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COME NOW Plaintiffs CONRAD BEAUCHAMP and OPAL GERALDINE BEAUCHAMP, by and through their undersigned counsel, and hereby move this Court for an immediate remand of this action, which was improperly removed during trial from the Superior Court for the County of Los Angeles. In support of this Motion, Plaintiff states as follows:


Conrad Beauchamp suffers from a rare and fatal asbestos-related cancer called mesothelioma. Due to his deteriorating medical condition, Mr. Beauchamp received a preferential trial setting under Cal. C.C.P. § 36. Trial began on February 26, 2007. Shortly after the jury was selected, Defendant Crane Co. removed the case to this Court. This eleventh-hour removal was wholly improper and threatens to thwart the purpose of the preferential trial setting mandated by California law. Crane Co. used the same tactic to disrupt a trial last year in Norris, et al. v. Thorpe Insulation Co., et al., Cause No. CV-06-05420, and this Court remanded the case in a matter of days. See Order Granting Emergency Motion to Remand, attached as Exhibit 1. The case should likewise be remanded to the state court immediately to avoid any further disruption of the proceedings.



Courts “strictly construe the removal statute against removal jurisdiction. Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). A “strong presumption” exists against removal jurisdiction and “the defendant always has the burden of establishing that removal is proper.” Id.

Under the well-settled “voluntary/involuntary rule,” a suit filed in state court must “remain in state court unless a ‘voluntary’ act of the plaintiff brings about a change that renders the case removable.” California v. Keating, 986 F.2d 346, 348 (9th Cir. 1993) (citations omitted). When “the plaintiff has unsuccessful[ly] resisted a motion to dismiss or demurrer and upon the dismissal . . . the case becomes removable, courts deny removal because the act giving rise to dismissal is not voluntary on the part of the plaintiff.” Simpson v. Union Pacific R. Co., 282 F.Supp.2d 1151, 1160 (N.D. Cal. 2003).

Defendant Thorpe Insulation Co. (“Thorpe”) is a California corporation, and removal is improper under 28 U.S.C. § 1441(b) if any defendant is a citizen of the state in which the action is brought. Thorpe was dismissed from the case over the Plaintiffs’ objection. Because the dismissal of Thorpe was not the result of any “voluntary act” by the Plaintiffs, the case is not removable.

Echoing arguments that were rejected the last time Crane employed this tactic, Crane essentially asks the Court to hold that the Plaintiffs “voluntarily” gave up claims against Thorpe. No legal basis exists for such an argument. As this Court explained in Norris, the argument made by Crane “even if true, fails to meet the standard for voluntary abandonment.” Exhibit 1 at 4.

Crane relies on inapplicable cases in which a plaintiff has “unequivocally effects an abandonment.” See, e.g., Schmidt v. Capitol Life Ins. Co., 626 F.Supp. 1315, 1317 (N.D. Cal. 1986). For example, Crane cites Southern Pac. Co. v. Haight, 126 F.2d 900 (9th Cir. 1942), in which plaintiffs proceeded to trial without effecting service on the fictitious resident defendants. See id. at 902. In Heniford v. American Motors Sales Corp., 471 F.Supp. 328 (D. S.C. 1979), another case cited by Crane, the plaintiff’s counsel in closing argument “repeatedly instructed the jury not to return a verdict against the resident defendant.” Id. at 333. Such cases justified a finding that the plaintiffs had “unequivocally effect[ed] an abandonment.” Crane has not identified any analogous facts in this case. Crane’s argument cannot possibly overcome the “strong presumption” against removal jurisdiction.


Nor can Crane demonstrate that Thorpe was fraudulently joined. A presumption exists against a finding of fraudulent joinder, and a removing defendant must prove to “a near certainty” that joinder was fraudulent. Diaz v. Allstate Ins. Group, 185 F.R.D. 581, 586 (C.D. Cal. 1998). The burden of proof for a defendant claiming fraudulent joinder is “a heavy one.” Davis v. Prentiss Properties Ltd., Inc., 66 F.Supp.2d 1112, 1113 (C.D. Cal. 1999). All doubts regarding a claim of fraudulent joinder must be resolved in favor of remand. Macey v. Allstate Property and Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002).

