Opinion
CIVIL NO. 5:01cv46BrS
February 1, 2002
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on Motion by the Plaintiffs to Remand [docket no. 22-1]. Having reviewed the Motion, briefs, applicable statutory and case law and being otherwise fully advised in the premises, the Court finds as follows:
FACTS
This case involves injuries allegedly caused by lead paint exposure at a house built in the early 1930's in Fayette, Mississippi. By the early to mid-1970's the house was occupied by Plaintiff Shermeker Pollard's step-father and mother, Johnny Crawford and Doris Gaines. Pollard was living at the house in 1991, when she gave birth to her son, the minor Plaintiff Trellvion Gaines. They continued to live there until 1994, when the house burned down.
From the record it appears that between 1974 and 1994, paint was applied to the home on four occasions. The first was in 1974; the second and third in the late 1970's and/or early 1980's; the fourth in the early 1990's. On every occasion, Doris Gaines and Vernon Collier, a house painter from the Fayette area, applied the paint to the Crawford-Gaines home.
The Plaintiffs' Second Amended Complaint alleges that Trellvion Gaines "inhaled or otherwise came into contact with injurious amounts of Defendants' lead. . . . [and] was also exposed to lead dust, chips and other debris which resulted from scraping, sanding and other removal of lead paint from his dwelling which occurred from the required procedure for application of defendant's non-lead based paint." (Second Amended Complaint, p. 4). The Complaint further alleges that Pollard, as the mother of the child, "has suffered mental anguish in addition to expenses for medical treatment of the minor child. . . ." (Second Amended Complaint, p. 5). In addition to Sherwin-Williams and NL Industries, the Complaint names as Defendants four Mississippi residents, all of whom are or were home supplies retailers in the Fayette, Mississippi, area at some time during the "exposure period" in question. The Plaintiffs assert their claims against all the Defendants under three theories of liability: strict liability, negligence and fraudulent concealment and misrepresentation.
The Original Complaint was filed on January 23, 2001, in the Circuit Court of Jefferson County, Mississippi. The Defendants timely removed the case pursuant to 28 U.S.C. § 1446 (a), claiming that the Mississippi Defendants have been fraudulently joined and that therefore diversity jurisdiction exists under 28 U.S.C. § 1332 (a). The Plaintiffs now move the court to remand their suit to state court on the grounds that their joinder of the local Defendants is not fraudulent and therefore the diversity of the parties is not complete.
DISCUSSION
"The burden of proving that a plaintiff fraudulently joined nondiverse defendants is heavy. The removing party must prove that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court, or that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts." Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983) (emphasis added). All ambiguities in the controlling law of a state must be resolved in favor of the plaintiff. Carriere v. Sears, Roebuck Co., 893 F.2d 100 (5th Cir. 1990). In Iron Works Unlimited v. Purvis, 798 F. Supp. 1261 (S.D. Miss. 1992), the Court explained:
[I]f there is even a possibility that a state court would find a cause of action against any one of the named instate defendants on the facts alleged by the plaintiff, then the federal court may find that the in-state defendants have been properly joined, that there is incomplete diversity, and that the case must be remanded to the state courts.
The Court must also favor the nonmoving party with regard to all factual ambiguities, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. [The Court does not], in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts."Badon v. RJR Nabisco, 224 F.3d 382, 393-94 (5th Cir. 2000).
Liability for Selling Lead-Based Paint
In order to prevail in their opposition to remand, the removing Defendants must show that there is no possibility of recovery against any one of the three nondiverse Defendants.
First, the Defendants submit the affidavit of Robert Case, who states that his business, which was established in 1983, "never sold any lead-based paint products." (Defendants' Exh. J). The date of Fayette Lumber's establishment is significant because it postdates a series of regulations passed in the 1970s, whereby the federal government banned the manufacture and marketing of lead-based paint. While the ban appears not to have been applied to retail stocks of paint already in existence before the regulations were enacted, the Plaintiffs do not rebut the Defendants' point that a paint retailer who opened for business in 1983 could not have sold lead-based paint at any time. See Plaintiffs' Exh. A. In fact, Fayette Lumber is nowhere mentioned in the Plaintiffs' Rebuttal Brief. The Court therefore concludes that the Plaintiffs concede that Fayette Lumber should not have been joined to the claims of strict liability and fraudulent concealment and misrepresentation.
The Plaintiffs have sued William Darsey as successor-in-interest to Darsey Hardware; they have also sued Hirsch's Store, which Darsey operated at all times material to this action. Both establishments are now defunct. According to Darsey's deposition testimony, Hirsch's Store and Darsey Hardware shared the same building and were separated by a brick wall that ran through the building. In their Notice of Removal, the Defendants claim that "Hirsch's Store . . . never sold paints, lead-based or otherwise. Hirsch's Store was a general store which sold clothing and groceries." (Notice of Removal, p. 4). The Plaintiffs do not rebut this assertion in their Briefs, and both parties refer to the alleged sale of lead-based paint as having occurred at Darsey Hardware. Vernon Collier's deposition testimony also attests to the different products sold at the two stores. However, in an abundance of caution, and heeding the Fifth Circuit's mandate that even the possibility of recovery warrants remand, the Court must address the possibility of recovery against Hirsch's Store, which it does in conjunction with its analysis of the possibility of recovery against Darsey's Hardware.
