia-Pacific Holdings, LLC, which is in turn wholly owned by Georgia-Pacific Entity Holdings, LLC.17 Georgia-Pacific Entity Holdings, LLC, is wholly owned by Koch Renewable Natural Resources, Inc., a "Delaware corporation with its principal place of business in Kansas."18 Georgia-Pacific is, as a result, a citizen of Delaware and Kansas.
It is undisputed that the Plaintiff, a citizen of Louisiana, is completely diverse from each of the aforementioned Defendants. It is also undisputed, however, that the Plaintiff is not diverse from the two remaining Defendants: Taylor-Seidenbach, Inc., and Eagle, Inc. Both Taylor-Seidenbach and Eagle are, as alleged in the Plaintiff's state-court petition, domestic corporations with their registered offices located in Orleans Parish,Louisiana.19 Thus, Taylor Seidenbach and Eagle are citizens of the State of Louisiana.20 Because Plaintiff is also a citizen of Louisiana, complete diversity does not exist between the Plaintiff and Defendants Taylor-Seidenbach, Inc., and Eagle, Inc.
In removing this matter to federal court, Exxon argued that Taylor-Seidenbach and Eagle were improperly joined as Defendants to defeat federal diversity jurisdiction.21 Exxon, in the Notice of Removal, contended "Taylor Seidenbach, Inc. and Eagle, Inc. are improperly joined defendants because there exists 'no reasonable basis for predicting' that plaintiff will recover against th[ese] purported defendants in state court."22 Exxon further argued in support of removal that the Plaintiff has "no intent" to prosecute his action against Taylor-Seidenbach, Inc., and Eagle, Inc., at trial.23 For those reasons, Exxon maintains Taylor-Seidenbach and Eagle are improperly joined defendants and, as a result, that federal diversity jurisdiction is proper before this Court.
Plaintiff filed the instant motion to remand on November 20, 2015. Plaintiff argues he properly pleaded causes of action against Taylor-Seidenbach, a non-diverse defendant, under Louisiana law, such that complete diversity of citizenship does not exist between the Plaintiff and all of the Defendants.24 The Plaintiff does not, however, address his claims against Eagle, Inc., or whether Eagle is a properly joined defendant to this action. It is of particular note that, on September 22, 2015, after suit was filed but prior to the removal of this matter to federal court, Eagle filed a Chapter 11 petition for bankruptcy protection in the United States Bankruptcy Court for the Eastern District of Louisiana.25As such, all claims asserted against Eagle became subject to an automatic stay on September 22, 2015.26 The Defendants contend Eagle is, as a result, a non-party for purposes of determining whether federal diversity jurisdiction is present, due to the automatic stay to which Eagle is subject.27
Federal courts are courts of limited jurisdiction and possess only the authority conferred upon them by the United States Constitution or by Congress.28 Federal law allows for state civil suits to be removed to federal courts in certain instances.29 Generally, removal jurisdiction is governed by 28 U.S.C. § 1441(a), which provides:
Except as otherwise expressly provided by Act of Congress, 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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.30
"The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper."31 When removal is based on federal diversity jurisdiction, the removing party must show that (1) complete diversity of citizenship exists between the parties, and (2) the amount in controversy exceeds $75,000.32 "The jurisdictional facts supporting removal are examined as of the time of removal."33 "Ambiguities are construed against removal and in favor of remand because removal statutes are to be strictly construed."34
Whether the parties are completely diverse is the only jurisdictional issue before the Court at the present time.35 Complete diversity of citizenship requires each plaintiff to be a citizen of a different state from each defendant.36 "[I]n diversity cases, a single non-diverse party destroys original jurisdiction with respect to all claims in the action."37 "An exception to the rule of complete diversity applies when a non-diverse defendant is improperly joined in order to defeat the court's diversity jurisdiction."38 The Fifth Circuit has recognized two ways for the removing party to establish improper, or fraudulent, joinder: (1) "actual fraud in the pleading of jurisdictional facts;" or (2) an "inability of the plaintiff to establish a cause of action against the non-diverse party in state court."39 There is no allegation of actual fraud in this case. "The test for improper joinder where there is no allegation of actual fraud is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant."40
The removing party's burden of proving improper joinder is "heavy."41 "In determining the validity of an allegation of improper joinder, the district court must construe factual allegations, resolve contested factual issues, and resolve ambiguities in the controlling state law in the plaintiff's favor."42 In Smallwood v. Illinois CentralRailroad Co., the Fifth Circuit articulated two avenues for determining whether a plaintiff has a reasonable basis for recovery under state law.43 First, "[t]he court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant."44 "Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder."45 Second, if the plaintiff has stated a claim and, as a result, survives a Rule 12(b)(6) challenge, but "misstated or omitted discrete facts that would determine the propriety of joinder," the court may "pierce the pleadings and conduct a...
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