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WARE v. CIBA SPECIALTY CHEMICALS CORPORATION

August 4, 2004.

BOBBY WARE, et al., Plaintiffs,
v.
CIBA SPECIALTY CHEMICALS CORPORATION, et al., Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

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.

  I. BACKGROUND

  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, ¶ 4.)*fn5

  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 this action.

  II. DISCUSSION

  A. Standard of Review

  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 ...


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