United States District Court, D. Minnesota
MICHAEL P. MCGILL AND TATYANA BOBROVA, as husband and wife, Plaintiffs,
CONWED CORPORATION and its predecessors, Defendant.
Michael S. Polk, Michael R. Strom, and Ryan T. Gott, Sieben
Polk, PA, for Plaintiffs.
Michael M. Sawers and Steven J. Kirsch, Briggs & Morgan,
PA, Robert D. Brownson and Kristi K. Brownson, Brownson &
Linnihan, PPLP for Defendant.
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on (1) Defendant's Motion to
Dismiss for lack of personal jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(2), or, in the alternative, for
dismissal under the abstention doctrine of Colorado River
Water Conservation District v. United States, 424 U.S.
800 (1976) [Doc. No. 8]; and (2) Plaintiffs' Motion to
Remand to State Court pursuant to 28 U.S.C. § 1447(c)
[Doc. No. 18]. For the reasons set forth below, the Court
denies Plaintiffs' Motion to Remand to State Court and
grants Defendant's Motion to Dismiss for lack of personal
move the Court to remand this case to Ramsey County District
Court arguing that it was improperly removed because this
Court does not have subject matter jurisdiction. When an
action is removed to federal court, “the party seeking
removal and opposing remand” has the “burden of
establishing federal subject matter jurisdiction.”
In re Bus. Men's Assurance Co. of Am., 992 F.2d
181, 183 (8th Cir. 1993) (citing Bor-Son Bldg. Corp. v.
Heller, 572 F.2d 174, 181 n.13 (8th Cir.1978)). “A
defendant is not required to submit evidence establishing
federal-court jurisdiction with its notice of removal unless
the plaintiff or the court questions the defendant's
claim of jurisdiction.” Pudlowski v. St. Louis
Rams, LLC, 829 F.3d 963, 964 (8th Cir. 2016) (per
curiam) (citing Dart Cherokee Basin Operating Co., LLC v.
Owens, 135 S.Ct. 547, 554 (2014)). But when a plaintiff
challenges jurisdiction on a motion to remand, the district
court may consider sworn affidavits submitted by the parties
to resolve whether it has federal subject matter
Court finds that it has subject matter jurisdiction and
denies Plaintiffs' Motion to Remand, Defendant Conwed
Corporation (“Conwed”) moves the Court to dismiss
this action on the grounds that personal jurisdiction cannot
be exercised over Conwed in this forum. When a defendant
challenges the existence of personal jurisdiction, the
plaintiff bears the burden of making “a prima facie
showing of personal jurisdiction over the challenging
defendant.” Fastpath, Inc. v. Arbela Techs.
Corp., 760 F.3d 816, 820 (8th Cir. 2014). The plaintiff
may meet this burden by pleading facts sufficient to support
a reasonable inference that the defendant can be subjected to
jurisdiction within the forum state. See Dever v. Hentzen
Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir. 2004).
This inference is subject to testing not solely on the
pleadings and matters embraced by the pleadings, but
“by the affidavits and exhibits presented with the
motions and in opposition thereto.” Dairy Farmers
of Am., Inc. v. Bassett & Walker Int'l, Inc.,
702 F.3d 472, 475 (8th Cir. 2012) (citation omitted).
Where-as is the case here-the Court has not conducted an
evidentiary hearing, it must view the facts in the light most
favorable to the nonmoving party, and resolve all factual
conflicts in favor of that party. Pangaea, Inc. v. Flying
Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011) (citing
Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946
F.2d 1384, 1387 (8th Cir. 1991)). However, “the party
seeking to establish the court's personal jurisdiction
carries the burden of proof and that burden does not shift to
the party challenging jurisdiction.” Fastpath,
760 F.3d at 820.
these principles in mind, the Court recites the background of
the case considering not only Plaintiffs' complaint, but
also the affidavits and exhibits presented by both parties in
conjunction with their respective motions.
formerly known as the Wood Conversion Company, was
incorporated under the laws of Delaware in 1921.
(See Decl. of Robert E. Crowson, Jr. (“Crowson
Decl.”) at ¶ 3 [Doc. No. 11].) In February of that
year, it registered itself in Minnesota as a foreign
corporation. (See Aff. of Michael M. Sawers
(“Sawers Aff.”), Ex. C at 1 [Doc. No. 12-3].)
From at least 1959 to 1985, Conwed was in the business of
manufacturing ceiling tile, some of which contained asbestos.
(Crowson Decl. ¶¶ 6-8.) Specifically, Conwed
produced asbestos-containing ceiling tile from 1959 to 1974.
(Id. ¶ 6.) Until 1985, Conwed manufactured tile
in a mill located in Cloquet, Minnesota. (Id. ¶
7.) That year, however, Conwed sold its ceiling tile
business, including the mill in Cloquet, and it thereafter
ceased manufacturing, selling, and distributing ceiling tile
or any other product. (Id. ¶ 7-8.)
some of the years that Conwed manufactured ceiling tile,
Plaintiff Michael P. McGill (“McGill”) worked as
a laborer, carpenter apprentice, and carpenter in Kansas.
