The opinion of the court was delivered by: Honorable George H. King, U. S. District Judge
Presiding: The Honorable GEORGE H. KING, U. S. DISTRICT JUDGE
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendant: None None
Proceedings: (In Chambers) Order re: Motion for Remand and for Award of Costs Incurred
This matter is before us on Plaintiffs Dimitris O. Couscouris ("Mr. Couscouris") and Magdalena Couscouris's (collectively, "Plaintiffs") Motion for Remand and for Award of Costs Incurred ("Motion"). We have considered the arguments in support of and in opposition to the Motion and deem this matter appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts, we will repeat them only as necessary. Accordingly, we rule as follows.
On December 22, 2011, Plaintiffs filed this action in state court against nine defendants seeking damages resulting from Mr. Couscouris's mesothelioma, which they allege was caused by his exposure to asbestos. The Complaint asserts three claims under state law: (1) negligence, (2) strict liability, and (3) loss of consortium.
On May 22, 2012, Defendant Lorillard Tobacco Company ("Lorillard") removed this action asserting that we have jurisdiction based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. Lorillard's Notice of Removal ("NOR") contends that we have diversity jurisdiction despite the fact that the Complaint names two California citizens -- Defendants Yeager Enterprises Corporation doing business as Pacific Abrasive Supply Company ("Yeager") and Metalclad Insulation Corporation ("Metalclad" and, collectively with Yeager, "California Defendants") -- because the California Defendants were fraudulently joined and thus their citizenship should be disregarded for purposes of assessing diversity jurisdiction.*fn1 See Morris v. Princess Cruises, Inc., 236 F.3d 1061 (9th Cir. 2001).
Additionally, Lorillard asserts that § 1332's $75,000 amount-in-controversy requirement is satisfied because Plaintiffs stated in their interrogatory responses, "It is believed that the evidence will support a verdict for damages in the amount of $6,000,000 to $12,000,000." (NOR ¶ 30).
Lorillard contends that the California Defendants were fraudulently joined because during Mr. Couscouris's deposition on April 3, 2012, he could not identify any Yeager or Metalclad products to which he had ever been exposed. (NOR ¶¶ 5, 12). Additionally, Lorillard states that Yeager and Metalclad filed motions for summary judgment in state court, on May 10, 2012, and May 21, 2012, respectively, contending that Plaintiffs have no evidence to support their claims that the California Defendants were responsible for Mr. Couscouris's exposure to asbestos. See McGonnell v. Kaiser Gypsum Co., Inc., 98 Cal. App. 4th 1098, 1105 (2002) (holding that evidence that merely establishes that it is "within the realm of possibility" that plaintiff was exposed to defendants' asbestos-containing product was insufficient to avoid dismissal on summary judgment). Further, Lorillard has provided the declaration of Yeager's counsel, Mr. Vernon Phillip Hill IV, who states that Plaintiffs' counsel, Mr. Mark D. Bratt, told him that (1) the only reason Yeager was named in this case was for jurisdictional purposes, (2) Plaintiffs would withdraw all offensive discovery aimed at Yeager, and (3) Plaintiffs planned to file only a "light opposition" to any summary judgment motion that Yeager filed.*fn2 (Hill Decl. ¶ 6, Dkt. No. 1-5). Lorillard argues that "[t]aking the two sets of summary judgment papers together, along with Couscouris's counsel's admission to Yeager's counsel, it is obvious that they were named only as a means of denying the diverse defendants, including Lorillard, their right to have the case heard in federal court." (NOR ¶ 16).
Lorillard contends that its removal of this action was timely because it was not provided with the signature page certifying to the truth of Mr. Couscouris's deposition testimony until May 3, 2012, and it removed the action nineteen days later, on May 22, 2012. (Opp'n 5); see also 28 U.S.C. § 1446(b)(3) ("[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become ...