Various v. Various

673 F. Supp. 2d 358, 2009 U.S. Dist. LEXIS 115408, 2009 WL 4729906

• Court: District Court, E.D. Pennsylvania
• Decided: December 10, 2009
• Docket: 2:09-cv-00103
• Status: Published

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

The instant motion to remand was filed on behalf of 444 plaintiffs (“plaintiffs”) arguing that this Court must remand their actions to Mississippi state court for lack of subject matter jurisdiction. Defendants 1 have filed timely responses. For the reasons set forth herein, plaintiffs’ motion to remand will be granted in part and denied in part.

I. BACKGROUND

These cases originated in Mississippi state court and were removed to federal court by defendants Union Carbide and ConocoPhillips. The basis for removal was the allegedly fraudulent joinder of two non-diverse defendants, Oilfield Service & Supply, Inc. (“Oilfield Service”) and Mississippi Mud., Inc. (“Mississippi Mud”). In addition, twenty-five of these cases were removed under the theory that plaintiffs were entitled to assert federal jurisdiction under the Outer Continental Shelf Lands Act (“OCSLA”).

After removal, plaintiffs filed motions to remand, on the same grounds considered here, in the Southern District of Mississippi. After considering these motions, United States District Judge Walter Gex remanded five of these cases to Mississippi state court. Before Judge Gex was able to rule on the remaining motions, the cases were transferred to the Eastern District of Pennsylvania and consolidated as part of MDL-875 by the Judicial Panel on Multidistrict Litigation. The remand motions remaining on the docket at the time of the consolidation with MDL-875 were denied by the MDL court without prejudice. (MDL-875 Administrative Order no. 11 at 3, doc no. 5936, 01-md-875.) Plaintiffs have renewed their request for remand in the 444 cases and this renewed motions is now before the Court.

Based on their procedural histories, these cases fall into three categories. Plaintiffs’ motion to remand will be considered under the facts of each category individually.

a.) Category 1: This category consists of 354 plaintiffs whose cases were initiated in 2004. Originally filed as a multi-plaintiff action, these plaintiffs had their cases severed into individual actions in Mississippi state court in 2006. After severance, each plaintiff filed an individual amended complaint. Defendants subsequently removed these cases as a group to federal court on Sept. 26, 2008. (Defs.’ Notice of Removal Ex. “D”, doc. no. 58, 09-mc-103.) The basis for removal in these cases is the alleged fraudulent joinder of non-diverse parties Oilfield Service and Mississippi Mud.

b.) Category II: This category consists of 65 cases which were filed in 2004, but were dismissed in Mississippi state court because they were filed in an improper venue. Plaintiffs re-filed these cases on Sept. 28, 2007, and defendants removed these cases as a group to federal court on Sept. 26, 2008, within one year of the date of re-filing. (Defs.’ Notice of Removal Ex. “D”, doc. no. 58, 09-mc-103.) As in Category I, the basis for removal in these cases is the alleged fraudulent joinder of non-diverse parties Oilfield Service and Mississippi Mud.

c.) Category III: This category consists of 25 cases which were removed based on federal question jurisdiction. The defendants aver that plaintiffs’ claims are governed by OCSLA. As an alternative basis of federal jurisdiction, defendants also assert the fraudulent joinder of Oilfield Service and Mississippi Mud.

After removal, the cases in all three categories were grouped by the Court for settlement purposes, pursuant to MDL-875 procedures. 2 See MDL-875 Website, Settlement Conference Procedures, available at www.paed.uscourts.gov/mdl875.asp. After attending several settlement conferences with defendants and Magistrate Judge Strawbridge, plaintiffs filed the instant motion to remand.

II. LEGAL STANDARD

A district court considering a motion to remand “must focus on the plaintiffs complaint at the time the petition for removal was filed ... [and] must assume as true all factual allegations of the complaint.” In re Briscoe, 448 F.3d 201, 218 (3d Cir.2006). The “party who urges jurisdiction on a federal court bears the burden of proving that jurisdiction exists ...” Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir.1990); see also Steel Valley Auth. v. Union Switch & Signal Din, 809 F.2d 1006, 1010 (3d Cir.1987), cert, dismissed sub nom. American Standard v. Steel Valley Auth., 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988) (“It remains the defendant’s burden to show the existence and continuance of federal jurisdiction.”). Because the removal of an action from the state court to a federal forum implicates comity and federalism, it is said that “removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.” Steel Valley Auth., 809 F.2d at 1010 (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir.1985)); accord Brown v. Francis, 75 F.3d 860, 865 (3d Cir.1996); Boyer, 913 F.2d at 111.

The practical application of this “all doubts” standard is to place upon a defendant “a heavy burden of persuasion” when contending that a non-diverse party has been fraudulently joined. Boyer, 913 F.2d at 111. To prevail, the removing party must show that there is “no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants ...” In re Briscoe, 448 F.3d at 218.

Title 28 U.S.C. § 1446(b) governs the timing of removal, specifying that “a case may not be removed on the basis of juris diction conferred by section 1332 of this title more than 1 year after commencement of the action.” Additionally, “notice of removal of a civil action ... shall be filed within thirty days after the receipt by the defendant ... of the initial pleading setting forth the claim for relief .... ” 28 U.S.C. § 1446(b). Where it is not evident from the initial pleading whether the case is removable, “a notice of removal may be filed within thirty days after receipt by the defendant ... of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ...” Id.

III. APPLICABLE LAW

As the MDL transferee court, the Court must first determine which jurisdiction’s law to apply to the substantive and procedural issues in these cases.

A. Procedural Law

On matters of procedure, the transferee court must apply federal law as interpreted by the court of the district where the transferee court sits. See In re Diet Drugs Prods. Liab. Litig., 294 F.Supp.2d 667, 672 (E.D.Pa.2003). Issues involving the timeliness of remand implicate federal procedural law. See In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., 624 F.Supp.2d 396, 408-9 n. 15 (E.D.Pa.2009).

As noted above, after the cases were removed to federal court but before they were consolidated into MDL-875, the plaintiffs filed motions to remand in 449 individual cases. Judge Gex of the Southern District of Mississippi, in the only rulings that were made prior to the transfer to MDL-875, granted five of these motions. The remaining motions were pending upon transfer to the Eastern District of Pennsylvania and consolidation under MDL-875. As to the five motions ruled on by Judge Gex, “there is nothing in the text [of § 1407] that authorizes a transferee judge to vacate or modify an order of a transferor judge,” In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 440 (3d Cir.2009), unless it is warranted after application of law of the case principles. Id. at 441-42 see also, In re Ford Motor Co., 580 F.3d 308, 312 (5th Cir. 2009). Under the circumstances of this case, the orders entered by Judge Gex on any motions to remand are binding on this Court.

There were, however, 444 motions to remand pending, but not yet acted upon by Judge Gex at the time the cases were transferred and consolidated under MDL-875. As described above, these motions were denied without prejudice after being transferred to the Eastern District of Pennsylvania, but have been renewed and are now before the Court. As to these cases, the Court will “adjudicate [these] transferred cases no differently than cases originally filed before it.” In re Korean Air Lines Disaster, 829 F.2d 1171, 1178 (D.C.Cir.1987). Therefore, as to the pending motion to remand, the Court will apply federal procedural law, as interpreted by the Third Circuit, the circuit where the transferee court sits.

B. Substantive Law

In applying substantive law, the transferee court must distinguish between matters of federal and state law. In matters requiring the interpretation of the Constitution, a federal law or a federal rule of procedure, a transferee court applies the law of the circuit where it sits. Therefore, in cases where jurisdiction is based on federal question, this Court, as the transferee court, will apply federal law as interpreted by the Third Circuit. 3

In matters where the Court has jurisdiction under 28 U.S.C. § 1332 based upon diversity of citizenship, the transferee court applies state substantive law as determined by the choice of law analysis required by the state in which the action was filed. Therefore, in the instant cases, this Court will apply the state substantive law as determined by the choice of law rules of Mississippi, the state in which the cases were filed. 4

IV. DISCUSSION

A. Category I

The Category I cases refer to the 354 plaintiffs who originally filed their cases in Mississippi state court in 2004, yet removal was not effected until 2008. (Pis.’ Mot. Remand 1-2, doc. no. 44, 09-me-103.)

Plaintiffs argue that the Category I cases should be remanded for two reasons. First, because they were removed beyond the time limitations on removal found in § 1446(b); and second because the plaintiffs have valid claims against two non-diverse defendants, Oilfield Service and Mississippi Mud, destroying diversity of citizenship and leaving the defendants no basis for invoking federal jurisdiction. (Pis.’ Memo. Supp. Mot. Remand 15, doc. no. 45, 09-mc-103.)

