In re Bridgestone/Firestone, Inc

• Decision Date: 21 April 2003
• Docket Number: MDL No. 1373.,No. IP00-9373-CBS.,No. IP02-5624CBS.,No. IP01-5488CBS.,No. IP01-5524CBS.,No. IP01-5487CBS.,IP00-9373-CBS.,IP01-5488CBS.,IP01-5524CBS.,IP01-5487CBS.,IP02-5624CBS.
• Citation: 260 F.Supp.2d 722
• Parties: In re BRIDGESTONE/FIRESTONE, INC., Tires Products Liability Litigation. TURNAGE, et al, v. FORD MOTOR COMPANY, et al. King, et al., v. Ford Motor Company, et al. Burley, et al., v. Ford Motor Company, et al. Pierce, et al., v. Ford Motor Company, et al.
• Court: U.S. District Court — Southern District of Indiana

Page 722

260 F.Supp.2d 722

In re BRIDGESTONE/FIRESTONE, INC., Tires Products Liability Litigation.

TURNAGE, et al, v. FORD MOTOR COMPANY, et al.

King, et al., v. Ford Motor Company, et al.

Burley, et al., v. Ford Motor Company, et al.

Pierce, et al., v. Ford Motor Company, et al.

MDL No. 1373.

No. IP00-9373-CBS.

No. IP01-5488CBS.

No. IP01-5524CBS.

No. IP01-5487CBS.

No. IP02-5624CBS.

United States District Court, S.D. Indiana, Indianapolis Division.

April 21, 2003.

Don Barrett, Barrett Law Office, Pa, Lexington, MS, Victor Manuel Diaz, Jr. Podhurst, Orseck, Josefsberg & Eaton, Miami, FL, Mike Eidson, Colson, Hicks, Eidson, Coral Gables, FL, Irwin B. Levin, Cohen & Malad, Indianapolis, IN, William E. Winingham, Wilson, Kehoe & Winingham, Indianapolis, IN, for Plaintiffs.

John H. Beisner, O'Melveny & Myers, LLP, Washington, DC, Daniel P. Byron, Bingham McHale, LLP, Indianapolis, IN, Mark Herrmann, Jones, Day, Reavis & Pogue, Cleveland, OH, Thomas S. Kilbane, Squire, Sanders, & Dempsey, LLP, Cleveland, OH, Mark Merkle, Krieg Devault, LLP, Indianapolis, IN, Randall Riggs, Locke Reynolds, LLP, Indianapolis, IN, Colin P. Smith, Holland & Knight, LLC, Chicago, IL, Thomas G. Stayton, Baker & Daniels, Indianapolis, IN, for Defendants.

ORDER ON MOTIONS TO REMAND

BARKER, District Judge.

Each of these cases was filed in Mississippi state court and removed by defendant Ford Motor Company ("Ford") to federal district court in Mississippi.¹ In each case, defendant Bridgestone/Firestone, Inc., ("Firestone") joined in Ford's Notice of Removal; some of the other defendants in each case also joined in the removal. The plaintiffs in each case filed a Motion to Remand while the case was pending in federal court in Mississippi, and the motions were fully briefed. The cases later were transferred to this court for consolidated and coordinated proceedings pursuant to 28 U.S.C. § 1407 by order of the Judicial Panel on Multidistrict Litigation. Following that transfer, the parties filed supplemental briefs regarding the remand motions. For the reasons set forth below, the plaintiffs' motions are GRANED, and each of these cases is REMANED to the Mississippi state court from which it was removed.

FACTUAL AND PROCEDURAL BACKGROUND

Each of these cases was filed by a group of plaintiffs: by the Court's count, there were three original plaintiffs in Burley; over twenty original plaintiffs in Pierce; over forty original plaintiffs in King; and over thirty original plaintiffs in Turnage.² Most of the plaintiffs are residents of Mississippi, although a few reside in Alabama, Texas, Louisiana, Kentucky, Oklahoma and Tennessee. Most, but not all, of the plaintiffs were injured in accidents involving Ford Explorers and/or the Firestone tires that are the subject of this MDL.³ The accidents at issue are unrelated to one another and happened at various times in various locations under various circumstances. Each of the Complaints⁴ alleges that the Firestone tires and Ford Explorers owned by the plaintiffs were defective and assert state law claims for strict liability, negligence, and breach of warranty against Ford, Firestone, and certain automobile and tire dealers who allegedly sold Explorers and/or tires to some of the plaintiffs. There are eleven such "dealerdefendants" named in Pierce, three in Burley, sixteen in King, and fifteen in Turnage.⁵

DISCUSSION

The defendants⁶ assert that both federal question jurisdiction pursuant to 28 U.S.C. § 1331 and diversity jurisdiction pursuant to 28 U.S.C. § 1332 exist in these cases. Specifically, the defendants assert that diversity jurisdiction exists because the dealer defendants were fraudulently joined in this action in order to defeat diversity of citizenship. The defendants further allege that federal question jurisdiction exists because the plaintiffs' negligence claim is based, in part, on the failure of Ford and Firestone to recall the allegedly defective tires at issue and, the defendants argue, any duty to recall would have arisen not under state law, but under the federal National Traffic and Motor Vehicle Safety Act ("Safety Act"). Thus, defendants argue, "in order to prevail on their negligence claim, plaintiffs would have to demonstrate that Ford and Firestone violated the Safety Act. As a matter of law, because such an inquiry would involve a very substantial federal question, plaintiffs' claim necessarily arises under federal law." Turnage Notice of Removal at ¶ 13; King Notice of Removal at ¶ 9; Burley Notice of Removal at ¶ 13; Pierce Notice of Removal at ¶ 9 (emphasis in original).

