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McGill v. Conwed Corp.

United States District Court, D. Minnesota

October 10, 2017

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.



         This 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 jurisdiction.


         Plaintiffs 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 jurisdiction. Id.

         If the 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.

         With 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.


         A. The Parties

         Conwed, 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.)

         During 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 45-53.)

         McGill 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”), sued Conwed.

         B. Procedural History

         The 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.)

         Following 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].)


         Because Plaintiffs' motion to remand implicates the Court's subject matter jurisdiction, the Court will consider it first.

         A. Plaintiffs' Motion to Remand

         1. Legal Standard

         Plaintiffs 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) (citation omitted).

         Here, 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. 18].)

         At the 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.[1]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 ...

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