In response, the defendants present a two part argument against remand. First, they contend that they are entitled to an “equitable exception,” allowing for effective removal after one year has passed from the commencement of the action. (Defs.’ Resp. in Opp’n to Remand 12, doc. no. 58, 09-mc-103.) The defendants contend that, because the plaintiffs engaged in “forum manipulation,” equity requires the Court to allow the removal of these cases. (Id. at 13.) Second, if the Court applies an equitable exception, defendants argue that Oilfield Service and Mississippi Mud are fraudulently joined, and thus, are not proper forum defendants.

1. Equitable Exception

Section 1446(b) imposes a strict one year limitation on the length of time that a party has available for removal after the commencement of the action. As described above, the petition for removal in the Category I cases was not filed until more than four years after these cases were originally commenced in state court. 5 (Defs.’ Resp. in Opp’n Mot. to Remand at Ex. D, doc. no. 58, 09-mc-103.)

While § 1446(b) does not explicitly detail any exception to the one year limitation, the Third Circuit has held that the one year limit on removal is a procedural bar, not a jurisdictional one. Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 616 (3d Cir.2003). 6 The practical effect of this holding is to open the door to an examination of equitable considerations in deciding whether to allow exceptions to the one year limitation on removal.

In determining whether the equitable exception applies, courts have looked at the balance of the equities. In balancing the equities, courts have considered three factors: first, how vigorously the plaintiff prosecuted the action in state court; second, whether the defendants were complicit in any delay in removal of the case; and third, whether or not plaintiffs’ joining of the non-diverse defendants amounted to “flagrant forum manipulation.” See Namey v. Malcolm, 534 F.Supp.2d 494, 498 (M.D.Pa.2008) (holding that because defendants were partly responsible for the delay in state court, application of an equitable exception was inappropriate); Lee v. Carter-Reed Co., 06-1173, 2006 WL 3511160, at *5 (D.N.J. Dec. 5, 2006) (holding that defendants did not allege facts sufficient to show that plaintiffs conduct amounted to forum manipulation); In re Diet Drugs Prods. Liab. Litig., 03-20376, 2004 WL 1535806 at *4 (E.D.Pa. June 18, 2004) (holding that defendants met the burden of showing fraudulent joinder where there was no possibility for recovery against the in-state defendants).

Balancing the equities in the Category I cases, the first two factors are particularly relevant here. In essence, they ask how diligently the parties pursued the litigation in state court prior to the untimely removal. See Lee, 2006 WL 3511160 at *5; see also Barney, 534 F.Supp.2d at 498.

Arguing in favor of the application of an equitable exception, the defendants contend that they diligently pursued the litigation in state court but were frustrated by plaintiffs’ forum manipulation. Defendants claim that they participated in all pretrial fact discovery, but that Oilfield Service was purposely never pursued by plaintiffs in an effort to keep them in the case as a nominal forum defendant. (Defs.’ Resp. in Opp’n to Mot. Remand Ex. D, doc. no. 58, 09-mc-103.) As a result, defendants claim that they had no way of uncovering plaintiffs’ forum manipulation until Oilfield Service filed a motion for summary judgment. (Id.) Having timely filed their notice of removal within thirty days of receipt of Oilfield Service’s summary judgment motion, an “other paper” for purposes of § 1446(b), defendants claim they are entitled to an equitable exception which would allow them to satisfy both of the timing requirements found in § 1446. Id. at 16. 7

Arguing against the application of an equitable exception, plaintiffs counter that while they actively conducted litigation for more than four years in Mississippi state court, defendants were content to let the cases languish. Plaintiffs submit that they completed individual written fact sheets for each defendant and conducted some eighty-eight depositions. (Pis.’ Memo. Supp. of Mot. Remand 21, doc. no. 45, 09-mc-103.) Although plaintiffs never made any attempt to hide the fact that Oilfield Service and Mississippi Mud were the only non-diverse parties to the litigation, defendants never questioned or attempted to investigate the legitimacy of their joinder between 2004 and late 2008. (Id.) Plaintiffs further submit that they were continuing to develop this case against all defendants, including Oilfield Service and Mississippi Mud, when the cases were improperly removed to federal court. (See Pis.’ Memo. Supp. of Mot. Remand 20-22, doc. no. 45, 09-mc-103.)

The Court concludes that the defendants were content to let the cases languish in state court, failing to “use all procedural devices available to facilitate compliance with the one year requirement of § 1446(b).” 534 F.Supp.2d at 498. First, defendants apparently never sought discovery which would have established that the two non-diverse defendants were fraudulently joined. Second, despite the exchange of written discovery and the taking of numerous depositions, defendants never examined the basis for liability against the non-diverse defendants. (Pis.’ Memo. Supp. of Mot. Remand 21, doc. no. 45, 09-me-103.) In fact, in a case where the defendants argue that Oilfield Service and Mississippi Mud are so clearly absolved from liability that their joinder constitutes fraud, neither defendant filed a dispositive motion until August of 2008, four years after the cases were commenced. Under the circumstances, it is clear that, at least through lack of diligence, the defendants are partly responsible for the delay in proceedings in state court. Namey, 534 F.Supp.2d at 498.

On balance, the defendants have failed to show that the equities tilt in their favor, and application of an equitable exception is not appropriate.

2. Fraudulent Joinder

Since the Court will not apply an equitable exception to § 1446(b), an evaluation of whether Oilfield Service and/or Mississippi Mud are fraudulently joined is not necessary in the Category I cases. 8 Therefore, as to the 354 cases in Category I, plaintiffs motion to remand is granted.

B. Category II

The sixty-five plaintiffs in Category II originally filed their cases in 2004 as part of the same multi-plaintiff action as the plaintiffs in Category I. (Pis.’ Memo. Supp. of Mot. Remand 2, doc. no. 45, 09-mc-103.) Under Mississippi law, however, these sixty-five plaintiffs were dismissed from the action for improper venue. (Id.) These sixty-five cases were then re-filed by plaintiffs in September of 2007, this time in a proper Mississippi venue. The cases were then removed within the one year time limitation after they were refiled. (Id.)

As in Category I, removal under § 1332 was based on an allegation of fraudulent joinder of non-diverse parties. In their motion to remand, the plaintiffs argue that there is no basis for a finding of fraudulent joinder because Oilfield Service and Mississippi Mud are proper forum defendants and plaintiffs have asserted colorable claims against them.

1.Fraudulent Joinder

Whether a party was fraudulently joined to defeat diversity is a procedural issue. Because the issue of fraudulent joinder is a procedural issue, it is a matter of federal law as interpreted by the Third Circuit.

Fraudulent joinder may be found on either factual or legal grounds. In re Avandia, 624 F.Supp.2d at 411. The Third Circuit test for fraudulent joinder requires a finding that “there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.” Abels, 770 F.2d at 32 (quotation omitted).

In assessing the factual basis of a claim, a court may engage in a limited piercing of the pleadings to discover any fraudulent joinder. Boyer, 913 F.2d at 112. The extent of a court’s inquiry, however, is “less probing than the factual review a district court conducts in deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” In re Avandia, 624 F.Supp.2d at 412 (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992). Therefore, a court could remand the case to state court even though “the claim against that party [may] ultimately [be] dismissed [by the state court] for failure to state a claim upon which relief may be granted.” In re Briscoe, 448 F.3d at 217 (quoting Batoff, 977 F.2d at 852).

After piercing the pleadings, the federal court must determine that a claim is color-able if it is not “wholly insubstantial or frivolous.” Batoff, 977 F.2d at 852. Here, the Court will address each non-diverse defendant in turn to determine whether each was fraudulently joined solely to avoid federal jurisdiction.

2. Mississippi Mud

In opposition to the instant motion to remand, defendants argue that Mississippi Mud was fraudulently joined because they were never properly served, and therefore, they were intended to be a nominal forum defendant joined solely to defeat federal jurisdiction. (Defs.’ Memo, in Opp’n to Pis.’ Mot. Remand 21, doc. no. 58, 09-mc-103.) Additionally, defendants argue that the plaintiffs failed to pursue the proper successor in interest to Mississippi Mud, which is GEO Drilling Fluids, a diverse entity incorporated in Delaware and with a principal place of business in Connecticut. (Id. at 20.)

Plaintiffs admit that they were unable to timely serve Mississippi Mud, but submit that it was due to confusing public records related to Mississippi Mud’s corporate history. (Pis.’ Memo. Supp. of Mot. Remand 28, doc. no. 45, 09-mc-103.) Plaintiffs do not address the fact that GEO Drilling Fluids is the proper successor in interest to Mississippi Mud and would be a diverse defendant. Plaintiffs claim that, once they “learned more about [Mississippi Mud’s] corporate history, service was attempted, although it was [attempted] after 120 days.” (Id. at 28-9.)