No Removal on Basis of Federal Question Jurisdiction

The defendants' assertion that federal question jurisdiction is present in these cases is easily disposed of, as the Court already has addressed, and rejected, the same arguments in a very similar context. See Nisbett v. Bridgestone Corp., 203 F.Supp.2d 1032, 1036-37 (S.D.Ind. 2002).⁷ As in Nisbett, the plaintiffs in these cases do not assert any claim under federal law; indeed, the Complaints affirmatively disavow any federal claim and expressly state the plaintiffs' intent to raise and pursue only claims arising under state law. As noted above, the plaintiffs, like the plaintiffs in Nisbett, do assert—as a factual basis for their state law claims— that the defendants failed to recall the allegedly defective tires, an assertion that implicates the Safety Act because it is the Safety Act that creates a statutory duty to recall defective tires under certain circumstances.

For the reasons discussed at length in Nisbett, the fact that the plaintiffs' state law claims may implicate certain provisions of the Safety Act is not sufficient to create federal question jurisdiction, especially in light of the fact that the Safety Act does not create a private right of action. See id. (citing Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)). Indeed, the facts of this case fit squarely with those in Thompson, in which the Court held that "a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined there should be no private, federal cause of action for the violation, does not state a claim `arising under the Constitution, laws, or treaties of the United States.' " Thompson, 478 U.S. at 817, 106 S.Ct. 3229. Accordingly, there is no federal question jurisdiction in these cases.

No Removal on Basis of Diversity Jurisdiction

The defendants' argument that these cases were properly removed because diversity jurisdiction is present in each of them is two-fold. First, the defendants argue that the dealer-defendants were fraudulently joined because the plaintiffs have no realistic chance of recovering against them on any theory. Second, they argue that the plaintiffs in each of these cases were fraudulently misjoined and that the Court should sever each plaintiffs⁸ claim into its own action. That way, even if the dealer-defendants were not fraudulently joined, only those plaintiffs who have named their non-diverse dealer as a defendant would be entitled to remand; the remaining cases would be subject to diversity jurisdiction and remain in federal court.

The Dealer-Defendants Were Not Fraudulently Joined

The complete diversity of citizenship necessary to confer federal jurisdiction under 28 U.S.C. § 1332 clearly is lacking on the face of the complaints in these cases, inasmuch as each case includes some plaintiffs and some defendants who are citizens of Mississippi. However, the defendants argue that the dealer-defendants were fraudulently joined in these cases in order to defeat diversity jurisdiction.

[Plaintiffs] may not join an in-state defendant solely for the purpose of defeating federal diversity jurisdiction. Such joinder is considered fraudulent, and is therefore disregarded, if the out-of-state defendant can show there exists no "reasonable possibility that a state court would rule against the in-state defendant."

Schwartz v. State Farm Mutual Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999) (citations omitted).⁹ Thus, if under the law of Mississippi there is "no reasonable possibility" that the plaintiffs will recover against the dealer-defendants, diversity jurisdiction exists and removal was proper. The removing defendants bear the burden of establishing fraudulent joinder, and in determining whether the plaintiffs' claims against the dealer-defendants have any possibility of success, we look beyond the pleadings at the facts on record. See Hutchins v. Ford Motor Co., 204 F.Supp.2d 1149,1153 (S.D.Ind.2002).

The defendants argue that the plaintiffs have failed to assert any claims against the dealer-defendants because the Complaints do not allege which dealer-defendant sold what product to which plaintiff. It is true that the Complaints are not model pleadings; however, they certainly satisfy the minimal requirements of notice pleading under Federal Rule of Civil Procedure 8(a).

The defendants also point to the fact that the plaintiffs' allegations in the Complaints focus on various acts of Ford and Firestone, not the dealer-defendants. This, the defendants argue, makes it clear that the dealer-defendants were named by the plaintiffs "for one purpose and one purpose only—to keep the case in Mississippi State Court, which plaintiffs consider a more favorable forum." Turnage Notice of Removal at ¶ 6; King Notice of Removal at ¶ 6; Burley Notice of Removal at ¶ 6; Pierce Notice of Removal at ¶ 6. It may be that the plaintiffs' motivation for suing the dealer-defendants was to defeat diversity jurisdiction. This is not the test for fraudulent joinder, however. "[Pjlaintiffs as masters of the complaint may include (or omit) claims or parties in order to determine the forum." Garbie v. Daimler-Chrysler Corp., 211 F.3d 407, 410 (7th Cir.2000). The relevant question is not why the plaintiffs chose to sue the non-diverse defendants, but...