(Aff. of Michael Polk (“Polk Aff.”), Ex. A -
State Court Complaint (“Compl.”) at 3, ¶ 4
[Doc. No. 17-1].) Between 1968 and 1975, he worked at his
father's Kansas City interior construction company, the
Jim McGill Company. (Polk Aff., Ex. C at 26-28 [Doc. No.
17-3].) The Jim McGill Company distributed and installed
ceiling tile manufactured by Conwed, and McGill installed
this tile at job sites primarily in Kansas. (Id. at
alleges that during his work installing ceiling tile, he was
exposed to the asbestos-containing products and raw materials
manufactured, sold, and/or distributed by Conwed. (Polk Aff.,
Compl. at 3-4, ¶¶ 4-5.) McGill further alleges that
as a result of inhaling and ingesting the asbestos fibers
contained in these products, he contracted mesothelioma.
(Id. at 3, ¶ 4.) McGill's mesothelioma was
diagnosed in December of 2015. (See Polk Aff., Ex.
B.) After this diagnosis, Plaintiff, along with his wife
Tatyana Bobrova (collectively, “Plaintiffs”),
first relevant legal action that Plaintiffs brought against
Conwed was initiated in the Missouri Circuit Court, in St.
Louis, Missouri, in March of 2016. (Def.'s Mem. in
Support of Mot. to Dismiss (“Def.'s Mem. Mot.
Dismiss”) at 5 [Doc. No. 10].) In addition to Conwed,
that action named 13 other defendants. (Id.) Conwed
successfully moved to dismiss that lawsuit for lack of
personal jurisdiction. (Id.) On January 19, 2017,
the Missouri Circuit Court dismissed Plaintiffs'
complaint against Conwed without prejudice, finding, in part,
that Conwed was a “Delaware corporation with its
principal place of business in New York.”
(Id.) Neither Conwed nor Plaintiffs requested that
the Missouri Circuit Court immediately enter judgment as to
Conwed pursuant to Missouri Rule of Civil Procedure 74.01(b),
which operates like Federal Rule of Civil Procedure 54(b).
(Id. at 10.)
these events, on March 16, 2017, Plaintiffs sued Conwed-as
the sole defendant-in Ramsey County District Court in
Minnesota. (See Polk Aff., Compl.) On that date,
Plaintiffs served a summons and the complaint upon C.T.
Corporation Systems, Inc. (“CT Corporation”).
(See Polk Aff., Ex. M [Doc. No. 17-13].) CT
Corporation is listed as the “Registered Agent”
for Conwed on the Minnesota Secretary of State's website.
(See Polk Aff., Ex. L [Doc. No. 17-12].) That
Minnesota state complaint alleged negligence, strict
liability, and breach of warranty. (See Polk Aff.,
Compl.) These allegations, according to Defendant, are nearly
identical to those of the Missouri Action. (Def.'s Mem.
Mot. Dismiss at 10.) On April 4, 2017, Conwed removed the
case to federal court, invoking federal diversity
jurisdiction per 28 U.S.C. § 1332. (See Notice
of Removal ¶ 1, 5 [Doc. No. 1].)
Plaintiffs' motion to remand implicates the Court's
subject matter jurisdiction, the Court will consider it
Plaintiffs' Motion to Remand
move to remand this case to state court pursuant to 28 U.S.C.
§ 1447(c). An action brought in state court may be
removed to federal court if it could have originally been
filed in federal court. 28 U.S.C. § 1441(a). After
removal, a plaintiff may move to remand the matter back to
state court if the federal court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c). The removing party
bears the burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). “All
doubts about federal jurisdiction should be resolved in favor
of remand to state court.” Junk v. Terminix
Int'l Co., 628 F.3d 439, 446 (8th Cir. 2010)
Defendants removed to federal court invoking the Court's
diversity jurisdiction. Conwed asserts that it is a citizen
of Delaware and New York. (See Notice of Removal at
2, ¶ 6.) It further contends that because Plaintiffs are
both citizens of Kansas, complete diversity of citizenship
exists. (Id.) Plaintiffs disagree, asserting
“there is not complete diversity between Plaintiffs and
Defendant Conwed Corporation as required by 28 U.S.C. §
1332” because Conwed is a citizen of Delaware and
Minnesota. (See Pls.' Mot. Remand at 2 [Doc. No.
outset, the Court notes that even if Defendant were indeed a
citizen of Minnesota, as Plaintiffs allege, there would still
be complete diversity of citizenship between the
parties.See OnePoint Solutions, LLC v.
Borchert, 486 F.3d 342, 346 (8th Cir. 2007)
(“Complete diversity of citizenship exists where no
defendant holds citizenship in the same state where any
plaintiff holds citizenship.”). To the extent that
Plaintiffs argue that removal was improper, then, the Court
will construe their motion to be advanced under the removal
statute, 28 U.S.C. § 1441(b)(2), which provides that if
removal is solely based on diversity of citizenship, as is
the case here, removal is prohibited if any defendant is a
citizen of the state in which the action is brought. See
Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145 (8th Cir.
1992) (“Title 28 U.S.C. § 1441(b) makes diversity
jurisdiction in removal cases narrower than if the case were
originally filed in federal court by the plaintiff. A
defendant may not remove to federal court on the basis of