Because service was never effected on Mississippi Mud and never attempted on its successor, plaintiffs have not shown a “real intention in good faith to prosecute the action” against Mississippi Mud or its successor. Abels, 770 F.2d at 32. Therefore, a finding of fraudulent joinder as to Mississippi Mud is appropriate.

3. Oilfield Service

Unlike Mississippi Mud, Oilfield Service was timely served by the plaintiffs. In opposing remand, the defendants argue that the Court should find that Oilfield Service was fraudulently joined for three reasons. First, they contend that plaintiffs never made a good faith effort to pursue claims against Oilfield Service because plaintiffs never deposed the corporate representative, never required Oilfield Service to respond to interrogatories, and never required Oilfield Service to respond to written requests for document production. (Defs.’ Memo, in Opp’n to Pis.’ Mot. Remand 18, doc. no. 58, 09-mc-103.) Second, defendants argue that there is no factual basis for plaintiffs’ claims against Oilfield Service because Oilfield Service never sold asbestos containing products. (Id.) Third, defendants claim that even if Oilfield Service did sell asbestos products, under Mississippi law, Oilfield Service is absolved of liability by the “innocent seller” doctrine. (Id. at 18.) Under this theory, there would be no legal basis for plaintiffs’ claims. 9

a. Plaintiffs’ Good Faith Effort to Pursue Claims

As to the first issue, the Court must determine whether plaintiffs made a good faith effort to pursue their claims against Oilfield Service in these cases. Plaintiffs state that they conducted fact discovery with witnesses and plaintiffs’ co-workers regarding Oilfield Service. (Pis.’ Memo. Supp. of Mot. Remand 21, doc. no. 45, 09-mc-103.) Furthermore, plaintiffs engaged in settlement conferences and significant pre-trial litigation in federal court in front of Magistrate Judge David R. Straw-bridge. Plaintiffs also responded to motions for summary judgment filed by Oilfield Service both before and after the cases were removed to federal court. (See Pis.’ Resp. Mot. Summ. J., doc. no. 67, 09-mc-103.)

Taking all the circumstances together, it appears that plaintiffs have actively conducted litigation against Oilfield Service. Despite the lack of formal discovery requests, plaintiffs have shown that they attempted to develop their claim against Oilfield Service, at least through informal means. Under these circumstances, defendants have failed to show that the plaintiffs’ joinder of Oilfield Service was in bad faith or clearly fraudulent.

b. Factual Basis for Plaintiffs’ Claims

As to the second issue, the Court must determine whether there is a factual basis for plaintiffs’ claims against Oilfield Service. On this issue, there are competing affidavits going to the nature of Oilfield Service’s asbestos business. The defendants have produced affidavits of the owners of Oilfield Service, Mr. Robert Stone, Sr. and Mr. Robert Stone, Jr. These affidavits state that, to their knowledge, Oilfield Service “never operated as a mud company or mud contractor” which would have sold or supplied asbestos containing drilling additives. (Def. Oilfield Service’s Memo, in Opp’n to Pis.’ Mot. Remand 7, doc. no. 57, 09-mc-103.) Defendants argue that the Stones’ averments negate any factual basis for plaintiffs’ claims against Oilfield Service.

In response, the plaintiffs call into question the reliability of these affidavits. Plaintiffs point out that, during the relevant period of potential exposure for all plaintiffs (1966-1980), Mr. Stone, Sr. was not the manager of Oilfield Service; Frank Stone, his uncle, was. (Pis.’ Memo. Supp. of Mot. Remand 8-9, doc. no. 45, 09-mc-103.) Mr. Stone, Sr. did not take over the day-to-day operations of Oilfield Service until 1980, and had limited knowledge of the business before that. (Id.) Furthermore, plaintiffs state that Mr. Stone, Jr. was between the ages of nine and twenty-two during the relevant time period, and did not even begin full-time work at Oilfield Service until 1981. (Id. at 11.)

Plaintiffs also produced the affidavit of John Lee Brown, who worked for Oilfield Service in 1968 and from 1972-1974. (Pis.’ Memo. Supp. of Mot. Remand 3, doc. no. 45, 09-mc-103.) Mr. Brown avers that Oilfield Service loaded, unloaded and delivered asbestos-containing products like gaskets, pump packings, and brakes. (Id. at 4.) In refuting the contents of this affidavit, the defendants point out that Mr. Brown is a plaintiff in a pending asbestos personal injury action with Oilfield Service as a defendant. (Def. Oilfield Service’s Memo, in Opp’n to Pis.’ Mot. Remand 3, doc. no. 57, 09-mc-103.)

Considering these competing affidavits, the Court finds that they cancel each other out. The burden of proving that there is no factual basis for the plaintiffs’ claims remains, however, with the defendants. Given that the proofs offered negate each other, the Court finds that the defendants have failed to carry the burden of showing that there is no factual basis for plaintiffs’ claims against Oilfield Service.

c. Legal Basis for Plaintiffs’ Claims

As to the third issue, the Court must determine whether, under Mississippi law, there is a legal basis for the claims against Oilfield Service. Under Mississippi products liability law, an “innocent seller” is a company that acts as a mere conduit of a product. Miss.Code Ann. § 11-1-63 (2004).

The plaintiffs in this case assert both failure to warn and design defect claims against numerous defendants in their original complaint. (See Compl. ¶ V.) With regard to Oilfield Service, as a distributor of the allegedly asbestos-containing mud, the most relevant claims are the failure to warn actions. Mississippi’s innocent seller doctrine states that in a products liability claim for failure to warn:

“the manufacturer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller, the manufacturer or seller knew, or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition.”

Miss.Code Ann. § 11 — 1—63(c)(i) (emphasis added).

Succinctly put, the statute requires the party asserting the defense to show that the manufacturer or seller did not know, and could not have known, about the danger that these asbestos products posed to the consumer. Furthermore, the party asserting the defense must also show that the ordinary consumer or user of these asbestos products would have known that the products contained asbestos, and that the asbestos could have harmful health effects.

The defendants argue that they are immunized from liability by this statute because they did not have actual or constructive knowledge of the dangers posed by asbestos. (Def. Oilfield Service’s Opp’n to Mot. Remand 13, doe. no. 57, 09-mc-103.) Therefore, since they had no knowledge, they could not be responsible for warning the user or consumer, regardless of whether such user knew of the dangers or not. (Id.)

To rebut Oilfield Service’s assertions, plaintiffs point to contemporary literature showing that knowledge of the dangerous health effects of asbestos was widespread in the 1970s, and that there are even studies on the health consequences of asbestos dating back to 1898. (Pis.’ Resp. Mot. Summ. J. Ex. 9, doc. no. 67, 09-mc-103.) Therefore, plaintiffs argue that a company like Oilfield Service, which was involved in an industry that used asbestos heavily, would have known of the negative health effects posed by asbestos. (Id.)

Furthermore, the plaintiffs rely on this same literature to bolster their argument that the average worker did not know the consequences of asbestos exposure during the relevant time period (1968-1980). (Id.) The plaintiffs further state that they are in the process of gathering more information about warnings that were placed on any products delivered by Oilfield Service, as well as plaintiffs’ general knowledge of the dangers of asbestos.

Relying on this literature and the testimony of Mr. Brown, plaintiffs aver that it is far from clear that Oilfield Service is entitled to the protections of § 11-1-63 of the Mississippi statutes. According to plaintiffs, under the limited inquiry permitted in a fraudulent joinder analysis, they have produced enough evidence to show that plaintiffs’ cause of action against Oilfield Service is not “wholly insubstantial or frivolous.” See Batoff, 977 F.2d at 852.

The Court agrees with the plaintiffs. The defendants have failed to show that either the factual or legal basis of plaintiffs claims are “wholly insubstantial or frivolous.” See Batoff, 977 F.2d at 852. This Court is permitted to make only a very limited inquiry beyond the four corners of the complaint, and must apply a standard more deferential to the plaintiff than the standard used in deciding a motion to dismiss. In re Briscoe, 448 F.3d at 218. Applying this standard, the Court determines that the plaintiffs have put forward enough evidence to demonstrate that there is some factual and legal basis for their claims against Oilfield Service.

Consequently, the Court finds that the cases in Category II include Oilfield Service as a proper forum defendant. As a result, there is no diversity of citizenship, rendering federal jurisdiction under § 1332 unavailable to defendants. Plaintiffs’ motion to remand is granted as to the plaintiffs in Category II.

