Knutson v. Allis-Chalmers Corp.

• Decision Date: 23 February 2005
• Docket Number: No. CV-N-04-0625-LRHRJJ.,CV-N-04-0625-LRHRJJ.
• Citation: 358 F.Supp.2d 983
• Parties: Sandie KNUTSON and Dennis Knutson, Plaintiffs, v. ALLIS-CHALMERS CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Nevada

358 F.Supp.2d 983

Sandie KNUTSON and Dennis Knutson, Plaintiffs, v.ALLIS-CHALMERS CORPORATION, et al., Defendants.

No. CV-N-04-0625-LRHRJJ.

United States District Court, D. Nevada.

February 23, 2005.

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Kurt Franke, Law Offices of Kurt A. Franke, Reno, NV, Charles Siegel, Pro Hac Vice Firm, Waters & Kraus, Dallas, TX, Michael Armitage, Pro Hac Vice Firm, Waters & Kraus, LLP, Long Beach, CA, for Plaintiffs.

Angela Bader, Steven Guinn, Laxalt & Nomura, Ltd., Charles Spann, Perry & Spann, Clark Vellis, Jones Vargas, Jack Angaran, Ryan Mandell, Georgeson, Thompson & Angaran, Chtd., Eric Leitner, Eugene Wait, Wait Law Firm, Reno, NV, Troy Peyton, Rumph & Peyton, William Cooper, Cooper Law Offices, Gavin Jangard, Thomas Kummer, Kummer Kaempfer Bonner & Renshaw, Anne Wellborn, Bullivant Houser Bailey, PC, Von Heinz, Lewis & Roca, LLP, James Christensen, Gordon & Rees, Albert Thuessen, Jackson & Wallace, LLP, Michael Edwards, Sheri Schwartz, Lewis Brisbois Bisgaard & Smith, LLP, James Barker, Gifford, Vernon, Barker & Glade, Michael Hagemeyer, Michael A. Hagemeyer, Janice Brown, Barker Brown Busby Chrisman, Et Al, Marsha Tarte, Pico Escobar Rosenberger, Kelly Evans, Snell & Wilmer, David Barron, Nadia Von Magdenko, William Pruitt, Barron Vivone Holland Pruitt, Chtd., Davis Vandervelde, Jack Cherry, Alverson Taylor Mortensen, Et Al, Scott Stonehocker, Tomas Mazeika, Fredrickson Mazeika & Grant, LLP, Las Vegas, NV, David Brown, Woodbury Morris & Brown, Henderson, NV, Brinton Burbidge, Paul Van Komen, Thomas Anderson, Pro Hac Vice Firm, Burbidge & White, L.L.C., Salt Lake City, UT, Julie Torres, Pro Hac Vice Firm, Jackson & Wallace, San Francisco, CA, Andy Goetz, Pro Hac Vice Firm, Prindle, Decker & Amaro, LLP, Long Beach, CA, Mary Birk, Baker & Hostetler, Denver, CO, for Defendants.

ORDER

HICKS, District Judge.

Presently before the Court is PlaintiffDennis Knutson's Motion for Remand and Request for Judicial Notice(DocketNo. 97), Numerous opposition pleadings have been filed with the Court in regard to both the remand motion and the request for judicial notice.¹Plaintiff has filed a reply (DocketNo. 155).Upon review of the record and relevant law, the Court grants Plaintiff's motion.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises from the injuries sustained by PlaintiffSandie Knutson("Mrs.Knutson") due to her exposure to asbestos and asbestos-containing equipment.Mrs. Knutson suffered and, on October 26, 2004, was ultimately killed by mesothelioma, an "invariably fatal cancer, ... for which asbestos exposure is the only known cause...."In re Patenaude,210 F.3d 135, 138(3d Cir.2000), cert. denied,531 U.S. 1011, 121 S.Ct. 565, 148 L.Ed.2d 484(2000).On November 24, 2003, Mr. and Mrs. Knutson ("Plaintiffs") filed suit in state court against numerous Defendants alleged to be responsible, in some way, for Mrs. Knutson's exposure to asbestos.Plaintiffs' complaint alleges that Mrs. Knutson was exposed to asbestos during the years 1958 to 1988.During these years, she was exposed as a result of her own work with and around asbestos-containing equipment; and through the asbestos fibers both her father and husband brought home from work on their persons and clothing.

Plaintiffs are both domiciliaries of Nevada.All named Defendants were entities residing outside of the District of Nevada, with the exception of three Defendants the Battle Mountain Gold Company, the Carlin Gold Company, and the Newmont Gold Company(collectively, the "Newmont Defendants").As diversity was presumed destroyed by the inclusion of the Newmont Defendants, no Defendant attempted to remove the case at the time of the service of the complaint.

