[UPDATE: Remanded. BNSF charged with fees for the improper removal. U.S. Dist. Judge Michael J. Davis, C.J., here.]
David and Judy Brost tragically died when their car, driven by David Brost, was hit by a BNSF train two years ago. Trustee/Next-of-Kin for Judy Brost brought a wrongful death action in state court, naming the BNSF railroad and the estate of David Brost as defendants.
BNSF removed the case to federal court based on diversity jurisdiction — normally unavailable when any one plaintiff and any one defendant are “non-diverse,” that is, are from the same state, which was the case here. BNSF, however, removed Brost’s case to federal court saying that David Brost was “fraudulently joined” to defeat diversity jurisdiction.
Fraudulent joinder?! That’s when a plaintiff “files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal.” Minnesota Litigator would have thought that the railroad might want to think long and hard before taking the position that claim against the car driver is “frivolous” or “illegitimate” because, if so, who would have been responsible for the accident? (The common law doctrine of interspousal immunity was eliminated in Minnesota, incidentally, in 1969.)
The point was not lost on plaintiff’s counsel, who invite the railroad to stipulate that there is no fault on the driver, in which case they would be more than happy to have a jury in federal court decide the case against sole defendant BNSF. Plaintiff’s brief in support of remand is here.