C. Category III

The twenty-five plaintiffs in Category III were removed based on federal question jurisdiction under OCSLA. In their motion to remand, plaintiffs make two arguments. First, that the only OCSLArelated claims that these plaintiffs have are intertwined with valid Jones Act claims. Therefore, since a Jones Act case that is properly brought in state court is not removable under federal question jurisdiction, these cases must be remanded. (Pis.’ Memo. Supp. of Mot. Remand 35, doc. no. 45, 09-mc-103.) Second, plaintiffs contend that the two defendants who originally asserted federal question jurisdiction, Pool Offshore and Nabors, have been dismissed from the case and have withdrawn their removal petitions. (Id.)

As to plaintiffs’ first argument, defendants counter that these workers, who worked on oil rigs, do not have valid Jones Act claims and therefore, the cases fall squarely within the grant of federal jurisdiction found in OCSLA. (Defs.’ Memo, in Opp’n to Pis.’ Mot. Remand 24, doc. no. 58, 09-mc-103.) Since the cases do not implicate the Jones Act, the grant of federal jurisdiction found in OCSLA entitles defendants to a federal forum.

As to plaintiffs’ second argument, defendants argue that federal question jurisdiction is based on plaintiffs’ claims, not the status of any defendant, and therefore the fact that Pool Offshore and Nabors have withdrawn their removal petitions is irrelevant. (Id. at 25.) Finally, as an alternative basis for federal jurisdiction, defendants state that even if the Court finds that there is no OCSLA federal question jurisdiction in the Category III cases, there is fraudulent joinder of Mississippi Mud and Oilfield Service, entitling the defendants to § 1332 diversity jurisdiction under the arguments above. (Id. at 25-26.)

1. Applicability of Jones Act to Plaintiffs’ Claims

The Court agrees with the defendants that OCSLA grants federal jurisdiction over “all cases and controversies arising out of, or in connection with ... any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf.” 43 U.S.C. § 1349(b). OCSLA defines the term “outer Continental Shelf’ as “all submerged lands lying seaward and outside of the area of lands beneath navigable waters ...” 43 U.S.C. § 1301(a). Whether these oil rigs were involved in operations governed by OCSLA, and whether these operations are governed by the Jones Act, is a matter of federal substantive law. Since there is no Third Circuit precedent on these issues, the Court will look to other circuits for guidance on this issue.

Plaintiffs’ claims seem to fall directly within the grant of authority in OCSLA, since they are based on injuries sustained while working on oil rigs — exploring, developing or producing oil in the subsoil and seabed of the continental shelf. See 43 U.S.C. § 1349(b). The Fifth Circuit has held that when a case or controversy arises out of activity that occurred on a rig “affixed” to the Outer Continental Shelf, it is within the proper jurisdiction of the federal courts. Tennessee Gas Pipeline v. Houston Casualty Ins. Co., 87 F.3d 150, 154 (5th Cir.1996). The oil rigs in question fit within this definition.

Additionally, workers on fixed drilling rigs are not on vessels, and therefore do not fall within the jurisdiction of the Jones Act. D.C. Thompson v. Crown Petroleum Corp., 418 F.2d 239, 240 (5th Cir.1969). In D.C. Thompson, the Fifth Circuit ruled that “the law is well-settled that a stationary, fixed platform, even though erected in coastal water, is not a vessel, and consequently plaintiff was in no sense of the word a seaman when he was injured.” Id. at 240. Therefore, under Fifth Circuit law, which the Court finds persuasive, the activities of these plaintiffs do not qualify them as seamen entitled to the Jones Act protections.

2. Dismissal of Original Removing Defendants

The Court also agrees that federal subject matter jurisdiction is not destroyed because both defendants who initiated removal have since been dismissed. A case arises under federal law if, at the time of removal, the success of the plaintiffs claim depends on the application of federal law. See Smith v. Kansas City Title and Trust, Co., 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577 (1921); see also Bell v. Hood, 327 U.S. 678, 681-2, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

In this case, each defendant consented to the petition for removal filed by Nabors and Pool Offshore. (Defs.’ Memo, in Opp’n to Pis.’ Mot. Remand 24, doc. no. 58, 09-mc-103.) Whether fewer than all the removing defendants are no longer in the case makes no difference, so long as one of the remaining defendants opposes the motion to remand. Therefore, the fact that the removing defendants are no longer parties to the action does not disturb fed eral jurisdiction over plaintiffs’ OCSLA claims in this instance. 10

This Court finds that plaintiffs’ claims properly invoke OCSLA jurisdiction and do not fit within the purview of the Jones Act. Therefore, the motion to remand is denied with respect to the Category III plaintiffs.

V. CONCLUSION

For the reasons stated above, the motion to remand is granted in the cases in Categories I and II. These cases will be remanded to the appropriate Mississippi state court, because the defendants have failed to show that they are entitled to have their claims adjudicated in a federal forum. The motion to remand in the cases in Category III is denied, as federal question jurisdiction, under OCSLA, is appropriate.

An appropriate order follows.

ORDER

AND NOW, this 10th day of December 2009, it is hereby ORDERED that plaintiffs’ motion to remand (doc. no. 45) is GRANTED in part and DENIED in part. It is GRANTED as to the 354 cases in Category I and as to the 65 cases in Category II listed in Exhibit “B”, attached. It is DENIED as to the 25 cases in Category III, listed in Exhibit “C”, attached.

AND IT IS SO ORDERED.

_Exhibit “A”_

Mississippi District Mississippi Court State District Pennsylvania _Last Name_First Name County Court Cause No. Civil Action No.

Aaron Robert E. Jones 2006-141-CV3 09-cv-63215

Adcock Winford L. Smith 2006-76 09-ev-63581

Alexander Lloyd G. Smith 2006-78 09-cv-63582

Allen, Sr. Donald Jones 2006-140-CV3 09-cv-63217

Allred Wayne H. Jones 2006-135-CV3 09-cv-63218

Anderson Melvin Jefferson 2006-18 09-cv-63583

Anding Maxie Ray Jasper 16-0027 09-cv-63584

Ard Willie Glean Jones 2006-511-CV11 09-cv-63220

Arrington Milton L. Jasper 16-0029 09-ev-63586

Arlington J.C. Jasper 16-0028 09-CV-63585

Aultman Carlton Smith 2006-182 09-CV-63587

Baggett David Wayne Jasper 16-0026 09-cv-63588

Bailey, Jr. Lee Owen Jones 2006-515-CV11 09-CV-63203

Ballard Jerry D. Jones 2006-134-CV3 09-CV-63206

Banks Daniel M. Jasper 16-0030 09-CV-63589

Banks Johnny C. Jones 2006-144-CV3 09-CV-63205

Barnes, Jr. Tommy E. Smith 2006-221 09-CV-63590

Beard Julius R. Jones 2006-517-CV11 09-CV-63213

Beasley Earnest Smith 2006-104 09-ev-63591

Berry, Individually and as Representative of the Estate of Fred Berry, Deceased_ Fredna Jones 2006-228-CV3 09-ev-63012

Biglan Terry Lee Jones 2006-143-CV3 09-CV-63196

Bishop James Johnny Jones 2006-142-CV3 09-CV-63191

Boler, Jr. Cleveland D. Jones 2006-373-CV11 09-cv-63214

Bond Louis L. Smith 2006-152 09-CV-63592

Bounds George Jones 2006-102-CV3 09-ev-63194

Boykin Bobby G. Smith 2006-156 09-CV-63593

Boyles Burén Dale Jefferson 2006-13 09-CV-63595

Boyte James Jones 2006-132-CV3 09-cv-63209

Boyte George W. Smith 2006-179 09-cv-63596

Brady, Individually and as Representative of the Estate of Willie Douglas Hancock. Deceased_ Kelly Jones 2006^424-CVll 09-CV-63013

'Breland Hiram Jesse Jones 2006-495-CV11 09-CV-63210

Brewer Donnie C. Smith 2006-129 09-CV-63598

Brister David Smith 2006-115 09-CV-63599

Broadhead Thomas L. Smith 2006-70 09-cv-63600

Brown Isaac Smith 2006-71 09-CV-63291

Brown James Lavern Jones 2006-146-CV3 09-cv-63211

Brown Kenneth M. Jones 2006-122-CV3 09-CV-63207

Brown Randy K. Smith 2006-175 09-CV-63292

Brown Billy G. Smith 2006-207 09-CV-63693

Brown, Individually and as Representative of the Estate of Claude Brown, Jr., Deceased_ Estelle Ruth Smith 2006-117 09-CV-63601

