WRIGHT BY WRIGHT v. Lead Industries Ass'n, Inc., Civ. No. S 95-473
| Decision Date | 02 March 1995 |
| Docket Number | Civ. No. S 95-473,S 95-474. |
| Citation | 878 F. Supp. 47 |
| Parties | Allen WRIGHT, A Minor, by Tina WRIGHT and Alvin O. Wright, His Parents and Next Friends; Tina Wright, Mother of Allen Wright; and Alvin O. Wright, Father of Allen Wright v. LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.; Atlantic Richfield Company; The Sherwin-Williams Company; SCM Corporation; The Glidden Company; St. Joe Minerals Corporation; E.I. DuPont de Nemours & Company; Fuller & O'Brien; and A. Bauer & Company. Alvin WRIGHT, Deceased, a Minor, by His Personal Representative, Alvin O. WRIGHT; Tina Wright, Mother of Alvin Wright, Deceased and Alvin O. Wright, Father of Alvin Wright, Deceased, v. LEAD INDUSTRIES ASSOCIATION, INC.; NL Industries, Inc.; Atlantic Richfield Company; The Sherwin-Williams Company; SCM Corporation; The Glidden Company; St. Joe Minerals Corporation; E.I. DuPont de Nemours & Company; Fuller & O'Brien; and A. Bauer & Company. |
| Court | U.S. District Court — District of Maryland |
Peter G. Angelos, Thomas L. Samuel, Ronald E. Richardson, Law Offices of Peter G. Angelos, Baltimore, MD, for plaintiffs.
Dean M. Harris, Atlantic Richfield Co., Los Angeles, CA, Otis P. Pearsall, Philip H. Curtis, Deborah Goldberg, Arnold & Porter, New York City, Robert N. Weiner, Murray R. Garnick, Arnold & Porter, Washington, DC, for Atlantic Richfield Co.
Timothy S. Hardy, Kirkland & Ellis, Washington, DC, Jeffrey A. Hall, Bartlit, Beck, Herman, Palenchar & Scott, Chicago, IL, for NL Industries, Inc.
Edward F. Houff, Church & Houff, P.A., Baltimore, MD, Paul M. Pohl, Charles H. Moellenberg, Jr., John E. Iole, Jones, Day, Reavis & Pogue, Pittsburgh, PA, for Sherwin-Williams Co.
Charles S. Hirsch, Ballard, Spahr, Andrews & Ingersoll, Baltimore, MD, Earl W. MacFarlane, E.I. DuPont De Nemours & Co., Wilmington, DE, for E.I. DuPont De Nemours & Co.
Harold J. Engel, Popham, Haik, Schobrich & Kaufman, Ltd., Washington, DC, G. Marc Whitehead, Michael T. Nilan, Popham, Haik, Schobrich & Kaufman, Ltd., Minneapolis, MN, for SCM Corp. and The Glidden Co. Wade R. Joyner, Crowley, Barrett & Karaba, Ltd., Chicago, IL, for Fuller-O'Brien Corp., sued as Fuller & O'Brien.
Mark L. Sullivan, Sullivan, Sullivan & Pinta, Boston, MA, for Lead Industries Ass'n, Inc.
Walter W. Nowotny, The Doe Run Co., St. Louis, MO, for Doe Run Resources Corp., sued as St. Joe Minerals Corp.
Martin E. Marvel, A. Bauer & Co., Baltimore, MD, for A. Bauer & Co.
James P. Ulwick, Kramon & Graham, P.A., Baltimore, MD, for NL Industries, Inc.
These matters are before the Court on the plaintiffs' motion to remand each one to the Circuit Court for Baltimore City, from which they were removed by the defendants. The motions have been fully briefed. No oral hearing is necessary. Local Rule 105.6, D.Md.
These cases concern the alleged lead paint poisoning of one Allen Wright, born in 1979, and the alleged lead paint poisoning and death of one Alvin Wright, born in 1977, both of whom resided in a house built in the 1920's. The plaintiffs, all Maryland citizens, sued a host of non-Maryland defendants and a small, Baltimore hardware store, alleging causes of action for strict liability, breach of warranty, negligence, conspiracy, and fraud, all tied to the defendants' manufacture, distribution, and sale of lead-based house paint.
After removal of these cases, the Maryland-citizen plaintiffs moved to remand, noting that there was a plain absence of complete diversity of citizenship, due to the presence of the Maryland hardware store, A. Bauer & Company (Bauer) as a defendant. The defendants oppose remand, arguing that Bauer was fraudulently joined to prevent these cases from falling within the subject matter jurisdiction of this Court under 28 U.S.C. § 1332.
The two situations justifying refusal to recognize the presence of a non-diverse defendant were recently stated by the Fourth Circuit in Marshall v. Manville Sales Corp., 6 F.3d 229 (4th Cir.1993). There certainly has not been any outright fraud in the plaintiffs' pleading of jurisdictional facts, so, in order to justify retention of these cases in the federal court, the defendants must satisfy the heavy burden of showing that the plaintiffs cannot establish a claim against Bauer even after resolving all issues of fact and law in the plaintiffs' favor. 6 F.3d at 232-33. Stated another way, all that need be shown by the plaintiffs is that they have a possibility of a right to relief against the...
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