United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Plaintiff Henry Booth's Motion to Remand . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the motion is well taken and this action should be remanded to the Circuit Court of Forrest County, Mississippi.
On May 7, 2013, Booth filed suit against twenty-three (23) Defendants in the Circuit Court of Forrest County, Mississippi, alleging injury as a result of being exposed to crystalline silica while working as a sandblaster and painter from approximately 1972 to 1985. ( See Compl. [1-2].) The Complaint asserts that each Defendant either manufactured, marketed, distributed, and sold defective personal respiratory equipment; defective sandblasting equipment; or silica sand. Further, the Complaint sets forth the following causes of action in support of recovery against all of the Defendants: strict liability and product defects; negligence; breach of warranties (express and implied); civil conspiracy; acting in concert; and gross negligence.
On November 12, 2013, Booth served discovery responses containing employment information conflicting with the information asserted in the Complaint. Booth's discovery responses indicate that he last worked as a sandblaster and painter in 1983, as opposed to 1985. Therefore, the last year of Booth's "exposure to respirable silica would have been 1983." (Pl.'s Mem. of Law in Supp. of Mot. to Remand  at p. 2.) On or about January 23, 2014, Defendant American Optical Corporation received an affidavit executed by James N. Dickerson, the former president of Defendant Dependable Abrasives, Inc. (dissolved), pertaining to a separate lawsuit brought by Arthur Ray Bourne in the Circuit Court of Claiborne County, Mississippi. Dickerson's affidavit states in pertinent part that Dependable Abrasives came into existence in 1985, and that the company did not sell sand from 1957 to 1982. (Dickerson Aff. [1-4] at ¶¶ 3, 5.)
On February 20, 2014, American Optical removed the proceeding to this Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. ( See Notice of Removal .) The Notice of Removal asserts that complete diversity of citizenship exists between Booth and all properly joined and served Defendants. The notice further provides that the Mississippi citizenship of Dependable Abrasives must be disregarded since it is improperly joined. American Optical argues there is no reasonable basis to predict that Booth can recover from Dependable Abrasives since Booth's last alleged exposure to respirable silica occurred in 1983 and Dependable Abrasives did not exist until 1985. American Optical also asserts that the Notice of Removal was timely filed within thirty (30) days of its receipt of the Dickerson Affidavit [1-4], which falls under the scope of 28 U.S.C. § 1446(b)(3)'s "other paper" provision. All Defendants joined and served in the state court action, except Dependable Abrasives, joined in and consented to the removal. (Doc. No. [1-5].)
On March 21, 2014, Booth filed his Motion to Remand . Booth argues that the removal was defective due to untimeliness. The Motion to Remand has been fully briefed and the Court is ready to rule.
A. Legal Standards
"In general, defendants may remove a civil action if a federal court would have had original jurisdiction." De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (citing 28 U.S.C. § 1441(a)). "The removing party bears the burden of establishing that federal jurisdiction exists." Id. (citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253-54 (5th Cir. 1961)). A motion to remand alleging a procedural defect in removal must be brought within thirty (30) days of the filing of the notice of removal, but "the case shall be remanded" at any time before final judgment if it appears that subject matter jurisdiction is lacking. 28 U.S.C. § 1447(c). Since federal courts are of limited jurisdiction and removal raises significant federalism concerns, the "removal statutes are to be construed strictly against removal and for remand." Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996) (citations omitted). Courts are to consider "jurisdictional facts as they existed at the time of removal" in ruling on a motion to remand. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995).
Title 28 U.S.C. § 1446 sets forth the procedures for removal of a civil action, including provisions concerning the timing of removal. Generally, the notice of removal must be filed within thirty (30) days of the defendant's receipt of the initial pleading. 28 U.S.C. § 1446(b)(1). A different rule applies when an action is not initially removable:
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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 removable.
28 U.S.C. § 1446(b)(3). Discovery responses, pleadings, deposition transcripts, and attorney communications may constitute "other paper" for purposes of the removal statute. See Still v. Georgia-Pacific Corp., 965 F.Supp. 878, 881 (S.D.Miss. 1997) (citations omitted). The information contained in the "other paper must be unequivocally clear and certain' to start the time limit running for a notice of removal...." Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002).
In Jernigan v. Ashland Oil Inc., 989 F.2d 812 (5th Cir. 1993), the United States Court of Appeals for the Fifth Circuit found the above-quoted "other paper" provision, then located at the second paragraph of § 1446(b), applicable to a removal based on improper joinder. Ashland Oil argued that the first time it could have discovered the nondiverse defendants were improperly joined was when it received one of the defendant's answers, which was filed on March 23, 1990. Jernigan, 989 F.2d at 814. The plaintiffs never contradicted this assertion. See id. at 814-15. The Fifth Circuit held that the time for removal ran from March 23 (the date Ashland Oil discovered the case was removable), as opposed to February 2 (the date Ashland Oil was served with process). See id. at 813, 815. In Badon v. R J R Nabisco Inc., 224 F.3d 382, 390 n.13 (5th Cir. 2000), the Fifth Circuit distinguished Jernigan and held "that fraudulent joinder removals are not per se within the second paragraph of § 1446(b)." Thus, the defendants could properly invoke the general timing rule for removal, thirty days from the date of service, even though the removal was based on fraudulent joinder. See id. at 390. A fairly recent decision from the United States District Court for the Southern District of Texas examined ...