Brown, Jr. Thomas Smith 2006-196 09-CV-63567

Bryant Harmon J. Jones 2006-194-CV3 09-cv-63204

Buckley Herbert Jones 2006-80-CV3 09-cv-63195

Burkhalter James Donald Smith 2006-118 09-cv-63568

Burrow Daniel G. Smith 2006-214 09-ev-63570

Bustin Michael Smith 2006-105 09-cv-63571

Butler Dale Jones 2006-124-CV3 09-CV-63189

Byrd Gary R. Smith 2006-65 09-CV-63572

Byrd Randy Jones 2006-408-CV11 09-cv-63188

Byrd Rex B. Jones 2006-96-CV3 09-ev-63190

Campbell Charles R. Jefferson 2006-34 09-cv-63573

Campbell Jon Jones 2006-497-CV11 09-cv-63146

Campbell Douglas E. Jefferson 2006-15 09-CV-63574

Carney Paul Jones 2006-117-CV3 09-cv-63144

Carr Henry S. Jones 2006-83-CV3 09-cv-63145

Carruth John Howard Smith 2006-119 09-CV-63575

Carter Audley Smith 2006-120 09-CV-63576

Carter, Individually and as Representative of the Estate of Jessie L. Carter, Deceased Ollie Mae Smith 2006-121 09-CV-63694

Cavin Jerry W. Jones 2006-196-CV3 09-CV-63139

Clanan Tim Jones 2006-385-CV11 09-cv-63136

Clark Braxton Smith 2006-69 09-CV-63577

Clark Robert W. Smith 2006-103 09-CV-63579

Clark Thomas A. Smith 2006-208 09-CV-63580

Clark Colin R. Smith 2006-97 09-CV-63578

Collins George B. Jasper 16-0033 09-CV-63278

Collins Roderick Wayne Smith 2006-122 09-CV-63279

Conn Danny Jones 2006-184-CV3 09-cv-63131

Cooley Thomas Smith 2006-64 09-CV-63280

Cooper, Jr. Henry S. Jones 2006-524-CV11 09-cv-63134

Cothern Jerry L. Smith 2006-174 09-CV-63281

Coulter Charles L. Jones 2006-148-CV3 09-CV-63133

Cowart Robert L. Jones 2006-422-CV11 09-CV-63137

Crager Larry Smith 2006-142 09-CV-63282

Cummings, Individually and as Representative of the Estate of John Cummings, Deceased Henrietta Jasper 16-0034 09-CV-63283

Cupit James Jones Edward 2006-223-CV3 09-cv-63135

Curtis Wilmer E. Smith 2006-191 09-cv-63284

Curtis, III Concie Jones 2006-97-CV3 09-cv-63138

Daley David Jones 2006-224-CV3 09-cv-63173

Darty, Individually and as Representative of the Estate of Charles Edward Darty, Deceased Teresa Smith 2006-155 09-CV-63690

Davis Terry W. Smith 2006-107 09-CV-63285

Dearman James Jasper 16-0057 09-CV-63286

Dearman Kenneth L. Smith 2006-172 09-cv-63287

Delk Garner Smith 2006-93 09-cv-63288

Doggett Willie E. Smith 2006-123 09-CV-63289

Donald Newt Smith 2006-96 09-ev-63264

Donald Willard Smith 2006-150 09-CV-63265

Donald James Smith 2006-106 09-ev-63290

Donaldson Dale Jones 2006-188-CV3 09-cv-63172

DuBose Kenneth A. Smith 2006-72 09-ev-63266

Dunigan Darrius P. Smith 2006-44 09-CV-63267

Dunigan Jerry L. Jones 2006-150-CV3 09-cv-63176

Dunn James Lowrey Smith 2006-124 09-cv-63268

Dunn Vandiver Jones 2006-527-CV11 09-ev-63174

Durr Helen Smith 2006-209 09-cv-63686

Dvorak Eugene F. Jones 2006-529-CV11 09-cv-63175

Easterling Ernie L. Smith 2006-128 09-cv-63269

Echols Douglas Jones 2006-375-CV11 09-ev-63154

Ellzey Rickey Smith 2006-74 09-CV-68270

Emler, Sr. Robert W. Smith 2006-125 09-cv-63271

Eubanks John Smith 2006-151 09-cv-63272

Evans Donnie E. Jones 2006-203-CV3 09-CV-63155

Evans Bennie Jake Jones 2006-151-CV3 09-cv-63156

Evans, Jr. Joseph C. Jefferson 2006-16 09-CV-63273

Ezell, Individually and as Representative of the Estate of Elbert C. Ezell, Deceased Shirley A. Jones 2006-152-CV3 09-CV-63017

Fairchild Kenneth Jones 2006-98-CV3 09-CV-63160

Fairley Bill Jones 2006-153-CV3 09-cv-63159

Farmer Lee Smith 2006-85 09-CV-63274

Fedrick, Sr. Charles Smith 2006-43 09-CV-63275

Floyd Kendall Jasper 16-0036 09-cv-63277

Floyd Turner Jones 2006-88-CV3 09-cv-63161

Ford, Jr. Ernest Jefferson 2006-25 09-cv-63253

Fountain Miles D. Jones 2006-116-CV3 09-CV-63163

Fountain Sr. Michael V. Jones 2006-154-CV3 09-CV-63162

Foxworth Sidney R. Jasper 16-0037 09-cv-63252

Freeman Larry M. Jasper 16-0017 09-CV-63251

Gardner Charles Jones 2006-99-CV3 09-CV-63050

Gardner Ralph Jones 2006-533-CV11 09-cv-63040

Gardner Robert Wayne Jasper 16-0038 09-CV-63250

Garner, Individually and as Representative of the Estate of Hubert Garner, Deceased James R. Jones 2006-235-CV3 09-ev-63008

Gatlin Richard G. Smith 2006-126 09-CV-63249

Gibson Bobby L. Jones 2006-387-CV11 09-CV-63049

Gilmore Authur Jones 2006-155-CV3 09-CV-63048

Goldman Grover Audell Jones 2006-157-CV3 09-CV-63046

Goldman, Individually and as Representative of the Estate of William Clarence Goldman, Deceased Patricia Smith 2006-161 09-CV-63687

