Kelso v. 3M Co. ( In re Bair Hugger Forced Air Warming Devices Prods. Liab. Litig. )

Docket NumberMDL 15-2666 JNE/DTS,23-cv-03073-JNE-DTS
Decision Date12 January 2024
PartiesIn re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION v. 3M Company et al. This Document Relates to Kelso
CourtU.S. District Court — District of Minnesota

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In re BAIR HUGGER FORCED AIR WARMING DEVICES PRODUCTS LIABILITY LITIGATION This Document Relates to Kelso
v.

3M Company et al.

MDL No. 15-2666 JNE/DTS

No. 23-cv-03073-JNE-DTS

United States District Court, D. Minnesota

January 12, 2024


ORDER

JOAN N. ERICKSEN, UNITED STATES DISTRICT JUDGE

This case is before the Court on Larry Kelso's Motion for Remand. For the reasons set forth below, the Court grants the motion.

Kelso brought this action in the District Court of Harris County, Texas, against 3M Company and several others.[1] Asserting that the United States District Court for the Southern District of Texas “has original jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1),” 3M removed the action from state court. See 28 U.S.C. §§ 1441, 1446. Kelso moved to remand the action to state court. 3M moved “to stay all proceedings in this case, including responsive pleading deadlines and any ruling on a motion to remand, pending transfer of this case to the United States District Court for the District of Minnesota as part of In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, MDL No. 2666.” The Southern District of Texas granted 3M's motion to stay. The United States Judicial Panel on Multidistrict Litigation transferred the action to the District of Minnesota for inclusion in MDL No. 2666. See id. § 1407.

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Kelso moved to remand the action to the Harris County District Court. 3M opposed the motion.

“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.” Id. § 1441(a). A district court has original jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.” Id. § 1332(a)(1). “For a party to remove a case to federal court based on diversity jurisdiction, the parties must be diverse both when the plaintiff initiates the action in state court and when the defendant files the notice of removal in federal court.” Reece v. Bank of N.Y. Mellon, 760 F.3d 771, 777 (8th Cir. 2014) (quoting Chavez-Lavagnino v. Motivation Educ. Training, Inc., 714 F.3d 1055, 1056 (8th Cir. 2013)).[2] “[T]he party seeking removal has the burden to establish federal subject matter jurisdiction; all doubts about federal jurisdiction must be resolved in favor of remand.” Cent. Iowa Power Coop. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009) (citation omitted); see Hubbard v. Federated Mut. Ins. Co., 799 F.3d 1224, 1227 (8th Cir. 2015).

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In its Notice of Removal, 3M asserted that “[t]here is complete diversity of citizenship between properly joined parties” and that “the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 3M alleged that Kelso is a citizen of Texas and that 3M is a citizen of Delaware and Minnesota, see 28 U.S.C. § 1332(c)(1).[3] 3M maintained that “[t]he Court may disregard the Provider Defendants' citizenship because they have been improperly joined.”[4] According to 3M, “[i]mproper joinder exists because [Kelso] has no real intention in good faith to prosecute his claims against the Provider Defendants.” In the alternative, 3M maintained that the Southern District of Texas “may retain jurisdiction over this matter by severing the claims” against the Provider Defendants, remanding those claims to state court, and retaining jurisdiction over Kelso's claims against 3M.

Kelso moved to remand the action to the Harris County District Court. He asserted that “the Fifth Circuit does not recognize a separate ‘real intention' test in fraudulent joinder analysis,” that “the Fifth Circuit rejected Tapscott severances for

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‘fraudulent misjoinder,'”[5] and that “the Fifth Circuit does not permit a district court to create jurisdiction with a Rule 21 severance.”[6] Kelso asserted that an award of attorney's fees and costs is appropriate. See 28 U.S.C. § 1447(c).

3M opposed Kelso's motion. It argued that the law of the Eighth Circuit applies to Kelso's motion; that Kelso's claims against the Provider Defendants are distinct, should be severed from his claims against 3M, and should be remanded; and that the Court should deny Kelso's motion because he lacks a viable cause of action against the Provider Defendants. If the action is remanded, 3M asserted that no award of attorney's fees and costs should be made because it had an objectively reasonable basis for removal.

In a short reply, Kelso stated that “neither 3M[']s argument about supposed fraudulent joinder nor its argument in the alternative - that the claims against non-diverse defendants should be severed - are cognizable” under the law of the Fifth Circuit. Kelso asserted that “the law in the Eighth Circuit provides no refuge for 3M either.”

Sever Claims

3M asserted that “[t]he Court has broad discretion to sever claims against non-diverse defendants, regardless of whether those defendants are properly joined.” According to 3M, “Kelso is attempting to evade federal court by joining Provider Defendants who did not contribute to any infection Kelso claims is related to the Bair

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Hugger system, but whom Kelso alleges caused a separate injury related to a misplaced screw.” “Because the claims against Provider Defendants were misjoined,” 3M argued, “the Court should exercise its discretion under Rule 21 [of the Federal Rules of Civil Procedure] to sever the claims against the...

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