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Elizabeth Lewis, Individually and As Executrix of the Estate of v. Asbestos Corp.

August 7, 2012

ELIZABETH LEWIS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF THOMAS I. LEWIS,
PLAINTIFF,
v.
ASBESTOS CORP., LTD. ET AL, DEFENDANTS.



The opinion of the court was delivered by: Wolfson, United States District Judge:

OPINION

Plaintiff Elizabeth Lewis ("Plaintiff" or "Lewis") has filed a motion to remand this matter back to New Jersey state court. Originally, Lewis filed an asbestos claim against a number of companies and Defendant CBS Corporation ("CBS") successfully removed the case to this court based on federal question jurisdiction. What followed was a complex procedural history that involved the matter being made part of a Multi-District Litigation ("MDL") case before the Eastern District of Pennsylvania granted summary judgment for CBS and reassigned the matter back to this court. The only defendants remaining are Bell Asbestos Mines, Ltd. ("Bell"), Metropolitan Life Insurance Company ("MetLife") and General Electric ("GE") (collectively "Defendants"). Plaintiff believes no independent basis for federal jurisdiction now exists because CBS is no longer a party. For the reasons stated below, the Court disagrees and deniesPlaintiff's Motion.

I.BACKGROUND

a.Factual Background

The following facts are taken from Plaintiff's Complaint, previously submitted affidavits, and the Eastern District's Opinion from the MDL matter. See Lewis v. Asbestos Corp., Ltd., MDL 875, 2011 WL 5881184 (E.D. Pa. Aug. 2, 2011). This case stems from Thomas Lewis' ("Decedent") alleged asbestos exposure. As a member of the U.S. Navy, the Decedent worked as a fireman aboard the U.S.S. Bigelow and the U.S.S. Springfield between 1962 and 1965. Compl. at ¶ 1. Then he worked at Johns Manville Plant in Manville, New Jersey from 1965 to 1966 and Chicago Bridge and Iron in Birmingham, Alabama from 1967 to 1977. Id. Afterwards, he worked at various paper mills and powerhouses until his retirement in 2000. Id. On May 18, 2006, he was diagnosed with malignant mesothelioma and eventually passed away on June 28, 2008.

Lewis alleges that Bell, GE, and MetLife were intimately involved in the production and manufacturing of the asbestos that caused Decedent's cancer. In particular, she alleges that Decedent was exposed to asbestos in the Navy turbines aboard the Bigelow and the Springfield. Bell argues that the Court has subject matter jurisdiction based on the diversity of the parties. GE argues that the Court has subject matter jurisdiction based on federal question because it operated under the control of a federal officer. In particular, GE asserts that the Navy closely monitored its asbestos laden turbines and held them to the highest of standards-so much so that the Navy governed every detail of the turbine. Additionally, GE alleges that the Navy had superior knowledge of any asbestos related health risks.

b.Procedural Background

On February 13, 2008, Lewis initiated this lawsuit in the Superior Court of New Jersey, Middlesex County. She dismissed GE from that action but then filed a similar complaint on August 8, 2008, against GE and other defendants that are no longer part of this matter. After the filing of the second litigation, the Superior Court granted Plaintiff's motion to consolidate the two actions.

CBS, a defendant because of its acquisition of Westinghouse Electric Corporation, individually filed a Notice of Removal based on 28 U.S.C. § 1442, the Federal Officer Removal Statute. ("FORS"). Once removed to this court, Plaintiff moved to remand back to state court, alleging that removal was untimely and that FORS was inapplicable. Prior to a hearing on the motion, the matter was transferred to MDL unit 875. In his July 29, 2011 Order, Judge Eduardo Robreno of the Eastern District of Pennsylvania denied Plaintiff's motion to remand. The parties then conducted discovery and the judge granted summary judgment for CBS. After the completion of the MDL-875 pre-trial proceedings, the case was transferred back to this court with Bell, MetLife, and GE as the remaining defendants. Plaintiff now moves to remand back to New Jersey state court arguing that without CBS, the court does not have subject matter jurisdiction. Defendant Bell and GE filed separate briefs in opposition. Plaintiff did not reply to either.

II.DISCUSSION

Defendants argue that remand is improper and the Court has subject matter jurisdiction based upon federal question and diversity grounds. See 28 U.S.C. §§ 1331, 1332. Whether addressing federal question or diversity, "[r]emoval statutes are to be strictly construed against removal, and all doubts are to be resolved in favor of remand." Lopienski v. Centocor, Inc., 2008 WL 2565065, *2 (D.N.J. Jun. 25, 2008); Brown v. Francis, 75 F.3d 860, 865 (3d Cir. 1996).

a.Diversity Jurisdiction

Bell argues that the Court retains jurisdiction based on the diversity of the parties. In order to find diversity jurisdiction, the plaintiff must have complete diversity of citizenship from all defendants and there must be more than $75,000 in controversy. See28 U.S.C. § 1331(a). If any plaintiff and any defendant share state citizenship, complete diversity would be defeated. Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365 (1978); Grand Union Superm. of the Virgin Isl., Inc., v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003). Currently, Bell asserts that diversity jurisdiction exists because both requirements are met. Plaintiff does not offer an argument against diversity jurisdiction in its initial motion and declined to file a reply. Bell does not offer any evidence in support of its claims.

Bell asserts that complete diversity exists among the parties. A corporation's citizenship is determined by its place of incorporation and its principal place of business. Hertz Corp. v. Friend, 130 S. Ct. 1181, 1185 (2010). Lewis resides in Alabama. See Compl. ΒΆ 1 (Dkt. No. 1-1). Bell states that Bell is incorporated in and has its principal place of business in Quebec, Canada; that MetLife is incorporated in and has its principal place of business in New York; and that GE is incorporated in New York and has its principal place of business in Connecticut. Plaintiff has not alleged or shown that any of the Defendants are incorporated in Alabama or have their principal place of ...


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