On September 9, 2004, the Newmont Defendants filed a motion for summary judgment.Plaintiffs' Opposition brief was filed on October 1, 2004.On October 15, 2004, the Seventh Judicial District Court of the State of Nevada, in and for the County of Eureka, granted the motion for summary judgment in favor of the Newmont Defendants.Subsequently, on November 1, 2004, DefendantHoneywell International, Inc.(hereinafter, "Honeywell") filed a Notice of Removal of the action to the U.S. District Court for the District of Nevada.Honeywell's Notice of Removal contends that removal became appropriate on October 4, 2004, when Plaintiffs served their Opposition to the Newmont Defendants' motion for summary judgment(hereinafter, "Opposition") on Defendant Honeywell.According to Honeywell, Plaintiffs' Opposition put Defendants on notice, for the first time, that removal was possible because the brief showed "that Newmont was `fraudulently joined' in that there was no basis in fact or colorable ground supporting the claim against Newmont, and that there was no real intention in good faith to prosecute the action against Newmont or seek a joint judgment."(Def. Honeywell's Notice of Removalat 5:1-5.)With the possible exception of Defendant Page-Brake, all other Defendants still a party to the action (hereinafter, the "Removing Defendants") joined in the removal on or before October 4, 2004.On December 1, 2004, Mr. Knutson (hereinafter, "Plaintiff") filed the instant motion to remand the case to state court for lack of jurisdiction.

Additionally, this case has been identified as a tag along action in an asbestos case which the Judicial Panel on Multidistrict Litigation(the "Panel") has been authorized to coordinate pursuant to 28 U.S.C. § 1407.The Panel is responsible for conditionally transferring all tag along cases in which there is or may be federal jurisdiction to the Multidistrict Litigation court, seeid., which is in the United States District Court for the Eastern District of Pennsylvania(the "MDL court").A conditional transfer order to the MDL court was issued in this case by the Panel on December 21, 2004.²(Def. Honeywell's Notice of Conditional Transfer Order, DocketNo. 154.)As specified in the conditional transfer order, if any party files a notice of opposition to the order, the order does not become effective and is stayed until the Panel makes a final decision in the matter.Id.As Plaintiff has opposed the transfer, and the conditional transfer order is accordingly stayed, this Court continues to have jurisdiction to determine Plaintiff's motion for remand.SeeGreene v. Wyeth,344 F.Supp.2d 674, 677-78(D.Nev.2004);Rivers v. Walt Disney Co.,980 F.Supp. 1358, 1360(C.D.Cal.1997)(citing the Multidistrict Litigation Panel's holding that "the pendency of a motion or conditional transfer order [does] not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court").

LEGAL STANDARD

Under 28 U.S.C. § 1441, the removal statute, "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 defendants, to the district court of the United States for any district ... where such action is pending."28 U.S.C. § 1441(a).One instance in which the district courts of the United States have "original jurisdiction" is where there is complete diversity between the parties and the amount in controversy exceeds $75,000.28 U.S.C. § 1332(a)(1).

The proper procedure for challenging removal to federal court is a motion to remand.A federal court must order remand if there is any defect which causes federal jurisdiction to fail, or if there is any defect in the removal procedure.28 U.S.C. § 1447(c).The removal statutes are construed restrictively, and any doubts about removability are resolved in favor of remanding the case to state court.Shamrock Oil & Gas Corp. v. Sheets,313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214(1941);Gaus v. Miles, Inc.,980 F.2d 564, 566(9th Cir.1992).On a motion to remand, the removing defendant faces a strong presumption against removal, and bears the burden of establishing that removal was proper by a preponderance of evidence.Id. at 567;Sanchez v. Monumental Life Ins. Co.,102 F.3d 398, 403-04(9th Cir.1996).

DISCUSSION

Although 28 U.S.C. 1441(a) permits defendants to remove a case in which there is diversity jurisdiction to federal court, section 1441(b) states that diversity jurisdiction cases are "removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought."As mentioned previously, three non-diverse Defendants — collectively called the "Newmont Defendants" — were joined and served in this case.Nonetheless, the Removing Defendants sought removal, and now oppose remand, based upon the "fraudulent joinder" exception to the complete diversity requirement.This exception requires Defendants to show that the Plaintiff has failed, under well-settled state law, to state a claim against a resident defendant.Ritchey v. Upjohn Drug Company,139 F.3d 1313, 1318(9th Cir.1998).In the motion for remand, Plaintiff asserts that removal was improper both due to procedural defects in the removal, and because there was no fraudulent joinder.If Plaintiff prevails in either argument, then the case must be remanded.Initially, however, the court must consider Plaintiff's motion for judicial notice, and the Defendants' objections to the motion.

A.Availability of Judicial Notice

In conjunction with — and in support of — Plaintiff's motion for remand, Plaintiffrequests this Court take judicial notice of several court documents and the facts they support.Defendant Honeywell has filed an objection to Plaintiff's requests numbered 24 through 27, arguing that judicial notice is not appropriate with regard to those requests.The requests ask this Court to take judicial notice that:

24.Not all Defendants have executed Honeywell's "Consent to Removal."[See, Honeywell's "Supplement to Notice of Removal of Action,"...