Goode Stanley L. Smith 2006-178 09-CV-63248

Graham Kenneth Jones 2006-114-CV3 09-CV-63045

Grantham David Jones 2006-115-CV3 09-CV-63044

Graves Ted Justin Jones 2006-159-CV3 09-CV-63043

Green Billy R. Smith 2006-49 09-CV-63247

Green Gregory Smith 2006-198 09-ev-63246

Green Robert E. Jasper 16-0039 09-CV-63245

Greene Stephen C. Jasper 16-0040 09-cv-63244

Gregory Paul Smith 2006-177 09-cv-63243

Hall Ansler Dale Jones 2006-192-CV3 09-cv-63069

Hall Quincy L. Smith 2006-165 09-CV-63242

Hargon James Jasper 16-0059 09-cv-63241

Harris James E. Jones 2006-376-CV11 09-CV-63067

Harris Ricky Wayne Jones 2006-161-CV3 09-CV-63066

Harris Willie James Smith 2006-197 09-CV-63239

Harris Curtis Smith 2006-159 09-CV-63240

Harvey Thad Jones 2006-534-CV11 09-CV-63064

Hayles Jerry W. Jefferson 2006-26 09-CV-63233

Haynes Isaac Jones 2006-84-CV3 09-CV-63063

Heathcock Cecil Smith 2006-102 09-cv-63232

Heathcock Nolan Smith 2006-199 09-ev-

Heidel John Jones 2006-160-CV3 09-CV-63061

Henderson George Jasper 16-0041 09-CV-63231

Herrington Don F. Smith 2006-189 09-CV-63230

Herrington James V. Smith 2006-94 09-cv-63229

Herrington Tony Smith 2006-176 09-CV-63228

Higginbotham Katie Jones 2006-113-CV3 09-cv-63062

Hitson Thurman R. Smith 2006-127 09-CV-63263

Hodge W.C. Smith 2006-160 09-cv-63262

Holifield Charles Edward Jones 2006-163-CV3 09-CV-63059

Hollingshead James Jasper 16-0042 09-CV-63261

Hollingsworth Billy R. Smith 2006-170 09-CV-63260

Hollingsworth Melvin Smith 2006-213 09-CV-63259

Hollomon George H. Smith 2006-59 09-cv-63258

Holloway William L. Jones 2006-162-CV3 09-CV-63058

Holmes Donald W. Jones 2006-537-CV11 09-ev-63057

Hoover Charles Smith 2006-171 09-CV-63257

Howse Malcolm Paul Jones 2006-538-CV11 09-CV-63056

Huff Douglas Smith 2006-95 09-cv-63256

Hunt Randy R. Jones 2006-539-CV11 09-cv-63053

Hutto Ernest Wayne Jones 2006-411-CV11 09-CV-63052

Hutto Thomas E. Smith 2006-73 09-CV-63255

Hutto Thomas Larry Smith 2006-60 09-CV-63254

Jackson Larry E. Smith 2006-210 09-CV-63224

Jackson Leroy Jasper 16-0043 09-CV-63225

Jefcoat Jackson P. Smith 2006-101 09-CV-63226

Jernigan Jimmy D. Jasper 16-0062 09-CV-63227

Johnson Dan Wilson Smith 2006-111 09-CV-63238

Johnson Paul Bedford Jones 2006-540-CV11 09-CV-63180

Johnson, Jr. Roland Smith 2006-166 09-CV-63237

Jones James B. Jasper 16-0045 09-CV-63235

Jones Anthony E. Smith 2006-112 09-CV-63236

Jordan James Jasper 16-0025 09-CV-63234

Jordan Robert E. Jones 2006-425-CV11 09-CV-63182

Jordan Michael H. Jasper 16-0046 09-CV-63602

Keyes John E. Smith 2006-157 09-CV-63603

Keyes Joe Jones 2006-165-CV3 09-ev-63202

Kirk Jerry Smith 2006-86 09-CV-63604

Kirkendall, Sr. Kenneth Smith 2006-100 09-CV-63605

Kirkley Dewayne Smith 2006-216 09-CV-63606

Kittrell Plummer Jones 2006-498-CV11 09-CV-63179

Knight Billy Ray Smith 2006-173 09-cv-63607

Knotts, Sr. Tommy J. Jones 2006-104-CV3 09-CV-63200

Lambert Howard Smith 2006-67 09-ev-63689

Lambert Ralph W. Jefferson 2006-19 09-CV-63608

Landrum Henry E. Smith 2006-217 09-CV-63609

Langley Willis F. Jones 2006-168-CV3 09-cv-63165

Lee Michael R. Jones 2006-400-CV11 09-CV-63166

Leggett Edward J. Smith 2006-92 09-CV-63610

Leggett Kenneth D. Jones 2006-167-CV3 09-cv-63167

Leonard, Jr. Colon R. Jones 2006-211-CV3 09-cv-63168

Lewis, Sr. William Jasper 16-0060 09-CV-63611

Lindsey, Individually and Vanessa as Representative of the Estate of Curtis William Lindsey, Deceased Jasper 16-0047 09-CV-63691

Lines David W. Jones 2006-545-CV11 09-cv-63169

Lofton Robert Junior Jones 2006-166-CV3 09-CV-63170

Magee James G. Jones 2006-547-CV11 09-CV-63089

Maples Bobby F. Jefferson 2006-35 09-cv-63613

Mashburn, Jr. William W. Smith 2006-116 09-CV-63614

Mason Keith Jones 2006-191-CV3 09-cv-63088

McAllister Ecclus Jones 2006-551-CV11 09-cv-63085

McCaffrey Lucious Smith 2006-131 09-cv-63615

McCaffrey Roger W. Smith 2006-200 09-CV-63616

McCarty Daniel Smith 2006-42 09-CV-63617

McDonald Alfred Smith 2006-201 09-ev-63618

McDonald Ben F. Jones 2006-172-CV3 09-cv-63084

McFarland JohnW. Jones 2006-136-CV3 09-cv-63083

McGee Charles Smith 2006-218 09-cv-63619

McGill Ronnie Jones 2006-209-CV3 09-cv-63081

MeGraw William R. Jefferson 2006-22 09-CV-63620

McKenzie Thomas A. Jones 2006-427-CV11 09-CV-63080

McKinney Delton Alford Jefferson 2006-17 09-CV-63621

McLain Charles Irvin Smith 2006-89 09-CV-63622

McLain Clifford Jones 2006-553-CV11 09-cv-63079

McLain Jake W. Jones 2006-125-CV3 09-cv-63109

McLain Robert D. Jones 2006-171-CV3 09-CV-63078

McManus James Ray Jefferson 2006-20 09-cv-63623

Miller Loranzie Jones 2006-428-CV11 09-CV-63077

Miller Michael D. Jones 2006-554-CV11 09-CV-63076

Mills Bobby R. Jones 2006-170-CV3 09-cv-63075

Mills Owen L. Smith 2006-149 09-CV-63624

Moak Glen Smith 2006-183 09-CV-63625

Moore William Leon Smith 2006-87 09-cv-63626

Moore Willie E. Jones 2006-190-CV3 09-CV-63072

Morgan Otis L. Jasper 16-0048 09-CV-63627

Morris Robert E. Jones 2006-110-CV3 09-cv-63110

Mosley, Individually and Neena as Representative of Lee George Mosley, Deceased_ Smith 2006-90 09-cv-63692

Mullins Hugh W. Jones 2006-556-CV11 09-cv-63070

Nations Jimmy L. Jones 2006-558-CV11 09-CV-63183

Neely, Sr. Michael K. Smith 2006-169 09-CV-63629

Nelson James Jones 2006-133-CV3 09-CV-63184

Newell Isaac Jones 2006-560-CV11 09-CV-63185

Nichols Billy D. Smith 2006-188 09-CV-63630

Nickey Cecil J. Jones 2006-173-CV3 09-cv-63186

Nugent Shelby Claiborne 2006-34 09-cv-63631

Odom Gary L. Jones 2006-378-CV11 09-cv-63187

Oliver Rickey L. Smith 2006-180 09-cv-63632

Paeey Gene W. Smith 2006-211 09-cv-i

Palmer Joe L. Jones 2006-561-CV11 09-CV-63149

Palmer Morgan T. Jones 2006-200-CV3 09-cv-63148

Parker Jeffrey B. Smith 2006-181 09-CV-63634

Parnell Phillip Lynn Jasper 16-0015 09-CV-63635

Peak William H. Jones 2006-430-CV11 09-ev-63100

Perkins Clifton A. Smith 2006-148 09-cv-63636

Phillips Frazier M. Jones 2006-121-CV3 09-CV-63099

Pittman Alfred J. Smith 2006-61 09-CV-63637

Pitts Michael C. Smith 2006-47 09-ev-63638

Pitts Luther Jones 2006-176-CV3 09-cv-63098

Pitts Sam Smith 2006-141 09-cv-63639

Pitts Vandol Wayne “V.W.” Jasper 16-0049 09-cv-63640

Pitts, Individually and Patricia as Representative of the Gayle Estate of Homer Earl Pitts, Deceased_ Jones 2006-174-CV3 09-ev-63009

Plumer Ernest Jones 2006-449-CV11 09-CV-63097

Porter Carl O. Jasper 16-0050 09-CV-63641

Powell Herbert K. Jones 2006-108-CV3 09-cv-63096

Powell

Powell William Hinton Jones 2006-177-CV3 09-CV-63095

Presley, Individually and as Representative of the Estate of William Presslev. Deceased_ Alice Jones 2006-501-CV11 09-CV-63006

Preston Albert Jones 2006-416-CV11 09-CV-63093

Price Gary L. Jefferson 2006-21 09-CV-63642

Price George R. Jones 2006-502-CV11 09-cv-63092

Price Mark Jones 2006-562-CV11 09-CV-63091

Prine Charlie W. Smith 2006-40 09-CV-63696

Quick Billy Jones 2006-403-CV11 09-CV-63201

Ratliff Jason C. Jones 2006-563-CV11 09-CV-63108

Reed William Steve Jefferson 2006-29 09-cv-63643

Reid James D. Jones 2006-179-CV3 09-CV-63106

Rigney, Jr. Charles L. Smith 2006-45 09-cv-63645

Robbins Pearl Lavern Jones 2006-418-CV11 09-cv-63105

Robbins, Sr. Donald Smith 2006-185 09-CV-63646

Roberts Johnny W. Jasper 16-0051 09-cv-63648

Rodgers Julius E. Jefferson 2006-27 09-CV-63649

Rollins David Clinton Jasper 16-0024 09-CV-63650

Rollins Tommy Jones 2006-565-CV11 09-cv-63103

Runnels Carl A. Jones 2006-482-CV11 09-CV-63102

Russell James Lowery Jones 2006-112-CV3 09-CV-63151

Russell Larry Jones 2006-199-CV3 09-CV-63150

Russell William H. Smith 2006-140 09-cv-63651

Russell David P. Jones 2006-178-CV3 09-CV-63152

Rutland Billy Joe Smith 2006-139 09-CV-63652

Sanders Charles David Jones 2006-567-CV11 09-ev-63039

Saul J.M. Jones 2006-181-CV3 09-CV-63037

Saul, Jr. Tom M. Jones 2006-120-CV3 09-cv-63036

Sauls, Individually and as Representative of the Estate of Kenneth L. Sauls. Deceased___ Betty Jones 2006-419-CV11 09-CV-63004

