The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Residents of Alabama filed this class action complaint in the
Superior Court of New Jersey, Law Division, Atlantic County,
alleging that they were harmed when defendant companies
negligently manufactured, transported, and disposed solid and
liquid wastes near McIntosh, Alabama. The defendant companies are
Ciba Specialty Chemicals Corp. ("Ciba"), Ciba-Geigy Corp.
("Ciba-Geigy"), Novartis Corp.*fn1 ("Novartis"), Freehold
Cartage, Inc. ("Freehold"), Olin Corp. ("Olin"), and Arch
Chemicals, Inc. ("Arch").
Defendant Freehold is a New Jersey corporation. Defendants
removed the case to this Court citing diversity jurisdiction,
arguing that the New Jersey citizenship of Freehold should be
disregarded notwithstanding 28 U.S.C. § 1441(b)'s requirement
that, in a diversity case removed to federal court, no defendant
may be a citizen of the forum state. Defendants assert that even
though Defendant Freehold is a citizen of New Jersey, it is not a
"properly joined" defendant but is instead a defendant which was
improperly joined to defeat removal jurisdiction.
For the reasons set forth herein, this Court finds that
Freehold was properly included as a defendant. Therefore, this
Court does not have subject matter jurisdiction because a proper
defendant, Freehold, is a citizen of the forum state, and the
removal violates 28 U.S.C. § 1441(b). The Court will remand the
case to New Jersey Superior Court.
On January 20, 2004, Plaintiffs filed this class action in the
Superior Court of New Jersey, Atlantic County, alleging that
Defendants negligently and/or purposely manufactured harmful
liquid and solid wastes, transported hazardous wastes, and
created inadequate disposal areas for the waste at plants located
near McIntosh, Alabama (Compl., Count I, ¶ 3, Count III, ¶ 2),
which has placed Plaintiffs, who are all Alabama residents, in a
position of enhanced risk of injury. (Id. ¶ II.4.) The issue on
this motion is whether Freehold is a proper defendant in the
action, so the Court will limit its discussion to this issue.
Since 1952, Ciba,*fn2 Ciba-Geigy,*fn3 and
Novartis*fn4 have operated a chemical manufacturing plant on
property located two miles northeast of McIntosh, Alabama.
(Id., Count I, ¶ 1.) Ciba-Geigy also owns and operates a
chemical manufacturing plant in Toms River, New Jersey, from
which it allegedly transported its hazardous waste to the
McIntosh, Alabama, site for disposal at a rate of approximately
710,000 pounds per year. (Id. ¶ I.2.) For this transportation
from New Jersey to Alabama, Ciba-Geigy allegedly hired Freehold
Cartage, a New Jersey corporation. (Id. ¶ I.3.) Plaintiffs have
alleged that Freehold negligently transported the hazardous waste
from New Jersey to the Ciba plant in Alabama, where it was
negligently disposed of by the Ciba defendants. (Id., Count II,
Based in part on certain environmental tests at the Alabama
site, Plaintiffs filed the present action seeking medical
monitoring to ensure that any health issues from their exposure
to the hazardous chemicals would be immediately detected. In
addition to the present suit, there are two putative class action
lawsuits pending in the United States District Court for the
Southern District of Alabama, seeking relief for property damage
from the same exposure. Plaintiffs filed one suit against the
Ciba Defendants,*fn6 and one against the Olin
Defendants;*fn7 neither includes a claim against Defendant
Freehold. (Def. Ciba Br. at 2; Def. Olin Br. at 4.)
On April 8, 2004, the Ciba Defendants removed the case to this
court, asserting diversity jurisdiction. (Bennett Cert., Exs. F,
G, H.) Noting that Freehold is a New Jersey corporation, the
Court raised the question of removability sua sponte in a
letter to counsel on April 14, 2004.
As a result, on April 26, 2004, the Ciba Defendants and the
Olin Defendants filed motions for a declaration that this Court
has subject matter jurisdiction based on the improper joining of
a New Jersey corporation. Freehold Cartage has since joined their
motions. Plaintiffs have opposed the Defendants' motions,
asserting that Freehold was properly joined as a defendant in
Civil actions brought in a state court may generally be removed
to district court if the district court has original
jurisdiction. 28 U.S.C. § 1441(a). Where removal is premised on
diversity jurisdiction, as it is here, the action is "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." 28 U.S.C. § 1441(b) (emphasis added). The
issue here is whether Freehold, a citizen of the State where this
action was brought, is a party that was "properly joined."
In the Third Circuit, the removing party has a "heavy burden"
to justify removal and may avoid remand only by demonstrating
that the defendant sued in his home state was fraudulently
joined. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d
Cir. 1992) (quoting Steel Valley Author v. Union Switch & Signal
Div., 809 F.2d 1006, 1012 n. 6 (3d Cir. 1987), cert.
dismissed, 484 U.S. 1021 (1988)). "Removal statutes are to be
strictly construed against removal and all doubts should be
resolved in favor of remand" Batoff, 977 F.3d at 851 (quoting
Steel Valley, 809 F.2d at 1010); see also Samuel-Bassett v.
KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004).
Therefore, "a district court must resolve all contested issues of
substantive fact in favor of the plaintiff and must resolve any
uncertainties as to the current state of controlling substantive
law in favor of the plaintiff." Boyer v. Snap-On Tools Corp.,
913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085
(1991). If even the possibility exists ...