Jurisdiction: United States District Court for the Southern District of New York; September 18, 2023

Plaintiff Ann Greenberg’s asbestos-related lawsuit against defendants Johnson & Johnson and Kolmar Laboratories asserts that she contracted an asbestos-related disease from her use of Johnson’s Baby Powder, whichshe alleged contained asbestos-contaminated talc.

Johnson & Johnson filed a motion to remove the action to federal court on August 27, 2021, invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Plaintiff opposed, and Johnson & Johnson filed a timely reply alleging the plaintiff fraudulently joined Kolmar to defeat federal jurisdiction.

Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an action to the United States District Court in “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” The district courts “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, as well as “all civil actions where the matter in controversy exceeds the sum of $75,000, exclusive of interests and costs, and is between . . . citizens of different States,” id. § 1332(a).

If Kolmar was not a fraudulently joined defendant, section 1441(b)(2) prohibited the removal of this action; if Kolmar was fraudulently jointed, removal was proper. “A plaintiff may not defeat federal court diversity jurisdiction by improperly joining as a defendant a non-diverse party with no real connection to the controversy. This rule is known as the doctrine of fraudulent joinder[.]” Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 215 (2d Cir. 2010).

Johnson & Johnson made three arguments in its motion to remand based on Kolmar’s fraudulent joinder. First, during the time plaintiff used Johnson’s Baby Powder, Kolmar was not involved in the manufacturing process. Second, plaintiff cannot show she ever used products created specifically by Kolmar. Finally, Johnson & Johnson argued that Kolmar is immune from liability under New York law as a “mere contractor.”

In denying Johnson & Johnson’s removal, the court found that issues of fact existed on all three arguments, and having rejected Johnson & Johnson’s arguments that Kolmar was fraudulently joined, the court determined that it lacked subject matter jurisdiction over the action, and granted plaintiff’s motion to remand.

Read the full decision here.