MEMORANDUM AND ORDER
JOHN A. ROSS, District Judge.
This matter is before the Court on Plaintiffs' Motion for Remand Pursuant to 28 U.S.C. § 1447 [ECF No. 5]. The matter has been fully briefed and oral argument was held on December 21, 2011. For the reasons set forth below, the Motion will be granted.
On September 8, 2010, Plaintiffs filed suit against J.P. Bushnell Packing Supply Company, Inc. ("J.P. Bushnell") and Mine Safety Appliances Company ("MSA"), among others, for asbestos exposure in the Circuit Court of the City of St. Louis (Doc. # 9-1) ("the original lawsuit"). Plaintiffs voluntarily dismissed their lawsuit without prejudice on the day of trial, September 12, 2011 (Doc. # 9-15). Following dismissal, Plaintiffs re-filed their lawsuit against J.P. Bushnell and MSA, as well as against Oakfabco, Inc., and Union Carbide Corporation in the Circuit Court of the City of St. Louis on October 12, 2011 (Doc. # 3) ("the instant action"). Plaintiffs' claims against J.P. Bushnell and the other defendants herein are for negligence, strict liability, and willful and wanton conduct.
MSA removed the instant action to this Court on November 23, 2011 based on diversity jurisdiction, alleging Plaintiffs fraudulently joined J.P. Bushnell (Doc. #1). In its Notice of Removal, MSA contends joinder of J.P. Bushnell is fraudulent because there is no reasonable basis in fact or law supporting Plaintiffs' claims against J.P. Bushnell, and because Plaintiffs have no real intention of prosecuting their action against J.P. Bushnell, citing
The party seeking removal and opposing remand has the burden of establishing federal subject matter jurisdiction.
Plaintiffs allege Plaintiff John Carey contracted mesothelioma as a result of exposure to asbestos-containing products manufactured, sold and distributed by defendants. MSA argues Plaintiffs have provided no factual support for their allegations against J.P. Bushnell despite having had the opportunity to fully develop their evidence as to J.P. Bushnell in the original lawsuit; however, neither MSA nor J.P. Bushnell advanced a motion to dismiss or motion for summary judgment in the original lawsuit, and J.P. Bushnell remained a party defendant in the original lawsuit up to and including the day of trial.
The Court finds Plaintiffs have stated a colorable claim against J.P. Bushnell under Missouri law. In his deposition, Plaintiff testified he worked with or around "screw cases" at Eagle Picher that contained an asbestos "rope" used to seal them. (Doc. # 9-2, p. 129:17-25; 130:1-25; 131:1-25; 132:1-20). Plaintiff's co-worker, Clifford Funk, also testified on deposition about the asbestos "string" around the "screw casings" at Eagle Picher, which "string" gave off "[q]uite a bit" of dust when handled. (Doc. # 9-5, p. 96:8-25; 97:1-25). Although Plaintiff and Funk were unable to identify the manufacturer of the "rope" or "string" by name, Plaintiffs contend the product is similar and consistent with the type of product distributed by J.P. Bushnell, relying on Bushnell's Answers to Interrogatories (Doc. # 10-4), and Index of Mechanical Packings (Doc. # 10-5).
MSA provides an affidavit from a J.P. Bushnell representative, Dennis Sullivan, President and Chief Executive Officer, stating that J.P. Bushnell never sold or distributed products or materials to Eagle Picher (Doc. # 9-16). The affidavit does no more than establish that J.P. Bushnell did not directly sell or distribute products to Eagle Picher. The Court cannot discern from the affidavit whether J.P. Bushnell's products could have found their way to Eagle Picher after being incorporated into another manufacturer's product. At most, MSA has created a factual dispute on Plaintiffs' claims against J.P. Bushnell, which is for the state court to decide on remand.
In sum, Plaintiffs have made a colorable claim against J.P. Bushnell. MSA has not met its burden to show that joinder was fraudulent. Therefore, Plaintiffs' Motion to Remand must be granted.