In the Norris case, which involved similar arguments, this Court held that Crane’s allegations did not “meet the strict standard of proof necessary to find fraudulent joinder of the defendant Thorpe.” Exhibit 1 at 5. To sustain a claim of fraudulent joinder, the defendant must first show that the plaintiff “fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state . . . ” Briano v. Conseco Life Ins. Co., 126 F.Supp.2d 1293, 1296 (C.D. Cal. 2000) (citation omitted). In the context of fraudulent joinder, the court’s inquiry into the viability of the claims is even less stringent than the liberal standard applied to motions to dismiss under Fed.R.Civ.P. 12(b)(6). Id. at 1299 n.5 (C.D. Cal. 2000); see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3rd Cir. 1992); Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999).

The “mere fact that a claim is ultimately unsuccessful does not necessarily mean that its joinder was fraudulent. . . . To constitute fraudulent joinder, the non-diverse claim must not only be unsuccessful, it must be untenable ab initio.” Davis, 66 F.Supp.2d at 1115 (emphasis added). The question is therefore whether, from the outset, there was “any possibility that plaintiff will be able to establish liability against the party in question.” Id. at 1296. If there is “a non-fanciful possibility that plaintiff can state a claim under California law against the non-diverse defendants the court must remand.” Macey, 220 F.Supp.2d at 1117.

“Fraudulent joinder” is a “term of art” and has nothing to do with the “‘mental state’ of the plaintiff . . . .” Davis v. Prentiss Properties Ltd., Inc., 66 F.Supp.2d 1112, 1114 (C.D. Cal. 1999). If the plaintiff has stated a colorable legal claim against the resident defendant, the “motive for joining such a defendant is immaterial.” Albi v. Street & Smith Publications, 140 F.2d 310, 312 (9th Cir. 1944); see also Fink v. Unumprovident Corp., 2005 WL 2375168, 5 (N.D. Cal. Sept. 27, 2005) (quoting Albi and explaining that the Ninth Circuit “has foreclosed analysis of the plaintiff’s intentions in cases of fraudulent joinder.”).

The lack of intention to seek a judgment is an additional prerequisite for finding fraudulent joinder, not an alternative basis for such a finding. See, e.g., Diaz v. Allstate Ins. Group, 185 F.R.D. 581, 586 (C.D. Cal. 1998) (outlining the “series of requirements” for proving fraudulent joinder, including proving “to a near certainty” that a plaintiff has “no actual intention to prosecute an action against those particular resident defendants.”). Joinder is fraudulent if “there is no intention to get a joint judgment, and there is no colorable ground for so claiming.” Charlin v. Allstate Ins. Co., 19 F.Supp.2d 1137, 1140 (C.D. Cal. 1998) (emphasis added). The relevant case law requires “both an absence of any reasonable basis for the suit and no intention to prosecute . . . [T]he motive of the plaintiff, taken by itself, does not affect the right to remove.” Fink, supra, citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921) (emphasis added). If a removing defendant does not establish initially that the claim “has no reasonable basis in fact,” no further inquiry into “Plaintiff’s counsel’s alleged lack of intention to pursue relief” is either necessary or appropriate. Id.

Even if a “lack of intention to pursue relief” were a separate basis for establishing fraudulent joinder, Crane has not even attempted to meet its burden. The burden rests squarely on the defendant to prove fraudulent joinder to “a near certainty.” Charlin v. Allstate Ins. Co., 19 F.Supp.2d 1137, 1140 (C.D. Cal. 1998) (citations omitted). Crane has not even arguably met that heavy burden. This Court should not countenance further disruption or delay of this proceeding.


Crane has not met its burden of establishing federal jurisdiction. The trial in this case was improperly interrupted, and the Plaintiffs respectfully request that it be remanded to the state court immediately.