## Facts

- David B. Graver and Frances Graver sued multiple companies in the Pennsylvania Court of Common Pleas (Philadelphia County), alleging David Graver developed mesothelioma after exposure to asbestos connected to defendants’ products or worksites.
- The Gravers were Pennsylvania citizens.
- All defendant companies were non-Pennsylvania citizens except Crown Cork & Seal Company (Crown), which was a Pennsylvania citizen.
- Because Crown shared Pennsylvania citizenship with the Gravers, the action was not removable on diversity grounds when filed.
- The state court granted Crown’s motion for summary judgment and dismissed Crown from the case; the Gravers opposed Crown’s motion.
- After Crown’s dismissal, the remaining defendants removed the case to the United States District Court for the Eastern District of Pennsylvania, asserting diversity jurisdiction on the theory that complete diversity existed once Crown was out of the case.
- The removed action was handled as part of the Eastern District of Pennsylvania asbestos MDL (MDL No. 875).
- The Gravers moved to remand, arguing the voluntary–involuntary rule barred removal because Crown’s dismissal resulted from an adverse state-court ruling rather than any voluntary act by the Gravers.
- The removing defendants also argued that Crown (and any other Pennsylvania defendants) should be ignored for jurisdictional purposes because they were fraudulently joined.
- The Gravers additionally requested costs, fees, and sanctions under 28 U.S.C. § 1447(c) based on what they claimed was an improper removal.

## Issues

1. Whether a case that was not removable when filed due to a nondiverse defendant becomes removable on diversity grounds when the state court involuntarily dismisses that defendant by summary judgment over the plaintiff’s opposition (voluntary–involuntary rule).
2. Whether the removing defendants met their heavy burden to show fraudulent joinder of the Pennsylvania defendant(s), so their citizenship could be disregarded.
3. Whether the plaintiffs were entitled to costs, fees, or sanctions under 28 U.S.C. § 1447(c) as a result of the removal.

## Decision

- The court granted the motion to remand and returned the case to the Philadelphia County Court of Common Pleas.
- The court held that the voluntary–involuntary rule barred removal because the elimination of the nondiverse defendant occurred through an involuntary state-court order (summary judgment opposed by plaintiffs), not through the plaintiffs’ voluntary action.
- The court rejected the fraudulent-joinder argument, finding the removing defendants did not show that the claims against the Pennsylvania defendant(s) lacked any reasonable basis under state law at the time of joinder.
- The court declined to award the requested fees and sanctions under § 1447(c).

## Legal Principles

- Removal statutes are strictly construed, and doubts about removal jurisdiction are resolved in favor of remand.
- Under the voluntary–involuntary rule, a case that is nonremovable when filed becomes removable based on diversity only if the nondiverse defendant is eliminated by a voluntary act of the plaintiff (such as a voluntary dismissal or settlement); an involuntary dismissal, including summary judgment entered over the plaintiff’s opposition, does not make the case removable.
- Fraudulent joinder requires the removing party to show there is no reasonable basis in fact or law for the claim against the nondiverse defendant (or no genuine intent to pursue that defendant). The burden is heavy, and close questions are resolved in the plaintiff’s favor.
- The fact that a state court later grants summary judgment for a nondiverse defendant does not, by itself, establish that the defendant was fraudulently joined.
- Under 28 U.S.C. § 1447(c), a court may award “just costs and any actual expenses, including attorney fees” caused by removal, but such awards are not automatic upon remand and depend on whether removal lacked an objectively reasonable basis.

## Conclusion

Because the only Pennsylvania defendant was dismissed by an adverse state-court summary-judgment ruling that the Gravers opposed, the voluntary–involuntary rule prevented the remaining defendants from removing the case based on diversity, and the defendants also failed to prove fraudulent joinder; the federal court therefore remanded the action to state court and did not grant the requested fees or sanctions.


In re Asbestos Products Liability Litigation, 801 F. Supp. 2d 337 (2011)