United States District Court, D. Montana, Great Falls Division
KOREY L. AARSTAD, et al., Plaintiffs,
BNSF RAILWAY COMPANY, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS.
MORRIS UNITED STATES DISTRICT COURT JUDGE.
Korey L. Aarstad, along with 191 other named plaintiffs
(collectively “Plaintiffs”), sought an order
remanding this case to state court on the basis that the case
was improperly removed from Montana state court based on
defendant John Swing's (“Mr. Swing”) Montana
citizenship. Defendants BNSF Railway Company and Mr. Swing
(collectively “BNSF”) objected, stating the case
was properly removed as a mass action. United States
Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on January 23, 2018.
timely filed an objection on February 6, 2018. (Doc. 61).
Defendants claim Judge Johnston incorrectly applied the local
controversy exception. (Doc. 61 at 2). The Plaintiffs timely
filed an objection to preserve arguments in regard to Judge
Johnston's remand recommendation on February 6, 2018.
Court reviews de novo Findings and Recommendations
to which a party timely objects. 28 U.S.C. § 636(b)(1).
The Court reviews for clear error portions of Judge
Johnston's Findings and Recommendations to which the
parties specifically objected. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th
1963, the W.R. Grace & Co. (“WRG”) purchased
a vermiculite mill in Libby, Montana, from the Zolonite
Company. WRG operated the mill until 1990. (Doc. 8 at 2).
Plaintiffs were all workers of WRG or Zolonite Company. As a
result of toxic asbestos present in the vermiculite ore,
thousands of residents of Libby have been diagnosed with
mesothelioma, asbestosis, or other asbestos-related diseases
over the course of several decades. Id. As a result,
there are hundreds of asbestos related cases adjudicated or
pending in Montana state courts. (Doc. 14 at 5).
BNSF is a railway company incorporated in Delaware, with its
headquarters in Texas. (Doc. 8 at 1). At all times pertinent
to this case, BNSF commenced railway operations in the town
of Libby, Montana. Mr. Swing served as a managing agent for
BNSF and is a resident of Lincoln County, Montana.
(Id.) Mr. Swing worked for BNSF from roughly 1970 to
1984. (Doc. 14-3 at 2).
result of the bankruptcy of WRG, many Plaintiffs have had
their cases stayed pending the bankruptcy process. Cases
against BNSF have been subject to an injunction since 2007.
(Doc. 14 at 5). Due to the disjunctive nature of the
underlying claims, as well as the varying exposure events and
dates of diagnosis, Plaintiffs' claims normally would be
subject to several different statutes of limitations. The
tolling period for Plaintiffs' claims ended in September
of 2016, however, due to various tolling agreements between
the parties and the pending bankruptcy action. (Id.
defendant may remove an action from state court to a federal
court if the federal court would have possessed original
subject matter jurisdiction over the matter. 28 U.S.C. §
1441. A federal court possesses original jurisdiction if the
parties are completely diverse and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). Complete
diversity means that no defendant is a citizen of the same
state as any plaintiff. The party seeking to remove an action
to federal court holds the burden to show federal
jurisdiction exists and that removal is proper. De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
federal court possesses original jurisdiction over certain
class actions which have minimum diversity and an amount in
controversy exceeding five million dollars, exclusive of
costs and interests. 28 U.S.C. § 1332(d)(2). For the
purposes of federal subject matter jurisdiction, a class
action also includes a “mass action, ” which is
defined as “any civil action . . . in which monetary
relief claims of 100 or more persons are proposed to be tried
jointly on the ground that the plaintiffs' claims involve
a common questions of law or fact[.]” 28 U.S.C. §
1332 (d)(11)(B)(i). According to subsection (d)(11)(A) of the
same statute, “a mass action shall be deemed to be a
class action, ” and is removable pursuant to
“mass action” is a class action which can be
removed to federal court if it meets the following elements:
(1) numerosity: the action must involve the monetary claims
of 100 plaintiffs or more; (2) amount in controversy: $5,
000, 000 or more in the aggregate (excluding interests and
costs); (3) diversity: minimal diversity must be met, and;
(4) commonality: plaintiffs' claims involve common