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In Re: Asbestos Products Liability Litigation (No. Vi v. Various Defendants

May 16, 2011

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)
DAVID AND FRANCES GRAVER
v.
VARIOUS DEFENDANTS



The opinion of the court was delivered by: Eduardo C. Robreno, J.

Consolidated Under

MEMORANDUM

Before the Court is Plaintiff's Motion to Remand (doc. no. 3) and removing Defendant, Allentown Cement Company's, Response (doc. no. 11.)

I. BACKGROUND

Plaintiff David B. Graver was diagnosed with mesothelioma on May 24, 2010. (Pl.'s Reply, doc. no. 17, at 1.) Plaintiffs, David B. Graver and his wife, Frances Graver, filed a complaint against various Defendants alleging injury due to asbestos exposure in the Philadelphia Court of Common Pleas on June 25, 2010. (Id. at 1.) Plaintiffs were scheduled to commence trial in the Court of Common Pleas of Philadelphia County on April 18, 2011, as part of a trial group with other similarly-situated plaintiffs. However, Defendant Allentown Cement Company ("Defendant") filed a Notice of Removal in the instant case on the same day. (See doc. no. 1.)

Defendant's Notice of Removal avers that there is complete diversity between the parties; Plaintiffs are citizens of Pennsylvania and no remaining Defendant is subject to personal jurisdiction in Pennsylvania. (Def.'s Removal, doc. no. 1, at 3.) Defendant argues that the case became diverse, and therefore removable, on April 11, 2011,*fn1 when Philadelphia Court of Common Pleas Judge Sandra Mazer Moss granted summary judgment in favor of Crown Cork & Seal, the last remaining Pennsylvania Defendant in the case. (Pl.'s Mot. to Remand, doc. no. 3, at 3.).*fn2

Alternatively, Defendant argues that the Pennsylvania Defendants were fraudulently joined. Defendant avers that it filed a timely notice of removal pursuant to 28 U.S.C. § 1446(b), as it was filed within thirty days "from which it may first be ascertained that the case is one which is or has become removable" and was filed within a year of the commencement of the action.*fn3

Plaintiffs respond that the case did not become removable on April 11, 2011, because only a voluntary dismissal of a non-diverse defendant causes a case to become removable. Plaintiffs note that they opposed Defendant Crown Cork & Seal's motion for summary judgment and "resisted any attempt" to dismiss it from the case. (Id.) Plaintiffs request immediate remand,*fn4 costs and fees in the amount of $100,000 and sanctions, as Plaintiffs allege that there was no legitimate basis for Defendant Allentown Cement Company's removal. (Id. at 2.) Plaintiffs deny that Defendant Crown Cork & Seal was fraudulently joined.

II. ANALYSIS

A. The Voluntary Rule

1. A Majority of Courts Apply the Voluntary/Involuntary Distinction

Plaintiff's Motion to Remand avers that the instant case is not removable pursuant to the "voluntary/involuntary" rule (hereinafter the "voluntary rule"), which holds that an action which is nonremovable when commenced can become removable only by voluntary act of plaintiff.

Indeed, "the great weight of authority holds that [a case only becomes removable] where the non-diverse defendant is dropped as the result of some voluntary action by plaintiff." American Dredging Co. v. Atlantic Sea Con. Ltd., 637 F.Supp. 179, 181 (D.N.J. 1986) (emphasis added). The purpose of the voluntary rule is two-fold:

First, it contribute[s] to judicial economy, because after an involuntary removal, the plaintiff may appeal the dismissal in state court, and success on appeal would lead to the reinstatement of the non-diverse party, destroying federal jurisdiction and compelling remand to the state court. Second, it recognizes the general principle of deference to the plaintiff's choice of forum. Allowing removal only when the plaintiff voluntarily dismisses ...


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