The Plaintiffs' argument in support of remand centers on the alleged purchase of lead-based paint at Darsey/Hirsch's in 1974. Because the house where the paint was applied was destroyed by fire in 1994 and because the Plaintiffs have not presented any documentary evidence reflecting what kind of paint was bought in 1974, the Defendants are correct in pointing out that, "[f]or a reasonable fact-finder to conclude that lead paint was actually purchased from Darsey/Hirsch's in 1974 for use on plaintiffs' home, plaintiffs must, at least, provide one witness who can say . . . that they purchased the paint and that it contained lead." (Defendants' Brief, p. 12).
Although it is unclear whether Doris Gaines or Vernon Collier or both of them actually went to Darsey/Hirsch's to purchase the paint, they are the only two people who have conclusively stated that the paint applied in 1974 was bought at that store. Neither of these witnesses, however, can conclusively state that the paint was lead-based. The most definite assertion that Gaines makes regarding the lead content of the paint is, according to her deposition testimony, only an "assumption" that the paint was lead-based. (Defendants' Exh. D, p. 30). Similarly, Collier admits that he does not remember what kind or brand of paint he used, what the writing on the label said, or if in fact it was lead paint. (Defendants' Exh. A, pp. 54, 70). The Plaintiffs' only support of these statements is an expert's report that, despite the federal government's ban in 1973, significant quantities of lead-based paint remained on retail shelves throughout the United States for years afterward. The report does not address the presence of lead paint for sale in Fayette, Mississippi, or any other particular location.
While it is true that all questions of fact and law must be resolved in favor of the non-removing party, and although the burden of showing that there is no possibility of a successful claim against the in-state Defendants rests heavily on the removing party, the Plaintiffs still must present the Court with something more than conclusory allegations in order to support their Motion to Remand. "As with a summary judgment motion, in determining diversity the mere assertion of `metaphysical doubt as to the material facts' is insufficient to create an issue if there is no basis for those facts." Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 816 (5th Cir. 1993) (citing Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986))). Here, the Plaintiffs' assertion that the paint bought at Darsey's Hardware in 1974 contained lead is supported only by the "assumption" of one of the people who might have purchased it, an assumption buttressed only by an expert's broad conclusions about the persistence of lead-based paint throughout the entire country after the federal government's ban on its manufacture. The Court finds that this evidence does not establish the existence of material facts that could stand as a basis for a viable claim.
Liability for the Sale of Non-Lead-Based Paint
The Plaintiffs' negligence claim partly concerns purchases of non-lead-based paint throughout the 1970's, 1980's and 1990's. The Plaintiffs' specific allegations are that the Defendants breached their duty "[t]o warn purchasers of their non-lead paint that it was extremely hazardous to prepare any surface for painting without first determining whether such surface was contaminated with lead based paint." (Second Amended Complaint, p. 8). Also, the Plaintiffs allege that the Defendants had a duty "[t]o provide instructions for the safe application of non-lead based paint" to surfaces previously painted with lead paint. (Id.)
The Court finds the negligence claims to be unfounded as to all the Mississippi Defendants. While it is uncontested that Darsey/Hirsch's and Fayette Lumber did sell non-lead paint at times material to this action, the Court reads Mississippi's products liability statute to impose liability for failure to warn only with regard to the particular product sold. Miss. Code Ann. § 11-1-63(a)(i)(2) states that a claimant must prove that, at the time the product left the control of the manufacturer or seller, "[t]he product was defective because it failed to contain adequate warnings or instructions." (emphasis added) The statute also requires a claimant to show that " [t]he defective condition rendered the product unreasonably dangerous to the user or consumer. Miss. Code Ann. § 11-1-63(a) (ii) (emphasis added).
Whatever warnings were required under Mississippi law, then, were only required as to the use of the non-lead paint itself, not the use of some other product. The Plaintiffs' allegations regarding the non-lead paint do not characterize that product as unreasonably dangerous. Nor do the Plaintiffs offer any legal support for the proposition that a seller in Mississippi must warn a purchaser about another allegedly dangerous or defective product. Because such a duty is not recognized by Mississippi law, there is no possibility of recovery against the in-state Defendants for selling non-lead-based paint.
Liability for conspiracy
The Complaint avers a conspiracy to conceal the harmful effects of lead in paint products, using the term "Defendants" without distinguishing between the in-state sellers and the out-of-state paint manufacturers named in the Complaint. Because the allegations of a conspiracy among the Defendants are very broad, the Court finds it difficult to pinpoint exactly what the in-state Defendants are alleged to have done in furtherance of the alleged conspiracy. In their Rebuttal Brief, the Plaintiffs retreat somewhat from construing any part of their case as one averring a conspiracy, but they adhere to their position that the Defendants "knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known about the danger of instructing consumers to scrape, sand, or wire brush a surface that had been painted [with lead paint] in preparation for applying new paint." (Plaintiffs; Rebuttal Brief, p. 9). Inasmuch as this reasserts a claim of failure to warn, it has been discounted supra; inasmuch as there are no facts before the Court to indicate the content of what other knowledge the in-state Defendants had or should have had regarding the hazards of lead-based paint, the Court finds the Plaintiffs' nebulous claim of a conspiracy involving the in-state Defendants to be unfounded.
Having found, then, that none of the Plaintiffs' allegations present a possibility of recovery against the Mississippi Defendants, the Court concludes that those Defendants have been fraudulently joined and shall be dismissed from this action. There being no remaining in-state Defendants, the Court also finds that it has diversity jurisdiction. 28 U.S.C. § 1332 (a). The Plaintiffs' Motion to Remand shall be denied. Accordingly,
IT IS HEREBY ORDERED that Defendants Robert Case d/b/a Fayette Lumber and Supply Company. William Darsey and Hirsch's Store be DISMISSED from this action;
FURTHER ORDERED that the Plaintiffs' Notion to Remand [docket no. 18-1] is DENIED.