Scarbrough Arthur L. Jasper 16-0065 09-cv-63653

Short Jesse James Jones 2006-225-CV3 09-CV-63035

Simmons Thomas E. Jones 2006-405-CV11 09-cv-63034

Sims Charles R. Jones 2006-89-CV3 09-CV-63033

Sims Gary B. Jefferson 2006-30 09-CV-63654

Sims, Sr. JohnW. Jasper 16-0052 09-CV-63655

Smith Charles Jones 2006-389-CV11 09-CV-63032

Smith Ervin Smith 2006-219 09-CV-63656

Smith Willis T. Smith 2006-80 09-cv-63659

Smith Charles R. Jones 2006-231-CV3 09-cv-63030

Smith Elmer H. Smith 2006-66 09-CV-63697

Smith Kelcie Dale Jones 2006-138-CV3 09-cv-63029

Smith Vince Edward Jasper 16-0023 09-CV-63658

Smith, Jr. Joe Jones 2006-379-CV11 09-CV-63028

Smith, Sr. Darrell D. Jones 2006-210-CV3 09-CV-63027

Speights James C. Smith 2006-168 09-CV-63660

Spence George Ross Jones 2006-406-CV11 09-CV-63026

Spiars Bobby Smith 2006-215 09-CV-63661

Spiers Joseph Jones 2006-505-CV11 09-CV-63025

Spradley Joseph Jones 2006-119-CV3 09-CV-63024

Spradley Stephen V. Jasper 16-0016 09-CV-63662

Stampley Charlie A. Jefferson 2006-32 09-CV-63663

Stanley David Foster Jefferson 2006-33 09-ev-63664

Stewart, Individually Frances Jones 2006-559-CV11 09-cv-63015 and as Representative of the Estate of Floyd L. Nettles, Deceased_

Stinson Walter E. Jones 2006-396-CV11 09-cv-63021

Street William J. Smith 2006-62 09-CV-63665

Strickland Melton L. Smith 2006-138 09-cv-63666

Sullivan Corbit Jones 2006-198-CV3 09-cv-63020

Sykes Dodd Jones 2006-180-CV3 09-cv-63019 _Mitchell_

Tageant Louis Jefferson 2006-09 09-cv-63667

Tanner Daryl Ray Jones 2006-506-CV11 09-cv-63116

Tanner, Jr. Edward Smith 2006-195 09-ev-63668

Tatum William A. Jones 2006-380-CV11 09-cv-63117

Taylor, Individually and Lisa Jones 2006-543-CV11 09-cv-63014 as Representative of the Estate of Clarence Kelly, Sr., Deceased_

Teachey Jerry L. Jones 2006-571-CV11 09-cv-63115

Terrell Leroy Jones 2006-572-CV11 09-ev-63114

Thompson • Joe R. Jones 2006-489-CV11 09-cv-63113

Thompson, Individually Dimple I. Jones 2006-381-CV11 09-cv-63003 and as Representative of the Estate of Marvin Thompson. Deceased_

Toney Lester Jones 2006-577-CV11 09-cv-63112 Leroy

Townsend Larry W. Smith 2006-130 09-CV-63670

Tucker William Smith 2006-79 09-ev-63671 _Clyde_

Turner James M. Jones 2006-197-CV3 09-cv-63111

Upshaw Dewey Smith 2006-99 09-cv-63672 _Wayne_

Upshaw Jerry Smith 2006-98 09-CV-63673

Upton Joel P. Jones 2006-578-CV11 09-cv-63199

Wade Robert Earl Smith 2006-110 09-CV-63674

Wagley

Billy J.

Smith

2006-109

09-cv-63675

Wallace

James C. Jones

2006-86-CV3

09-cv-63129

Waller

Pauline

Jones

2006-397-CV11 09-CV-63128

Walley

James R.

2006-91-CV3

09-CV-63126

Ward, Jr.

Henry

2006-382-CV11 09-CV-63127

Watts

James E.

2006-508-CV11 09-CV-63123

Weeks

Johnny R. Jasper

16-0055

09-CV-63676

Weir, Jr.

Freddie

2006-220

09-ev-63677

Wells, Sr.

Bobby G. Smith

2006-137

09-CV-63678

West

Charlie E. Jasper

16-0053

09-cv-63679

Dalton L. Smith

2006-11

09-cv-63680

Phillip

2006-383-CV11 09-CV-63122

Thomas E. Jasper

16-0054

09-CV-63681

Westerfield

Earl

Jasper

16-0022

09-CV-63682

White

Larry

James

2006-108

09-CV-63683

Randy J. Jones

2006-390-CV11 09-CV-63121

White, Jr.

J.B.

2006-92-CV3

09-ev-63120

White, Sr.

2006-136

09-CV-69684

Wilkinson

Reba N.

2006-158

09-CV-69685

Williams

David

Griffin

2006-579-CV11 09-cv-63119

Mathyngale

“Buck”

2006-26-CV3

09-CV-63118

Wise

Peter

2006-82

09-CV-63698

Yelverton, Jr.

John D.

2006-93-CV3

09-cv-63197

Exhibit “B” Mississippi

District Mississippi Court State District Pennsylvania

First Name County Court Cause No. Civil Action No. Last Name

Adcock David Jones 2007-102-CV9 09-cv-63216

Ard Robert E. Jones 2007-104-CV9 09-cv-63219

Atwood Gene B. Jones 2007-105-CV9 09-CV-63221

Aultman, Sr. Mozell Jones 2007-106-CV9 09-cv-63222

Bacon Edwai’d Jones 2007-110-CV9 09-cv-i

Beard William M. Jones 2007-115-CV9 09-CV-63208

Bevis Jimmie L. Jones 2007-116-CV9 09-CV-63193

Boleware David Jones 2007-117-CV9 09-CV-63192

Boykin C.N. Jefferson 2007-101 09-CV-63594

Brent Fred Jefferson 2007-98 09-CV-63597

Brownell William E. Jones 2007-119-CV9 09-CV-63011

Burrell Vernon Smith 2007-259 09-CV-63569

Chapman Alford B. Jones 2007-125-CV9 09-ev-63141

Chipmon David Jones 2007-126-CV9 09-CV-63140

Collins Herman Jones 2007-129-CV9 09-CV-63143

Collins Larry Jones 2007-130-CV9 09-cv-63130

Cook Charles T. Jones 2007-131-CV9 09-CV-63132

Davis, Individually and as Representative of the Estate of Don M. Davis, Deceased_ Stephanie Jones 2007-136-CV9 09-CV-63016

Easterling Sherman Jones 2007-140-CV9 09-CV-63153

Echols Charles Jones 2007-141-CV9 09-cv-63157

Evans Jacob Jones 2007-142-CV9 09-cv-63158

Feduceia Joe Jones 2007-144-CV9 09-CV-63276

Butler, Individually and as Representative of the Estate of Bennie Floyd, Deceased Krysten Lambert Jones 2007-145-CV9 09-CV-63018

Foster Leonard W. Jones 2007-146-CV9 09-CV-63164

Gaines, Jr. Eddie Lee Jones 2007-147-CV9 09-cv-63051

Glass Melvin R. Jones 2007-149-CV9 09-CV-63047

Gregory Rudolph Jones 2007-151-CV9 09-CV-63042

Gunter Jerrell J. Jones 2007-152-CV9 09-ev-63041

Hamrick, Sr. Charles Jones 2007-155-CV9 09-cv-63068

Harrison Ex Earl Jones 2007-157-CV9 09-cv-63065

Hodges Richard Jones 2007-161-CV9 09-cv-63060

Howard Johnny Jones 2007-162-CV9 09-CV-63055

Hudson, III Ompy L. Jones 2007-163-CV9 09-CV-63054

Ingle, Individually and as Representative of the Estate of W.C. Ingle, Deceased Audrey Nell Jefferson 2007-100 09-CV-63695

Richardson, Individually and as Representative of the Estate of Troyee Johnson, Deceased_ Judith Jones 2007-165-CV9 09-CV-63005

Jordan Johnny Jones 2007-166-CV9 09-ev-63181

Kennedy Ross A. Jones 2007-167-CV9 09-cv-63177

Kerben, Jr. Sidney L. Jones 2007-168-CV9 09-cv-63178

Lofton Robert Jasper 17-0065 09-CV-63612

Madison Winston Jones 2007-171-CV9 09-cv-63090

Mahaffey, Jr. Alton J. Jones 2007-172-CV9 09-CV-63087

Mayhugh, Jr. Kenneth Jones 2007-175-CV9 09-CV-63086

McFarland Mark Jones 2007-177-CV9 09-cv-63082

McNair, Individually and as Representative of the Estate of L.B. McNair, Deceased Betty Jones 2007-178-CV9 09-CV-63010

Mire, Sr. Bobby W. Jones 2007-179-CV9 09-cv-63074

Moak Dennis G. Jones 2007-180-CV9 09-cv-63073

Motley Vincent Jones 2007-184-CV9 09-cv-63071

Murray, Sr. Bobby Claiborne 2007-165 09-cv-63628

Patton J.E. Jones 2007-188-CV9 09-CV-63147

Pevey, Individually and as Representative of the Estate of James E. Pevey, Deceased_ Chrystelle Jones 2007-189-CV9 09-cv-63007

Prather Daniel L. Jones 2007-192-CV9 09-cv-63094

Ramage Jackie D. Jones 2007-197-CV9 09-CV-63107

Revette, Jr. Harvey Richard Smith 2007-260 09-CV-63644

Roberts Jimmy Jasper 17-0064 09-CV-63647

Rollins Larry Jessie Jones 2007-200-CV9 09-cv-63104

Rushing Mitchell R. Jones 2007-201-CV9 09-cv-63101

Sasser, Jr. Aaron Jones 2007-203-CV9 09-cv-63038

Smith Charles C. Jones 2007-205-CV9 09-CV-63031

Smith Mark Jefferson 2007-104 09-CV-63657

Stephens Joe Jones 2007-209-CV9 09-CV-63023

Stewart Timothy L. Jones 2007-210-CY9 09-CV-63022

Thornton Harold D. Jefferson 2007-103 09-CV-63669

Usry Kenneth Jones 2007-217-CV9 09-CV-63198

Warnock Jerry L. Jones 2007-219-CV9 09-CV-63125

Watkins Ted Jones 2007-220-CV9 09-CV-63124

Exhibit “C’:

Last Name First Name Mississippi District Court County Mississippi State District Court Cause No. Pennsylvania Civil Action No.

Brady Clinton L. Jones 2006-407-CV11 5:08-cv-87071-ER

Broom Harvey E. Jones 2006-519-CV11 5:08-cv-87069-ER

Bullock Deloice Jones 2006-520-CV11 5:08-cv-87072-ER

Crawford Joseph Jones 2006-394-CV11 5:08-cv-87080-ER

Curd Patrick Jones 2006-525-CV11 5:08-cv-87083-ER

Daniels Willie Lee Jones 2006-409-CV11 5:08-ev-87068-ER

Daughdrill Dan Mack Jones 2006-526-CV11 5:08-cv-87081-ER

Dearman Rolland Jones 2006-410-CV11 5:08-cv-87070-ER

Dixon George D. Jones 2006-374-CV11 5:08-cv-87077-ER

Emler Louie T. Jones 2006^64-CVll 5:08-cv-87084-ER

Faust Johnny W. Jones 2006-90-CV3 5:08-ev-8589<MER

Henry A. Jones 2006^68-CVU 5:08-cv-87079-ER Herring (deceased)

Livingston_Daniel_Jones_2006-94-CV3_5:08-cv-85987-ER

Lord, Sr._Archie A. Smith_16-0056_5:08-cv-87030-ER

McPhail_Ralph T. Jones 2006-345-CV9 5:08-cv-87048-ER

Mounteer, Sr._Eliel K. Jones 2006-555-CV11 5:08-cv-87073~ER

Newsom_Joseph_Jones_16-0018_5:08-cv-87076-ER

Newsom_Lonnie_Jones_2006-414-CV11 5:08-cv-87031-ER

Piner_Ted L._Jones_2006-415-CV11 5:08-cv-87078-ER

Polk Brandon Jones 2006-206-CV3 5:08-cv-85986-ER

_Kaye_

Polk_Dale F. Jones 2006-85-CV3 5:08-cv-85985-ER

Rawls_Ray C._Jones_2006-417-CV11 5:08-cv-87075-ER

Smith (deceased)_Cleophus Jones_2006-75_5:08-cv-87032-ER

Thomas_Tony N. Jones_2006-573-CV11 5:08-cv-87082-ER

Wallace_Terry_Jones_2006-491-CV11 5:08-cv-87074-ER

1 . Union Carbide Corp. filed a response in opposition to this motion to remand, which was joined by co-defendants ConocoPhillips and Montello, Inc. Oilfield Service & Supply, Inc. filed an individual response opposing the motion.

2 . Defendants, in their response, note that the Court has discouraged the filing of mass motions that apply to many plaintiffs in MDL-875. While this point is noted, plaintiffs affected by the instant motion have been referred to Magistrate Judge David R. Straw-bridge as a group. Additionally, each of the plaintiffs in each of the four categories is identified by name in exhibit "A” of the motion to remand. Denying plaintiffs’ motion on the grounds of MDL-875 policy would simply result in the filing of an identical motion in each of 444 cases.

The defendants’ argument takes the Court's policy too far in this instance. Previous opinions of the Court have discouraged motions attempting to change case-wide policy (i.e., mass dismissals for failure to comply with administrative orders or mass remands because the MDL is “not working”). See In re Asbestos Prods. Liab. Litig., 614 F.Supp.2d 550, 554 (E.D.Pa.2009); In re Asbestos Prods. Liab. Litig., 254 F.R.D. 266, 268 (E.D.Pa. 2008). The instant motion is based on fairly specific facts with regard to a discrete set of plaintiffs. The plaintiffs are represented by one law firm and fall neatly into three categories. The utility of dealing with these cases as one group outweighs the policy considerations of an overly strict "one-plaintiff, one-motion” program.

3 .See, e.g., In re New England Mut. Life Ins. Co. Sales Practices Litig., 324 F.Supp.2d 288, 297 (D.Mass.2004) ("In the ordinary course, questions of federal law in MDL-transferred cases are governed by the law of the transferee circuit.”); In re Nat’l Century Fin. Enters., Inc., Inv. Litig. 323 F.Supp.2d 861, 876 (S.D.Ohio 2004) ("Thus, the rule in multidistrict litigation is that the transferee court, in interpreting federal law, should apply the law of its own circuit rather than the law of the transferor court’s circuit”); In re Methyl Tertiary Butyl Ether (“MTBE'’) Prods. Liab. Litig., No. 1:00-1898, 2005 WL 106936, at *5 (S.D.N.Y. Jan. 18, 2005) (holding that in interpreting and applying “the federal constitution, any federal statute, or the Federal Rules of Civil Procedure” the court was bound "only by the opinions of the Supreme Court and Second Circuit.”).

4 . See Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (evaluating applicable law after change of venue under 28 U.S.C. § 1404(a)); see also In re Dow Sarabond Prods. Liab. Litig., 666 F.Supp. 1466, 1468 (D.Colo.1987) (citing In re Agent Orange Prod. Liab. Litig., 580 F.Supp. 690, 695 (E.D.N.Y.1984)) (evaluating applicable law after change of venue under 28 U.S.C. § 1407).

5 . The Court notes that the actions commenced in 2004 were massive multi-plaintiff actions. The Mississippi state court severed these plaintiffs and required each to file amended complaints. Each plaintiff filed an amended complaint in 2006. Even if the Court calculates the one year time period from the date that each amended complaint was filed, the petition for removal was not filed until well after the one year limitation had passed. (Pis.’ Mot. Remand 15, doc. no. 44, 09-mc-103.)

6 . In support of this holding, the Third Circuit cited to Tedford v. Warner-Lambert Co., 327 F.3d 423, 426-7 (5th Cir.2003), which is the case most heavily relied on by defendants in support of an equitable exception.

7 . Although the plaintiffs assert that Oilfield Service's motion for summary judgment is not an "other paper” that would trigger the 30 day window for removal in § 1446(b), they do not make the argument in their motion to remand that removal was not effected within the statutorily mandated 30 days. See (Defs.’ Resp. in Opp’n to Remand 16 n. 10, doc. no. 58, 09-mc-103.) The Court, therefore, will treat this issue as uncontested.

8 . Given that the Court has found that Oilfield Service is not fraudulently joined, see infra, even if the defendants could show diligence, they would be unable to show "flagrant forum manipulation” by plaintiffs. See Namey, 534 F.Supp.2d at 498; see also Lee, 2006 WL 3511160, at *5.

9 . Judge Gex, in the five motions to remand that were ruled on before transfer to the MDL, rejected defendants fraudulent joinder argument. While the instant plaintiffs' cases were not expressly considered by Judge Gex, it is notable that Judge Gex found that Oilfield Service was not fraudulently joined in five similar cases.

10 . See Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1281 (3d Cir.1993) ("A district court has federal question jurisdiction in any case where a plaintiff with standing makes a non-frivolous allegation that he or she is entitled to relief because the defendant's conduct violated a federal statute.”). Therefore, federal subject matter jurisdiction is not based on which parties remain in the case, rather, it is based on the claims asserted by a plaintiff. Since the claims of the 25 plaintiffs in Category III fall squarely within the grant of jurisdiction conveyed in OCSLA, and the defendants timely opposed plaintiffs’ motion to remand, the exercise of federal jurisdiction is appropriate.